EXHIBIT 4.8
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 30, 2003 (this
"Agreement"), by the shareholder of Arotech Corporation, a Delaware corporation
(f/k/a Electric Fuel Corporation, the "Company") listed on the signature pages
hereto under the heading "Shareholder" (the "Shareholder"), the Company and the
investors listed on the signature pages hereto under the heading "Investors")
(each, an "Investor" and collectively, the "Investors").
WHEREAS, the Investors and the Company have entered into a (i)
Securities Purchase Agreement, dated as of the date hereof (the "Securities
Purchase Agreement"), pursuant to which, among other things, the Company has
agreed to issue and sell to the Investors and the Investors have agreed to
purchase, an aggregate of up to $11 million of 8% secured convertible debentures
of the Company (together with any debentures issued in replacement or exchange
thereof in accordance with the terms thereof, the "Debentures"), which
Debentures shall be convertible into shares of Common Stock, par value $0.01 per
share, of the Company (the "Common Shares"), in accordance with the terms of the
Debentures;
WHEREAS, as of the date hereof, the Shareholder owns 3,037,869
Common Shares and is co-trustee of the Rose Gross Charitable Foundation (the
"Foundation") which owns 450,665 Common Shares, which represent in the aggregate
8.8% of the total issued and outstanding capital stock of the Company ; and
WHEREAS, as a condition to the willingness of the Investors to
enter into the Securities Purchase Agreement and to consummate the transactions
contemplated thereby (collectively, the "Transaction"), the Investors have
required that the Shareholder agree, and in order to induce the Investors to
enter into the Securities Purchase Agreement, the Shareholder has agreed, to
enter into this Agreement with respect to all the Common Shares now owned and
which may hereafter be acquired by the Shareholders (the "Shares") and any other
securities, if any, which the Shareholder is entitled to vote at any meeting of
shareholders of the Company (the "Other Securities").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
PROXY OF THE STOCKHOLDERS
SECTION 1.01. Voting Agreement. The Shareholder hereby agrees
that at any meeting of the stockholders of the Company, however called, and in
any action by consent of the Company, of the shareholders shall vote the Shares
and the Other Securities (to the extent the Shareholder has the right to vote
such Other Securities) in favor of any matters relating to the Transaction,
including, without limitation the matters described in Section 4.11 of the
Securities Purchase Agreement. The obligations of the Shareholder under this
Section 1.01 shall terminate on the later to occur of (i) the occurrence and
tabulation of votes at the shareholder meeting of the Company contemplated by
Section 4.11 of the Securities Purchase Agreement and (ii) the date that is
December 31, 2004.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
The Shareholder hereby represents and warrants to the
Investors as follows:
SECTION 2.01. Authority Relative to This Agreement. Each
Shareholder has all necessary power and authority to execute and deliver this
Agreement, to perform his or its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Shareholder and constitutes a legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms.
SECTION 2.02. No Conflict. (a) The execution and delivery of
this Agreement by such Shareholder do not, and the performance of this Agreement
by such Shareholder shall not, (i) conflict with or violate any federal, state
or local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to such Shareholder or by which the Shares or the Other Securities
owned by such Shareholder are bound or affected or (ii) result in any breach of
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares or the Other Securities owned by such
Shareholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Shareholder is a party or by which such Shareholder or the Shares
or Other Securities owned by such Shareholder are bound or affected.
(b) The execution and delivery of this Agreement by such
Shareholder do not, and the performance of this Agreement by such Shareholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental entity except for filings by the
Shareholder with the Securities and Exchange Commission (which shall include an
amendment to the Shareholder's 13D filing, including attached a copy of this
Agreement as an exhibit thereto).
SECTION 2.03. Title to the Shares. As of the date hereof, each
Shareholder is the beneficial owner of the number of Common Shares set forth
opposite such Shareholder's name on Appendix A hereto entitled to vote, without
restriction, on all matters brought before holders of capital stock, which
Shares represent on the date hereof the percentage of the outstanding Common
Shares set forth on such Appendix. Such Shares are all the securities of the
Company owned, either of record or beneficially, by such Shareholder other than
stock options for the purchase of up to 35,000 Common Shares of the Company.
Such Shares are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on such
Shareholder's voting rights, charges and other encumbrances of any nature
whatsoever other than the Voting Agreement, dated September 30, 1996 (the
"Shareholder Voting Agreement"), as amended among the Shareholder, Robert
Ehrlich and Yehuda Harats and, with respect to the Shares held by the
Foundation, the Shareholder is only the co-trustee of the Foundation and the
Shares would be subject to any applicable restrictions contained in the
indenture of trust creating the Foundation. No Shareholder has appointed or
granted any proxy, which appointment or grant is still effective, with respect
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to the Shares or Other Securities owned by such Shareholder except as may be
provided in the Shareholder Voting Agreement.
ARTICLE III
COVENANTS
SECTION 3.01. Company Cooperation. The Company agrees to use
its best efforts to ensure that at any time in which any shareholder approval is
required pursuant to Section 4.11 of the Securities Purchase Agreement, it will
cause holders of Common Shares or Other Securities representing the percentage
of outstanding capital stock required to vote in favor of the Transaction in
order for the Company to comply with its obligations under Section 4.11 of the
Securities Purchase Agreement to become party to and bound by the terms and
conditions of this Agreement and the Common Shares of the Company and Other
Securities held by such holders to be subject to the terms and conditions of
this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Further Assurances. Each Shareholder will
execute and deliver all such further documents and instruments and take all such
further action as may be necessary in order to consummate the transactions
contemplated hereby.
SECTION 4.02. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that any Investor
(without being joined by any other Investor) shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or in
equity.
SECTION 4.03. Entire Agreement. This Agreement constitutes the
entire agreement between the Investors, the Shareholders and the Company (other
than the Securities Purchase Agreement) with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, among the Investors, the Shareholders and the Company with respect to the
subject matter hereof.
SECTION 4.04. Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 4.05. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
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SECTION 4.06. Jurisdiction. The parties hereby agree that all
actions or proceedings arising directly or indirectly from or in connection with
this Agreement shall be litigated only in the state and federal courts located
in Philadelphia, Pennsylvania. The parties consent to the jurisdiction and venue
of the foregoing courts and consent that any process or notice of motion or
other application to either of said courts or a judge thereof may be served
inside or outside the State of Pennsylvania by registered mail, return receipt
requested, directed to the party being served at its address set forth in this
Agreement (and service so made shall be deemed complete three (3) days after the
same has been posted as aforesaid) or by personal service or in such other
manner as may be permissible under the rules of said courts. Each of the Company
and the Shareholder irrevocably waive, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such suit, action, or proceeding brought in such a court and any claim that
suit, action, or proceeding has been brought in an inconvenient forum. Each of
the Company and the Shareholder hereby waive any right to a jury trial in
connection with any litigation pursuant to this Agreement.
SECTION 4.07 Notice. A copy of all notices to the Shareholder
shall be sent to the Shareholder's counsel at the following address:
Steven M. Plon, Esquire
Plon & Associates, P.C.
1835 Market Street, Suite 1215
Philadelphia, PA 19103
Fax No. 215-979-7619
Email: splon@plonlaw.com
SECTION 4.08. Successors/Transferees. This Agreement shall be
binding upon the parties' respective successors, heirs, personal representatives
and assigns; provided, however, that this Agreement shall not be binding upon
any purchasers of Shareholder's Shares or Other Securities who purchased the
Shareholder's Shares or Other Securities in a bona fide arms-length transaction,
which may include such a private or public sale of such Shares or Other
Securities.
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IN WITNESS WHEREOF, the Shareholder and the Company has duly
executed this Agreement.
THE COMPANY:
AEROTECH CORPORATION
By: ___________________________
Name:
Title:
Dated: September __, 2003
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SHAREHOLDER:
Dated: September 30, 2003 ___________________________
Leon S. Gross
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Agreed and Accepted
as of: September __, 2003
INVESTORS:
SMITHFIELD FIDUCIARY LLC
By:
---------------------------------------------------------------
Name:
Title:
OMICRON MASTER TRUST
By:
---------------------------------------------------------------
Name:
Title:
PORTSIDE GROWTH AND OPPORTUNITY FUND
By: _________________________
Name:
Title:
MAINFIELD ENTERPRISES INC.
By: _________________________
Name:
Title:
CRANSHIRE CAPITAL L.P.
By: _________________________
Name:
Title:
CLEVELAND OVERSEAS LTD.
By: _________________________
Name:
Title:
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APPENDIX A
Shareholder Shares Other Securities Total Percentage of
- ----------- ------ ---------------- Shares Outstanding
-----------
Leon S. Gross, as co trustee 450,665
of the Rose Gross Charitable
Foundation
Leon S. Gross 3,037,869
TOTAL 3,488,534 8.8% (in the aggregate,
including Foundation's
shares)
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