EXHIBIT 4.7
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 30, 2003 (this
"Agreement"), by the shareholders of Arotech Corporation, a Delaware corporation
(f/k/a Electric Fuel Corporation, the "Company") listed on the signature pages
hereto under the heading "Shareholders" (each, a "Shareholder" and collectively,
the "Shareholders"), 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 Shareholders own
collectively 688,166 Common Shares, which represent in the aggregate
approximately 1.7% 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 Shareholders agree, and in order to induce the Investors to
enter into the Securities Purchase Agreement, the Shareholders have 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 Shareholders are entitled to vote at any meeting
of sharehoholders 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. Each Shareholder hereby agrees
that at any meeting of the stockholders of the Company, however called, and in
any action by consent of the Company, each of the Shareholders shall vote the
Shares and the Other Securities: (a) in favor of any matters relating to the
Transaction, including, without limitation the matters described in Section 4.11
of the Securities Purchase Agreement; and (b) against any proposal or any other
corporate action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under Section 4.11 of the Securities Purchase Agreement or which could result in
any of the conditions to the Company's obligations under Section 4.11 of the
Securities Purchase Agreement not being fulfilled. Each Shareholder acknowledges
receipt and review of a copy of the Securities Purchase Agreement and the
Debentures. The obligations of the Shareholders under this Section 1.01 shall
terminate immediately following the occurrence and tabulation of votes at the
shareholder meeting of the Company contemplated by Section 4.11 of the
Securities Purchase Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Shareholder hereby represents and warrants, severally but
not jointly, 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.
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. 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. No Shareholder has appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Shares or Other Securities
owned by such Shareholder.
2
ARTICLE III
COVENANTS
SECTION 3.01. No Disposition or Encumbrance of Shares. Each
Shareholder hereby covenants and agrees that, except as contemplated by this
Agreement, such Shareholder has not, and shall not offer or agree to sell,
transfer, tender, assign, hypothecate or otherwise dispose of, grant a proxy or
power of attorney with respect to, or create or permit to exist any security
interest, lien, claim, pledge, option, right of first refusal, agreement,
limitation on any Shareholder's voting rights, charge or other encumbrance of
any nature whatsoever ("Encumbrance") with respect to the Shares or Other
Securities, directly or indirectly, initiate, solicit or encourage any person to
take actions which could reasonably be expected to lead to the occurrence of any
of the foregoing; provided, that such Shareholder may assign, sell or transfer
any Shares or Other Securities provided that any such recipient of such Shares
or Other Securities has delivered to the Company and each Investor a written
agreement in a form reasonably satisfactory to the Investors that such recipient
shall be bound by and the Shares and/or Other Securities so transferred,
assigned or sold shall remain subject to this Agreement.
SECTION 3.02. Company Cooperation. The Company hereby
covenants and agrees that it will not (and each Shareholder irrevocably and
unconditionally acknowledges and agrees that the Company will not (and waives
any rights against the Company in relation thereto) recognize any Encumbrance or
agreement on any of the Shares or Other Securities subject to this Agreement
unless the provisions of Section 3.01 have been complied with. 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. Any Investor shall be entitled to its reasonable attorneys' fees in any
action brought to enforce this Agreement in which it is the prevailing party.
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
3
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.
SECTION 4.06. Governing Law. 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 Supreme Court of the State of New
York or the United States District Court for the Southern District of New York
located in New York County, New York. 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 New York or the Southern District of New
York 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 Shareholders 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 Shareholders hereby waive any right to a jury trial in connection with any
litigation pursuant to this Agreement.
4
IN WITNESS WHEREOF, each Shareholder and the Company has duly
executed this Agreement.
THE COMPANY:
AEROTECH CORPORATION
By:
---------------------------
Name:
Title:
Dated: September __, 2003
SHAREHOLDERS:
Dated: September __, 2003
--------------------------------
Robert S. Ehrlich
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:
APPENDIX A
Percentage of Shares
Shareholder Shares Outstanding
----------- ------ -----------
Robert S. Ehrlich 688,166 1.7%