STOCKHOLDERS VOTING AGREEMENT Among Joel L. Levin, as Designated Agent and the Participating Stockholders identified on EXHIBIT A hereto Dated: December 9, 2008

Among

Xxxx X. Xxxxx, as Designated Agent

and the Participating Stockholders identified on EXHIBIT A hereto

Dated: December 9, 2008

TABLE OF CONTENTS


	Page
VOTING AGREEMENT		3

PROXY		3

POWERS AND DUTIES OF DESIGNATED AGENT		3-4

PURPOSE		4

CHANGES IN COMMON STOCK		4

REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS; INDEMNIFICATION		4-5

COVENANTS AND AGREEMENTS OF STOCKHOLDERS		5

RESIGNATION OF DESIGNATED AGENT		5

SUCCESSOR PROXY		5

TERM OF AGREEMENT		5

EFFECT OF TERMINATION		5

NOTICE		5

PAYMENT OF EXPENSES AND TAXES		5-6

AMENDMENT OF AGREEMENT		6

INJUNCTIVE RELIEF		6

CONSTRUCTION OF AGREEMENT		6

MISCELLANEOUS		6-7

EXHIBIT A		19

EXHIBIT B		20

STOCKHOLDERS VOTING AGREEMENT

This STOCKHOLDERS VOTING AGREEMENT made this 9th day of December, 2008 by and among Xxxx X Xxxxx, an individual (the “DESIGNATED AGENT”) and each of the stockholders identified on EXHIBIT A hereto (the ^“PARTICIPATING STOCKHOLDERS”, and together with the Designated Agent, collectively referred to herein as the “STOCKHOLDERS”).

WHEREAS, the Stockholders are each an owner of issued and outstanding shares of Common Stock, par value $0.001 per share (the “Stock”) of Spongetech Delivery Systems, Inc., a Delaware corporation (the “COMPANY”);

WHEREAS, the Stockholders deem it to be in the best interest of the Company and its stockholders to enter into this Agreement and to grant to the Designated Agent a proxy (the “PROXY”) in connection herewith; and

WHEREAS, the Stockholders desire to enter into an agreement to be specifically enforceable against each of them pursuant to which they agree to vote and sell their shares of Owned Stock (as such term is defined in Section 1 hereof) in accordance with this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Stockholders hereby agree as follows:

1. Voting Agreement. Each Participating Stockholder hereby agrees to vote all of the Stock now or hereafter owned of record, beneficially owned, or controlled by such Participating Stockholder (“Owned Stock”), as directed by the Designated Agent, in the Designated Agent’s sole and absolute discretion. This will include each and every matter submitted to the Company’s stockholders for stockholder vote, consent, waiver, release, or other action and the right to take part in any corporate or stockholders’ action, whether ordinary or extraordinary, and on any other matter that the Designated Agent may request. The Participating Stockholders will not have any right under this Agreement or otherwise, with respect to any matter on which they are entitled to vote as stockholders of the Company, to vote or to take part in any corporate or stockholders’ action or to do or perform any act or thing that stockholders of the Company are now or may hereafter become entitled to do or to perform, EXCEPT as may be directed by the Designated Agent. Notwithstanding the foregoing, however, this Agreement will not affect the right of a Participating Stockholder, in such Participating Stockholder’s capacity as a stockholder of the Company, to sell or otherwise transfer their Owned Shares or to receive distributions, assets, dividends, evidences of indebtedness, or otherwise, that may be distributed by the Company to its stockholders from time to time. In such sale or other transfer of Owned Shares shall release such Shares from this Agreement.

2. Proxy. In order to insure the obligations of each of the Participating Stockholders to vote such Participating Stockholder’s Owned Stock in accordance with the provisions of Section 1 hereof, each of the Participating Stockholders will execute and deliver contemporaneously herewith a Proxy, in the form attached as EXHIBIT B hereto, granting to the Designated Agent the right to vote, or to execute and deliver stockholder written consents, in respect of all Owned Stock of such Participating Stockholder; PROVIDED, HOWEVER, that the authority granted to the Designated Agent hereunder will not apply to any vote on any merger, sale or other transaction with an entity in which the Designated Agent has or will have an equity ownership interest that is disproportionately high in relation to the Participating Shareholders.

3. Powers and Duties of Designated Agent.

(a) DISCRETION OF DESIGNATED AGENT. In directing the voting of the Participating Stockholders, or in exercising the Designated Agent’s rights to vote as such Participating Stockholders’ proxy, or in doing any act with respect to the furtherance of this Agreement, or otherwise acting hereunder, the Designated Agent will exercise the Designated Agent’s sole and absolute discretion.

(b) COMPENSATION. The Designated Agent will serve as such without compensation.

(c) IMMUNITIES OF THE DESIGNATED AGENT. The Designated Agent will incur no responsibility or liability to the Participating Stockholders, as Designated Agent, stockholder, Director,

trustee, or otherwise, by reason of any error of judgment or mistake of law or other mistake, or for any misconstruction of this Agreement, or for any action of any sort taken or omitted hereunder or believed by the Designated Agent to be in accordance with the provisions and intent hereof or otherwise, except for the Designated Agent’s own individual willful misconduct.

(d) RELIANCE BY THE DESIGNATED AGENT. In the discharge of the Designated Agent’s duties hereunder, the Designated Agent will be fully protected in acting in reliance upon any instrument, document, or paper believed by the Designated Agent to be genuine and to have been executed by the proper parties. The Designated Agent will likewise be fully protected in taking or refraining from taking any action hereunder in reliance upon any certificate or certificates purporting to be duly signed, as to the existence or non-existence of any fact or facts, or the performance or non-performance of any act or acts, and may accept as conclusive any statement made in any such certificate.

(e) BOND; ADVISORS. The Designated Agent will not be required to give bond or security for the discharge of the Designated Agent’s duties under this Agreement. The Designated Agent may, in the Designated Agent’s sole and absolute discretion, consult with counsel to be selected by the Designated Agent and will incur no liability to the Participating Stockholders in respect of any action taken on the advice of any such counsel.

4. Purpose. It is the express desire of the Stockholders to maximize stockholders^, value of the Company, which may include, without limitation: (a) the sale or merger of the Company; (b) electing Directors to the Company’s Board of Directors; (c) amending the Company’s Certificate of Incorporation or Bylaws; or (d) some combination of any one or more of the forgoing. Notwithstanding the foregoing, none of the Participating Stockholders has acquired securities of the Company with the purpose, or with the effect of, changing or influencing the control of the Company.

5. Changes in Common Stock. In the event that subsequent to the date of this Agreement, any shares or other securities (other than any shares or securities of another corporation issued to the Company’s stockholders pursuant to a plan of merger) are issued on, or in exchange for, any of the shares of the Stock held by the Stockholders by reason of any stock dividend, stock split, consolidation of shares, reclassification, or consolidation involving the Company, or any shares of Stock or other Company securities are acquired or obtained by a Participating Stockholder through an open market transaction, exercise of an option, warrant, lapse of restrictions, or other right to acquire or obtain Stock or other Company securities, or otherwise, such shares or securities shall be deemed to be Owned Stock for purposes of this Agreement and the Proxy.

6. Representations and Warranties of Stockholders; Indemnification. Each Participating Stockholder hereby represents and warrants to each of the other Participating Stockholders and the Designated Agent that as of the date hereof: (a) such Participating Stockholder is the beneficial owner of and has the right to vote the number of shares of Owned Stock set forth opposite such Participating Stockholder’s name on EXHIBIT A attached hereto, such shares of Owned Stock constitute all of the capital stock of the Company owned or controlled by such Participating Stockholder, and such shares of Owned Stock are owned or controlled by such Participating Stockholders free from any liens, encumbrances, or adverse claims, including, without limitation, margin call rights; (b) such Participating Stockholder has full power to enter into this Agreement and has not, prior to the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement, other than one which has expired or terminated prior to the date hereof; (c) to such Participating stockholder’s knowledge, there are no pending or threatened claims, lawsuits, investigations, causes of action, or grievances of the Company, whether derivative or direct, relating to or arising out of, such Participating Stockholder’s relationship with the Company, its stockholders, directors, suppliers, customers or otherwise; (d) such Participating Stockholder has complied in all respects with all applicable Federal, state and foreign securities laws and regulations with respect to the acquisition of such Participating stockholder’s Owned Stock; (e) such Participating Stockholder will not take any action inconsistent with the purposes and provisions of this Agreement; and (f) the Participating Stockholder has reviewed the proposed Schedule 13G to be filed by the Designated Agent and confirms that the information therein, as it relates to such Participating Stockholder, is true and correct in all respects. Each Participating Stockholder hereby agrees to indemnify and hold harmless each other

Participating Stockholder and the Designated Agent from any and all costs, expenses, losses, damages, and liabilities incurred or suffered, by any of them (including, without limitation, legal, accounting, and professional expenses), resulting from, or attributable to, the breach of, or misstatement in, any one or more of the representations, warranties, agreements, and covenants of such Participating Stockholder contained in this Agreement.

7. Covenants and Agreements of Stockholders.

(a) TRANSFERS . This Agreement shall NOT preclude a Participating Stockholder from purchasing additional shares of the Company or from selling or otherwise disposing of any shares of the Company.

(b) MATERIAL CHANGES. Each Participating stockholder covenants and agrees that such Participating Stockholder will promptly notify the Designated Agent in writing of any event or change in circumstance that would render the representations and warranties of such Participating Stockholder false or inaccurate, or misleading in any material respect or of any purchases, acquisitions, sale or other disposition of additional shares of the Company.

(c) NO ADDITIONAL PROXIES. Each Participating Stockholder covenants and agrees that during the term of this Agreement, such Participating Stockholder will not grant any other proxy or voting rights with respect to any Owned Stock.

8. Resignation of Designated Agent. The Designated Agent may at any time resign by delivering to the Participating Stockholders the Designated Agent’s written notice of such resignation, to take effect not sooner than ten (10) days from the date the notice is given.

9. Successor Proxy. Upon the death or the Permanent Disability (as such term is defined below) of the Designated Agent, Xxxx Xxxx Xxxxx will become the successor Designated Agent hereunder, unless Participating Stockholders holding at least seventy percent “70%” of the Owned Stock subject to this Agreement appoint a different successor Designated Agent. Upon such death or Permanent Disability and appointment of a successor Designated Agent, each Participating Stockholder agrees to execute and deliver to Xx. Xxxx Xxxx Xxxxx or such other successor appointed by the Participating Stockholders, as the case may be, an additional Proxy naming Xxxx Xxxx Xxxxx or such other successor appointed by the Participating stockholders, as the case may be, as proxy therein. For purposes of this Agreement, the term “Permanent Disability” means permanent disability as determined by any physician of The Cleveland Clinic of Cleveland, Ohio or its successors and assigns.

10. Term of Agreement. This Agreement shall remain in effect until December 31, 2009 unless sooner terminated by: (a) resignation of the Designated Agent in accordance with Section 8 hereof; (b) the completion of a sale of the Company, whether by merger, tender offer, exchange offer, or a sale of all or substantially all of the Company’s assets; or (c) upon the affirmative vote or consent of Participating Stockholders holding at least a majority of the shares of Owned Stock.

11. Effect of Termination. Upon the termination of this Agreement in accordance with Section 10 hereof, this Agreement will be of no further force and effect and the Designated Agent and each of the Participating Stockholders will timely file an amended Schedule 13G evidencing such termination.

12. Notice. All notices, requests, demands and other communications to be given to any Stockholder under this Agreement must be in writing and will be deemed duly given: (a) when personally delivered; (b) upon receipt of a telephonic facsimile transmission with a confirmed facsimile transmission answer back; (c) three (3) days after having been deposited in the United states mail, certified or registered, return receipt requested, postage prepaid; or (d) one (1) business day after having been dispatched by a nationally recognized overnight courier service, delivery fees prepaid, addressed to such Stockholder at the address set forth on EXHIBIT A hereto (Or at such other address or number as is given in writing by such Stockholder to the Designated Agent).

13. Payment of Expenses and Taxes. All expenses incurred by the Designated Agent, including the compensation of agents, accountants, professionals, and attorneys employed by the Designated Agent, incident to the performance of the Designated Agent’s duties hereunder (including the preparation of this Agreement), will be paid by the Designated Agent, who will be immediately and fully reimbursed by those Stockholders identified on Exhibit A who have agreed to share expenses on a

expenses shared pro rata in proportion to their ownership of Owned Stock subject to this Agreement:

14. Amendment of Agreement. This Agreement may be amended at anytime and from time to time with the written consent of both the Designated Agent and the affirmative vote or consent of Stockholders holding at least seventy percent (70%) of the Owned Stock subject to this Agreement; PROVIDED, that this Agreement may be amended by the Designated Agent without the consent or approval of the Stockholders if such amendment is solely for the purpose of conforming with any rule, regulation, or requirement of the Securities and Exchange Commission or any other Federal, state, foreign or local authority. Except in cases of conforming amendments, the Designated Agent will cause to be sent to the Stockholders a copy of the proposed amendment and a form which may be appropriately marked and returned to the Designated Agent for the purpose of determining whether the Stockholders holding the requisite amount of the owned Stock approve such amendment.

15. Injunctive Relief. It is acknowledged by each Participating Stockholder that it will be impossible to measure the damages that would be suffered by the Designated Agent and the other Participating stockholders if a Participating Stockholder fails to comply with all the provisions of this Agreement and that in the event of any such failure, the Designated Agent and the other Participating Stockholders will be irreparably injured and will not have an adequate remedy at law. Each Participating Stockholder hereby acknowledges and agrees that, in the event any Participating Stockholder fails to comply with any provision of this Agreement, the Designated Agent will be entitled, without the posting of bond, to obtain specific performance of the Participating Stockholders’ obligations hereunder, and to obtain immediate injunctive relief. Each Participating Stockholder agrees not to assert, and hereby waives, as a defense in any proceeding for such specific performance or injunctive relief, that the Designated Agent or the other Participating Stockholders have an adequate remedy at law. The remedies described herein are not be the exclusive remedies for any breach of this Agreement, but shall be in addition to all other remedies available at law or equity,

16. Construction of Agreement. The Designated Agent is authorized and empowered to construe this Agreement. The Designated Agent’s construction of the same made in good faith will be final, conclusive, and binding upon all parties hereto and upon all other interested parties.

17. Miscellaneous.

(a) ENTIRE AGREEMENT. Once executed by all the Stockholders, this Agreement will contain the entire understanding among the parties, There are no representations, agreements, arrangements, or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein.

(b) BINDING Agreement will be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and permitted assigns of the parties hereto.

(c) COUNTERPARTS. This agreement may be executed in one or more counterparts, each of which will be deemed to be an original, and such counterparts will together constitute one and the same instrument. The execution by any one party of any counterpart will be sufficient execution by that party, whether or not the same counterpart has been executed by any other party.

(d) GENDER; NUMBER. Whenever the context of this Agreement requires, the masculine gender includes the neuter or feminine, and the singular number includes the plural.

(e) EFFECTIVENESS OF AGREEMENT. This Agreement will become effective only at such time as it is signed by all the Stockholders.

(f) GOVERNING LAW. The validity of this Agreement, or any part hereof, and the interpretation and enforcement of all provision hereof, will be governed, construed, and enforced in accordance with the internal, substantive laws of the State of Delaware.

(g) INVALIDITY. The invalidity of any term or provisions of this Agreement will not affect the validity of the remainder of this Agreement and this Agreement will be enforced to the greatest extent permitted by law.

(h) HEADINGS. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

(i) ENFORCEABILITY. If any provision of this Agreement shall be declared void or unenforceable by any court or administrative board of competent jurisdiction, such provision shall be deemed to have been severed from the remainder of this Agreement and this Agreement shall continue in all respects to be valid and enforceable.

(j) NO WAIVER. No waivers of any breach of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies of any other party hereto or with respect to any subsequent breach.

(k) SEPARATE LEGAL COUNSEL. Each Participating Stockholder acknowledges and agrees that (1) Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP., has been retained by and solely represents the Designated Agent in connection herewith; and (2) such Participating Stockholder has been advised by independent legal counsel in connection with the negotiation, execution, and delivery of this Agreement.

(l) NO THIRD PARTY BENEFICIARIES. This Agreement is being entered into solely for the benefit of the Stockholders that are parties hereto and except as otherwise provided herein, the parties hereto do not intend to confer any benefits on any person, firm or corporation other than the Stockholders. This Agreement and the rights and benefits conferred hereby may only be enforced by the Stockholders that are parties hereto.

(m) JURISDICTION; JURY TRIAL. Each Stockholder hereby irrevocably submits to the mandatory and exclusive jurisdiction of the United States District Court for the Northern District of Ohio, Eastern Division, or in the absence of Federal Court subject-matter jurisdiction, to the mandatory and exclusive jurisdiction of the Cuyahoga County, Ohio Court of Common Pleas, for adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and further stipulates that either such court is the proper venue for such dispute, and hereby irrevocably waives and agrees not to assert in any suit, action or proceeding, any claim that such Stockholder is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each Stockholder hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof by Certified U.S. Mail to such Stockholder at the street address for such notices set forth on EXHIBIT A hereto, and agrees that such service shall be deemed to irrevocably waive any right such Stockholder may have, and agrees not to request, a jury trial for the adjudication of any dispute hereunder.

IN WITNESS WHEREOF, the Designated Agent and the Participating Stockholders have executed this Agreement as of the date first above written.


DESIGNATED AGENT

/s/ Xxxx X. Xxxxx

Xxxx X. Xxxxx

/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx

/s/ Xxxx Xxxx Xxxxx

Xxxx Xxxx Xxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


XXX XXXXX EDUCATIONAL TRUST
By:	/s/ Xxxx Xxxx Xxxxx
	Name Xxxx Xxxx Xxxxx
	Title:	TRUSTEE

THE EXECUTION OF A COUNTERPART SIGNATURE PAGE SHALL BE FOR ALL PURPOSES TREATED
AS THE EXECUTION OF THE STOCKHOLDER VOTING AGREEMENT AND THE SIGNATORY SHALL
BE BOUND BY THE TERMS AND CONDITIONS THEREOF

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxxxx X. Xxxxxxx
	Xxxxxx X. Xxxxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


Xxxxx & Associates, Co., LPA
By:	/s/ Xxxx X. Xxxxx
	Name Xxxx X. Xxxxx
	Title:	Principal

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxxxxx Xxxx
	Xxxxxxx Xxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxxx Xxxx Xxxxx
	Xxxxx Xxxx Xxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxxxxx Xxxxxxxxxx
	Xxxxxxx Xxxxxxxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxx Xxxxx
	Xxxx Xxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxxxxxx X. Xxxxxxx
	Xxxxxxxx X. Xxxxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxx Xxxxxxxx
	Xxxx Xxxxxxxx

COUNTERPART SIGNATURE PAGE TO STOCKHOLDER VOTING AGREEMENT


	/s/ Xxxxxx X. Xxxxx
	Xxxxxx X. Xxxxx

EXHIBIT A


		Number of Shares Owned as of
Name of Shareholder	Address of Shareholder	December 9, 2008
Xxxxx & Associates Co., LPA	0000 Xxxx 0^xx Xx., Xxxxx 0000		425,000
	Xxxxxxxxx, XX 00000
Xxxx Xxxxx	0000 Xxxxxxxxx Xxxx		0,000,000
	Xxxxxxxxx Xxx., XX 00000
Xxxx Xxxx Xxxxx	0000 Xxxxxxxxx Xxxx		0,000,000
	Xxxxxxxxx Xxx., XX 00000
The Xxx Xxxxx Educational Trust	0000 Xxxxxxxxx Xxxx		0,000,000
	Xxxxxxxxx Xxx., XX 00000
Xxxxxx X. Xxxxxxx	0000 Xxxxxxxx Xxxx		0,000,000
	Xxxxxx Xxx., XX 00000
Xxxxxxx Xxxx	0000 Xxxxxxxxx Xxxx.		000,000
	Xxxxxxxxx Xxx, Xxxx 00000
Xxxxx Xxxx Xxxxx	0000 Xxxxxxxxx Xxxx.		0,000,000
	Xxxxxxxxx Xxx, Xxxx 00000
Xxxxxxx Xxxxxxxxxx	00000 Xxxxxx Xxxx.., Xxx. 000		0,000,000
	Xxxxxx Xxx, XX 00000
Xxxx Xxxxx	00000 Xxxxx Xx., Xxx. 0		000,000
	Xxxxxxxxx Xxx, Xx 00000
Xxxxxxxx X. Xxxxxxx	0000 Xxxxx Xxxxxxxxx Xxxxx		000,000
	Xxxxx, XX 00000
Xxxx Xxxxxxxx	000 00^xx Xx., XX, #0000		6,344,700
	Xxxxxxx, XX 00000
Xxxxxx X. Xxxxx	000 Xxxxx Xxxx		10,461,133
	Xxxxxxxx, XX 00000

EXHIBIT B

PROXY

The undersigned appoints Xxxx X. Xxxxx, as proxy, with the power to appoint his substitute, and authorizes him to represent the undersigned and to vote the undersigned shares of Common Stock, par value $0.001 per share (the “Stock”) of Spongetech Delivery Systems, Inc., a Delaware corporation (the “COMPANY”), on all matters submitted to the stockholders of the Company in such manner as the proxy agent wishes, at the proxy agent’s sole discretion, that may come before the stockholders on or prior to December 31, 2009.

This proxy revokes all proxies previously given by the undersigned to vote on behalf of the undersigned. This proxy may be revoked at any time by delivery of written notice of revocation signed by the undersigned to the proxy agent appointed in this proxy or to the Corporation.

DATE:

[Signature]

If signing on behalf of an entity, list the name of the entity, the name of the signatory and the title of the signatory

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STOCKHOLDERS VOTING AGREEMENT Among Joel L. Levin, as Designated Agent and the Participating Stockholders identified on EXHIBIT A hereto Dated: December 9, 2008

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