VOTING AGREEMENT

 

THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of December 14, 2012, among IRONCLAD PERFORMANCE WEAR CORPORATION ("Ironclad" or the "Company"), KENNETH J. FRANK, RICHARD KRONMAN, MICHAEL A. DIGREGORIO, CHARLES H. GIFFEN, CHARLES W. HUNTER, MARCEL SASSOLA, EDUARD A. JAEGER, RICHARD B. KRONMAN, and SCOTT JARUS (individually and collectively, "Shareholders"), (each individually a "Party", and collectively "Parties"), with reference to the following facts:

 

RECITALS:

 

A.           The Shareholders each are legal and/or beneficial owners of voting stock of the Company in the approximate amounts as set forth on Exhibit A.

 

B.           In order to provide for the stability and continuity of the Board of Directors of the Company (the "Board"), and to provide for representation on the Board as provided for in that certain Settlement Agreement and Mutual General Release also made and entered into December 14, 2012 (the "Settlement Agreement"), the Shareholders each have agreed to vote all of their shares in the Company as provided by this Agreement.

 

C.           The Shareholders have consented to act under this Agreement for the purposes herein provided for the benefit of the Company.

 

AGREEMENT:

 

Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

 

1.           Recitals.  The Recitals set forth above are incorporated herein by their reference.

 

2.           Election of Directors at the Company's Annual Shareholders' Meeting in 2013.  The Shareholders each shall vote to elect as members of the Company's Board at the Company's Annual Shareholder's Meeting in 2013 (the "2013 Annual Shareholders' Meeting") the persons nominated by the Company's Board and identified in the Company's Proxy Statement filed with the United States Securities and Exchange Commission (the "SEC") pursuant to Section 14(a) of the Securities Exchange Act of 1934 (the "Company's 2013 Proxy Statement").  To effectuate this Agreement, the Parties agree as follows:

 

a.           Each Shareholder shall deliver to the Company, within ten (10) business days of the later of: (i) the Company filing the Company's 2013 Proxy Statement with the SEC, or (ii) the Company delivering the Company's 2013 Proxy Statement to such Shareholder in the form provided by the Company, which proxy shall be completed to vote all Company stock legally and/or beneficially owned by such members of the Board;

 

b.           It is further agreed that, in the event that any of the Shareholders fail to deliver a proxy or proxies as provided for in the immediately preceding sub-paragraph, the other Parties hereto, including Ironclad, shall be and are entitled to mandatory injunctive relief requiring the non-performing party to perform pursuant to the immediately preceding sub-paragraph, which mandatory injunctive relief can be obtained from any court of competent jurisdiction;

 

 

c.           It is further agreed that Ironclad shall be and hereby is entitled to disregard, and to not count any vote by any of the Shareholders required to provide a proxy as provided above, whether at or in connection with the 2013 Annual Shareholders' Meeting, if such vote is not for the persons nominated by the Company to serve as members of the Board;

 

d.           Each of the Parties agrees that neither they nor any agent of theirs, nor any person acting at their behest, at their direction or under their control or in concert with them, may or shall take any action whatsoever, including but not limited to soliciting proxies or disseminating so-called fight letters, which  action directly or indirectly challenges or contests the nominees listed in the Company's 2013 Proxy Statement, or which supports candidates other than those nominated by the Company to be elected as members of the Company's Board at the 2013 Annual Shareholders' Meeting; and

 

e.           The Parties further agree that, in the event that any of them act or cause actions of the type or nature described in the immediately preceding sub-paragraph, the other Parties hereto, including Ironclad, shall be and are entitled to injunctive relief limiting and prohibiting such actions, which injunctive relief can be obtained from any court of competent jurisdiction.

 

3.           Transaction That Entails Change to the Composition of the Board.  Notwithstanding anything contained herein, including in particular Section 2, entitled "Election of Directors at the Company's Annual Shareholders' Meeting in 2013", if a transaction approved by the Board and, if necessary, by the Company's Shareholders, such as a merger or acquisition, is consummated and includes as a term or condition of that transaction that the composition of the Board is to change, or the composition of the Board is changed in connection with or pursuant to that transaction, then Section 2 in its entirety thereupon automatically shall be and is terminated and of no force and effect.

 

4.           Rights of the Shareholders.  The Shareholders shall have all of the rights, privileges and benefits as shareholders of the Company, including the right to vote the shares as the Shareholders individually determine, except as specified in this Agreement.  Any and all additional shares acquired by the Shareholders are subject to the terms of this Agreement.

 

5.           Rights of the Shareholders.  This Agreement will become effective on the date hereof and continue in effect through and including the 2013 Annual Shareholders' Meeting.  If the Company fails to hold an Annual Shareholders' Meeting in 2013, this Agreement will terminate on December 31, 2013.  The Parties hereto, by agreement in writing, may extend the duration of this Agreement for any additional period as agreed upon.

 

6.           No Withdrawal/Permitted Transfers.  No shares may be withdrawn from this Agreement except shares sold by the Shareholders in open market transactions with unrelated and unknown third parties.  Otherwise, all shares must and will remain subject to this Agreement, meaning that the Shareholders may transfer shares from time-to-time in private transactions, provided that the transferee is informed of and consents in writing to be bound by this Agreement.

 

 

7.           Assignability.  This Agreement shall be irrevocable throughout the term, and shall be binding upon and inure to the benefit of the Parties, their legal representatives, successors, agents and assigns.  The above notwithstanding, this Agreement shall not be binding on any person who is unrelated and unknown to a Shareholder who buys shares from the Shareholder in an open market transaction.

 

8.           Representation by Counsel.  Each Party acknowledges that he or it has had the opportunity to be represented by and rely on counsel of his or its own choosing, and/or has been represented by and has relied upon counsel of his or its own choosing, in the negotiations for the preparation of this Agreement, that he or it has read this Agreement, has had its contents fully explained to him or it by such counsel and/or has had the opportunity to obtain such an explanation, and is fully aware of and understands all of its terms and the legal consequences thereof.  It is acknowledged that each of the Parties hereto, either directly or through his or its respective counsel, has mutually participated in the preparation of this Agreement, and it is agreed that no provision hereof shall be construed against any Party hereto by virtue of the participation of that Party or his or its attorneys in the drafting of this Agreement;

 

9.           Governing Law, Jurisdiction and Venue.  This Agreement is executed and delivered within the County of Los Angeles, State of California, and the rights and obligations of the Parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California. The Parties hereby agree and consent to the exclusive jurisdiction and venue of the Los Angeles County Superior Court and/or the United States District Court, Central District of California, over all matters relating to this Agreement.

 

10.         Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be considered an original and all of which shall together constitute one and the same instrument.

 

11.         Binding Agreement.  This Agreement shall be binding upon and inure to the benefit of the heirs, permitted assigns, and successors in interest of the Parties hereto.  The above notwithstanding, this Agreement shall not be binding on any person who is unrelated and unknown to a Shareholder who buys shares from the Shareholder in an open market transaction.  Each individual signing this Agreement and each of the Parties hereto represent and warrant to each other Party that the individual signing this Agreement has the authority to execute this Agreement and to bind the Party on whose behalf the individual is executing this Agreement.

 

12.         Confidentiality.  The Parties agree that they, their attorneys and agents will not, at any time, directly or indirectly, except as expressly authorized in writing by the other Parties, publicize, divulge, or disclose to any person, entity, or media representative the terms of this Agreement, except (i) as may be required by law, including the federal securities laws, (ii) a Party may disclose the fact of this Agreement to governmental authorities to whom disclosure is required by law, (iii) to legal and financial advisors and accountants, to the extent necessary to receive professional advice with respect to his/her/its legal and financial situation, only if such persons are made aware of and agree to be bound by this confidentiality agreement, and only with respect to the provisions hereof that are absolutely required to be disclosed in connection with the advice sought, (iv) to any other person or entity in connection with a possible transaction, including in particular but not limited to a transaction of the type or nature referenced in Section 3 hereof, or (v) a court action seeking to enforce one or more provisions of this Agreement in which event the Agreement shall be filed under seal to the extent permitted by the Court.

 

 

13.         Entire Agreement.  This Agreement constitutes the entire agreement and understanding of the Parties in respect of its subject matters and supersedes all prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the Party against whom enforcement of any such amendment, waiver, discharge or termination is sought, or (v) a court action seeking to enforce one or more provisions of this Agreement and/or the Settlement Agreement.

 

14.         Paragraph Headings.  The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions of interpretation of this Agreement. Whenever possible each provision of this Agreement shall be interpreted in such mam1er as to be effective and valid under applicable law, but if any provision of this Agreement shall be or become prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

15.         Severability.  The Parties each covenant and agree that in the event that any provision of this Agreement should be held by a court of competent jurisdiction to be void, voidable, illegal or unenforceable in any respect, the remaining portions thereof and provisions hereof shall nevertheless remain in full force and effect as if such void, voidable or unenforceable provision had never been contained herein.

 

16.         No Waiver.  No breach of this Agreement or of any provision herein can be waived except by an express written waiver executed by the Party waiving such breach, which waiver shall be effective only as to that Party who executed the waiver. Waiver of any one breach shall not be deemed a waiver of any other breach of the same or other provisions of this Agreement.

 

 

	SHAREHOLDERS
December __, 2012	/s/ Kenneth J. Frank
	BY JUDY FRANK, ATTORNEY-IN FACT
December __, 2012	/s/ Michael A. DiGregorio
December __, 2012	/s/ Richard B. Kronman
December __, 2012	/s/ Charles H. Giffen
December __, 2012	/s/ Charles W. Hunter
December __, 2012	/s/ Marcel Sassola
December __, 2012	/s/ Eduard A. Jaeger
December 14, 2012	/s/ Scott Jarus