Exhibit 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 3rd day of
April, 2006 (the "Effective Date"), by and between Xxxxxx X. Xxxxxxxx
("Xxxxxxxx") and Xxxxx Xxxxxxx ("Xxxxxxx") (hereinafter collectively
referred to as the "Parties," or each individually as a "Party").
RECITALS
WHEREAS, Xxxxxxxx currently has the power to vote greater than 90% of
the required shareholder vote of Liberty Diversified Holdings, Inc.
("Liberty"); and
WHEREAS, in connection with the sale of MCR Packaging and Printing
Corp. to Liberty, Xxxxxxx has executed Amendment No. 2 to the Stock
Purchase Agreement dated April 3, 2006 (the "Amendment") thereby extending
the time frame for which Liberty may deliver shares of Series D Convertible
Preferred Stock to Xxxxxxx and curing Liberty's breach of the original
Stock Purchase Agreement dated December 31, 2005; and
WHEREAS, the Parties hereto desire to enter into an agreement
regarding the voting of shares; and
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the adequacy of which are hereby acknowledged, the
Parties hereto agree as follows:
1. AGREEMENT TO VOTE. In consideration of Xxxxx Xxxxxxx
consummating the Amendment and for as long as Xxxxxxxx has the power to
vote at least 50% of the shares of Liberty, the Parties hereby agree as
follows: in order to act in the best interests of Liberty, its subsidiary
MCR Packaging and Printing Corp., and its other subsidiaries, the Parties
hereby agree to vote together, in unison, with regards to all shares which
they have the power to vote, whether through direct ownership or by proxy
with regards to all matters which may require a shareholder vote of
Liberty. Should the Parties disagree as to their vote, both Parties shall
be required to abstain from voting any of the shares which they have the
power to vote.
2. GRANT OF PROXY. Should the provisions of this Agreement be
construed to constitute the granting of proxies, such proxies shall be
deemed coupled with an interest and are irrevocable for the term of this
Agreement to the extent permitted by applicable law.
3. SUCCESSORS IN INTEREST. The provisions of this Agreement shall
be binding upon the successors in interest of the Parties as to any of the
voting rights.
4. NO CONFLICTING AGREEMENT. The Parties shall not grant any proxy
or enter into or agree to be bound by any voting trust or agreement with
respect to their Liberty shares nor shall they enter into any agreements or
arrangements of any kind with any person with respect to the shares
inconsistent with the provisions of this Agreement (whether or not such
agreements and arrangements are with other stockholders of Liberty that are
not Parties to this Agreement).
5. INJUNCTIVE RELIEF. It is acknowledged that it will be impossible
to measure in money the damages that would be suffered if the Parties fail
to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy at law. Any such person
shall, therefore, be entitled to injunctive relief, including specific
performance, to enforce such obligations, and if any action shall be
brought in equity to enforce any of the provisions of this Agreement, none
of the Parties hereto shall raise the defense that there is an adequate
remedy at law.
6. REPRESENTATIONS OF THE PARTIES. The Parties represent and
warrant to each other that they have full power to enter into this
Agreement and have not, prior to the date of this Agreement, executed or
delivered any proxy or similar arrangement other than the one which has
expired or terminated prior to the date hereof and they will not take any
action inconsistent with the purposes and provisions of this Agreement.
7. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with
the express written consent of both Parties.
8. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held
to be prohibited by or invalid under applicable law, such provision shall
be effective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
9. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of California as applied to contracts among California
residents entered into and to be performed entirely within California,
without reference to conflicts of laws principles.
10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
in this Agreement, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors and assigns of the Parties hereto.
12. BINDING EFFECT. In addition to any restriction or transfer that
may be imposed by any other agreement by which any Party hereto may be
bound, this Agreement shall be binding upon the Parties, their respective
heirs, successors and assigns.
13. ENTIRE AGREEMENT. This Agreement is intended to be the sole
agreement of the Parties as it relates to this subject matter and does
hereby supersede all other agreements of the Parties relating to the
subject matter hereof.
14. ATTORNEY'S FEES. In the event any Party hereto shall
commence legal proceedings against the other to enforce the terms hereof,
or to declare rights hereunder, as the result of a breach of any covenant
or condition of this Agreement, the prevailing Party in any such proceeding
shall be entitled to recover from the losing Party its costs of suit,
including reasonable attorneys' fees, as may be fixed by the court.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the day and year hereinabove first written.
By: /S/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
By: /S/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
