SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
INTERMETRO COMMUNICATIONS, INC.
-----------------------------------------
(Name of Issuer)
COMMON STOCK
-----------------------------------------
(Title of Class of Securities)
45882L 10 1
-----------------------------------------
(CUSIP Number)
JOSHUA TOUBER
578 WASHINGTON BLVD, SUITE 270
MARINA DEL REY, CA 90292
(323) 993-5995
-------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
OCTOBER 12, 2012
-----------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-l(g), check the following box
/_/.
(Continued on following pages)
1
SCHEDULE 13D
CUSIP NO. 45882L 10 1
1. NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JOSHUA SAMUEL TOUBER
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
(A) [ ]
(B) [XX]
3. SEC USE ONLY
4. SOURCE OF FUNDS - PF
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION - U.S.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7. SOLE VOTING POWER: 6,497,800
8. SHARED VOTING POWER: 0
9. SOLE DISPOSITIVE POWER: 10,450,475
10. SHARED DISPOSITIVE POWER: 0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,450,475 SHARES OF COMMON STOCK
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.28%
14. TYPE OF REPORTING PERSON - IN
2
ITEM 1. SECURITY AND ISSUER.
----------------------------
This Schedule 13D relates to of shares of Common Stock of InterMetro
Communications,, Inc., a Nevada corporation (the "Company"). The Company's
principal business address is 2685 Park Center Drive, Bldg. A, Simi Valley,
California 93065.
ITEM 2. IDENTITY AND BACKGROUND.
--------------------------------
Name: Joshua Samuel Touber
Business address: c/o Touber Media, LLC
578 Washington Blvd., Suite 270
Marina Del Rey, CA 90292
Principal occupation: President, Touber Media, LLC
Media consulting
578 Washington Blvd., Suite 270
Marina Del Rey, CA 90292
Citizenship: U.S.
During the last five years, the Reporting Person has not been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction resulting in a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws, or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
----------------------------------------------------------
The Reporting Person used personal funds to purchase the Company's
securities. The Reporting Person acquired a total of 701,329 shares and 219,236
warrants in connection with a business combination between the Company and its
predecessor. His original purchase price for the securities was $187,955. Holder
paid $4,313.61 to exercise 61,623 warrants to purchase Common Stock. A total of
1,100,000 shares were acquired pursuant to the terms of stock purchase warrants
(the "Loan Warrants") which entitled the Reporting Person to elect to receive
shares (the number determined by the average of the 10-day bid price before the
election) in lieu of exercising the warrants. The Loan Warrants were acquired in
connection with loans from the Reporting Person to the Company in the aggregate
principal amount of $450,000 (the "2008/2009 Convertible Notes"). Pursuant to
the terms of loan modifications 700,000 warrants were acquired and beneficial
rights to 2,298,428 shares and 2,298,428 warrants resulting from the new right
of optional conversion of any outstanding principal, fees and interest at
Holder's discretion. Stock options for the purchase of an aggregate of 184,848
shares were granted to the Reporting Person by the Company's predecessor as
incentive compensation. Subsequently, warrants for 1,230,745 shares expired; the
right to purchase 2,298,428 shares subject to the warrant upon conversion of the
loan expired; an option was granted providing for an additional fully
exercisable 1,000,000 shares; and additional interest in the amount of $207,879
accrued on the outstanding loan, representing 440,089 additional shares. On
October 12, 2012, the terms of the 2008/2009 Convertible Notes were modified,
3
resulting in: (i) a portion of the principal and fees (in the aggregate
$279,019) being converted into 1,860,106 shares of common stock; (ii) the
issuance of warrants to purchase shares of common stock equal to the dollar
value of the converted 2008/2009 Convertible Notes (in the aggregate $279,019);
(iii) new loans (the "New 2008/2009 Convertible Notes") being issued
representing the remaining balance of the 2008/2009 Convertible Notes plus an
additional amount which, in the aggregate represents a new loan amount of
$450,000; and (iv) the issuance of new warrants to purchase in the aggregate
900,000 shares of common stock. See also the information in Item 5, which is
hereby incorporated herein by this reference.
ITEM 4. PURPOSE OF TRANSACTION.
-------------------------------
The Reporting Person acquired the Company's securities for investment
purposes. The Reporting Person serves as a director of the Company and, in such
capacity only, may be involved in matters described in paragraphs (a) through
(j) of Item 4 to Schedule 13D. Except as stated herein, the Reporting Person has
no present intention to engage in any of the matters contemplated by paragraphs
(a) through (j) of Item 4 to Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
---------------------------------------------
As of October 12, 2012, the Reporting Person beneficially owned an
aggregate of 10,450,475 shares of the Company's common stock, including (i)
1,879,019, shares subject to warrants; (ii) 1,934,848 shares subject to options;
and (iii) 913,550 shares subject to subordinated notes convertible into shares
of common stock, representing 12.28% of the Company's outstanding common stock
as of October 12, 2012 as reported in the Company's Current Report on Form 8-K
filed on October 17, 2012. These amounts also include 123,246 shares held by
Laurel Research, Inc., of which the Reporting Person is an 80% shareholder and
sole officer and director, and 3,952,675 shares which are subject to a voting
agreement, and over which reporting person has no voting rights. All options and
warrants, and the conversion rights subject to the subordinated notes, are
exercisable within 60 days.
The filing of the last Amendment to the Schedule 13D reported aggregate
beneficial ownership of 8,486,317 shares of Common Stock, or 11.3%. Since filing
the last Amendment, the following transactions occurred that changed the
Reporting Person's ownership of Company common stock: (i) 1,860,106 shares of
common stock were issued pursuant to the conversion of a portion of the
2008/2009 Convertible Notes; (ii) warrants to purchase in the aggregate of
279,019 shares of common stock at an exercise price of $0.01 per share were
granted in connection with the conversion; (iii) the balance of the 2008/2009
Convertible Notes were retired and modified and new subordinated notes (the "New
2008/2009 Convertible Notes") were issued in the principal amounts of $250,000
and $200,000, respectively, at a conversion price of $0.50 per share, which,
including fees and accrued interest at October 12, 2012 represents $253,764 and
$203,011, respectively; (iv) in connection with the New 2008/2009 Convertible
Notes, warrants to purchase an aggregate of 900,000 shares of common stock (at
the exercise prices of 450,000 at $0.01 per share and 450,000 at $0.25 per
share) were granted and (v) an additional 750,000 shares vested of the option
4
grant provided to the reporting person on March 22, 2012.
In connection with the transactions that occurred on October 12, 2012, the
Reporting Person entered into a Voting Agreement with Charles Rice, thereby
giving Mr. Rice sole voting power over 3,952,675 shares of common stock
beneficially owned by the Reporting Person.
The information set forth in response to Items 7 through 10 of the cover
page of this Schedule 13D is hereby incorporated herein by this reference.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
--------------------------------------------------------------------------------
None
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
-----------------------------------------
Exhibit 1. Voting Agreement dated October 12, 2012, between Joshua Touber
and Charles Rice.
Exhibit 2. Voting Agreement dated October 12, 2012, between Joshua Touber
and Charles Rice.
.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct
Dated: October 24, 2012 /s/ Joshua Samuel Touber
_____________________________________
Joshua Samuel Touber
5
EXHIBIT 1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("AGREEMENT") is made and entered into as of
October 9, 2012 by and among InterMetro Communications, Inc., a Nevada
corporation ("COMPANY"), Mr. Charles Rice in his capacity as a shareholder of
the Company ("RICE"), and Joshua Touber ("LENDER").
WHEREAS, the Company and the Lender have entered into that certain
First Amendment to Amended and Restated Loan and Security Agreement of even date
herewith (the "First Amendment").
WHEREAS, the First Amendment provides, among other things, that the
Lender shall in certain circumstances (i) elect to convert certain amounts owed
by the Company to the Lender into common stock of the Company, (ii) receive,
depending upon the election of the Lender as set forth in Section 1 of the First
Amendment, an Early Conversion Warrant, a 2012 Extension Warrant and/or a
Deferred Payments Warrant (collectively, the "WARRANTS") each providing for the
issuance of common stock of the Company upon exercise, and (iii) receive,
depending upon the election of Lender, a Second Amended and Restated Note (Plan
B) that is convertible upon the holder's election into common stock of the
Company (any such shares of Company common stock issuable either pursuant to the
terms of the First Amendment, the Warrants, and/or the Second Amended and
Restated Note (Plan B), and any replacement or other voting securities issuable
as specified therein are together referred to herein as the "SUBJECT SHARES");
WHEREAS, Lender and Rice desire to enter into this Agreement
regarding the voting of the Subject Shares upon the issuance of any such
securities in accordance with the terms of the First Amendment, the Warrants,
and/or the Second Amended and Restated Note (Plan B);
WHEREAS, as a condition to its willingness to enter into the First
Amendment and to issue the Warrants and the Second Amended and Restated Note
(Plan B) in accordance with the terms of the First Amendment and the documents
executed contemporaneously therewith, the Company has required that Lender
execute and deliver this Agreement; and
WHEREAS, the Company and Rice desire Lender to enter into this
Agreement to promote stability between the Company and its shareholders, and
Lender agrees that such purpose is in the best interests of the Company and its
shareholders;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. AGREEMENT TO VOTE SHARES.
(a) Subject to the terms hereof, Lender agrees that upon issuance of
any Subject Shares to it, during the term of this Agreement, at any and all
meetings of shareholders of the Company, or at any adjournment thereof or in any
other circumstances upon which a vote (including consents pursuant to applicable
Voting Agreement
Page 1 of 6
law), agreement or other approval of shareholders is sought, Lender shall vote
(or cause to be voted) all of the Subject Shares owned by Lender and shall
otherwise consent and agree in such manner as may be directed by Rice, in his
sole and absolute discretion, including without limitation to elect individuals
to the Company's Board of Directors (whether at any annual election of the Board
of Directors, in connection with filling any vacancy as a result of any
termination, removal or resignation of any member of the board of Directors or
otherwise).
(b) In furtherance of the covenants set forth in Section 1(a)
hereof, Lender agrees, upon executing this Agreement, to deliver to the Company
and Rice a proxy authorizing the Subject Shares to be voted in accordance with
Section 1(a) of this Agreement in the form attached as EXHIBIT A hereto. Lender
agrees that no further proxy is required to be executed in connection with
Rice's representing the Subject Shares and voting of any matter with respect
thereto. To the extent requested by Rice and/or the Company, Lender from time to
time will provide such further proxies requested by Rice and/or the Company as
may be necessary to effectuate the intent of Section 1(a), including but not
limited to any proxies with respect to securities that constitute Subject Shares
other than the common stock of the Company.
(c) The parties hereto authorize and direct the Secretary of the
Company to mark any certificates representing Subject Shares with a legend
referencing the restrictions contained herein, such legend to remain until this
Agreement terminates or the Subject Shares are sold in a Bona Fide Sale as
described in Section 2 below. In such event, the Company shall, upon Lender's
submission of the certificate or certificates representing the Subject Shares no
longer subject to this Agreement, promptly issue and deliver to the Lender, or
cause its transfer agent to issue and deliver, a new certificate or certificates
representing such Subject Shares without the legend described in this Section
1(c).
2. TERM AND SCOPE OF AGREEMENT. This Agreement shall remain in full
force and effect so long as, and to the extent that such Subject Shares are held
by Lender or an affiliate of Lender or a transferee of Lender (except as set
forth below). This Agreement is irrevocable by Lender. At such time as the
Warrant, the Second Amended and Restated Note (Plan B), or any Subject Shares
are sold by Lender into the public market or to any person or entity that is not
an "affiliate" of Lender (within the meaning of Rule 405 promulgated under the
Securities Act of 1933, as amended, and including without limitation any family
member(s) of affiliates of Lender) (a "BONA FIDE SALE"), and Lender provides a
certification, that is reasonably satisfactory to the Company, confirming that
such sale is a Bona Fide Sale in accordance with the terms of this Agreement,
then such sold security shall not be subject to the terms of this Agreement. If
Lender transfers any Warrant or the Second Amended and Restated Note (Plan B) in
whole or in part to any person or entity in accordance with the terms of such
documents in a transaction that does not constitute a Bona Fide Sale, any
Subject Shares issued to such transferee upon its exercise of the Warrant or the
Second Amended and Restated Note (Plan B), as the case may be, shall remain
subject to all the terms and conditions of this Agreement.
3. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it will be
impossible to measure in money the damages to the other parties if a party
hereto fails to comply with any of the obligations imposed by this Agreement,
Voting Agreement
Page 2 of 6
that every such obligation is material and that, in the event of any such
failure, the other parties will not have an adequate remedy at law or in
damages. Accordingly, each party hereto agrees that injunctive relief or any
other equitable remedy, in addition to remedies at law or in damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law or in
damages. Each party hereto agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the parties hereto and their respective
successors, assigns, heirs and devises, as applicable. This Agreement shall not
be assignable without the written consent of all the parties hereto, except that
the Company may assign, in its sole discretion, all or any of its rights,
interests and obligations hereunder to any of its affiliates or
successors-in-interest, and Rice's rights and obligations under this Agreement
may be assigned upon his death to his executor, administrator, and/or
successors.
5. ENTIRE AGREEMENT. The parties agree that the Recitals are true and
correct and are incorporated as a part of this Agreement. This Agreement,
together with the other agreements referenced herein, contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all other negotiations, representations, warranties, agreements and
understandings, oral or otherwise, between the parties with respect to the
matters contained herein.
6. ATTORNEYS' FEES. The parties hereto agree that the prevailing party
in any action brought to enforce any of the terms and provisions of this
Agreement shall be entitled to its reasonable attorneys' fees and costs incurred
in connection with the action.
7. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Nevada applicable to
contracts executed and fully performed within the State of Nevada, without
regard to the conflicts of laws provisions thereof.
8. JURISDICTION; WAIVER OF VENUE. Each of the parties hereto
irrevocably and unconditionally (i) agrees that any legal suit, action or
proceeding brought by any party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby may be brought in any court of
competent jurisdiction in the County of Los Angeles, State of California (a
"DESIGNATED COURT"), (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any such proceeding brought in any Designated Court, and any claim that any such
action or proceeding brought in any Designated Court has been brought in an
inconvenient forum, and (iii) submits to the non-exclusive jurisdiction of any
Designated Court in any suit, action or proceeding. Each of the parties agrees
that a judgment in any suit, action or proceeding brought in a Designated Court
shall be conclusive and binding upon it and may be enforced in any other courts
to whose jurisdiction it is or may be subject, by suit upon such judgment.
Voting Agreement
Page 3 of 6
9. NOTICES. All notices, requests and demands to or upon the respective
hereto shall be given in writing, which shall include fax transmission and email
with confirmed electronic receipt during normal business hours, and shall be
deemed to have been duly given or made upon receipt by the receiving party. Such
notices, requests and demands shall be given or made at the following addresses
(or such other addresses as either party may designate by notice in accordance
with the provisions of this paragraph):
If to Rice or the Company:
InterMetro Communications
2685 Park Center Drive
Building A
Simi Valley, CA 93065
ATTN: Charles Rice
Email: charles.rice@intermetro.net
Fax: (805) 581-1006
With a copy to:
Graham & Dunn PC
2801 Alaskan Way
Seattle, WA 98121-1128
ATTN: Maren K. Gaylor
Email: MGaylor@grahamdunn.com
Fax: (206) 340-9599
If to Lender:
Joshua Touber
578 Washington, #270
Marina Del Rey, CA 90292
Email: josh@toubermedia.com
Fax: ____________________________
With a copy to:
_________________________________
_________________________________
_________________________________
Fax: ____________________________
10. SEVERABILITY. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of the balance of this Agreement or of
any other term hereof, which shall remain in full force and effect. If any of
Voting Agreement
Page 4 of 6
the provisions hereof are determined to be invalid or unenforceable, the parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible.
11. WAIVER. Any agreement on the part of a party hereto to any waiver
shall be valid only if set forth in a written instrument signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
12. MODIFICATION. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument that is signed by
all of the parties hereto and that specifically refers to this Agreement.
13. COUNTERPARTS. This Agreement may be executed in counterparts and/or
by facsimile or electronic signature, all of which shall be considered one and
the same agreement and shall become effective when such counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
14. HEADINGS. All Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[Signature Page Follows]
Voting Agreement
Page 5 of 6
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the
date set forth in the first paragraph hereof.
InterMetro Communications, Inc., a Nevada corporation
("COMPANY")
By: /s/ David Olert
------------------------------------------------------
Name: David Olert
Title: CFO
CHARLES RICE
/s/ Charles Rice
------------------------------------------------------
Charles Rice
JOSHUA TOUBER
/s/ Joshua Touber
------------------------------------------------------
Joshua Touber
Voting Agreement
Page 6 of 6
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned is a party to the Voting Agreement, dated as of October
9, 2012 (the "VOTING Agreement"), by and among InterMetro Communications, Inc.,
a Nevada corporation ("COMPANY"), Mr. Charles Rice in his capacity as a
shareholder of the Company ("RICE"), and the undersigned.
The undersigned hereby revokes any previous proxies previously granted
with respect to any Subject Shares (as defined in the Voting Agreement) and
appoints Rice, with full power of substitution and re-substitution, as
attorney-in-fact and proxy of the undersigned to attend any and all meetings of
shareholders (and any adjournments or postponements thereof) of the Company,
solely to vote all Subject Shares (as defined in the Voting Agreement) in Rice's
sole discretion.
This proxy has been granted pursuant to Section 1 of the Voting
Agreement. This proxy shall be deemed to be a proxy coupled with an interest and
is irrevocable during the term of the Voting Agreement to the fullest extent
permitted under applicable law, except that such proxy shall terminate upon the
termination of the Voting Agreement.
The undersigned authorizes such attorney and proxy to substitute any
other person to act hereunder, to revoke any substitution and to file this proxy
and any substitution or revocation with the Secretary of the Company.
Dated: October 9, 2012
JOSHUA TOUBER
/s/ Joshua Touber
---------------------------------
Joshua Touber
Voting Agreement
Exhibit A
EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT ("AGREEMENT") is made and entered into as of
October 9, 2012 by and among InterMetro Communications, Inc., a Nevada
corporation ("COMPANY"), Mr. Charles Rice in his capacity as a shareholder of
the Company ("RICE"), and Joshua Touber ("LENDER").
WHEREAS, the Company and the Lender have entered into that certain
First Amendment to Amended and Restated Short-Term Loan and Security Agreement
of even date herewith (the "First Amendment").
WHEREAS, the First Amendment provides, among other things, that the
Lender shall in certain circumstances (i) elect to convert certain amounts owed
by the Company to the Lender into common stock of the Company, (ii) receive,
depending upon the election of the Lender as set forth in Section 1 of the First
Amendment, an Early Conversion Warrant, a 2012 Extension Warrant and/or a
Deferred Payments Warrant (collectively, the "WARRANTS") each providing for the
issuance of common stock of the Company upon exercise, and (iii) receive,
depending upon the election of Lender, a Second Amended and Restated Note (Plan
B) that is convertible upon the holder's election into common stock of the
Company (any such shares of Company common stock issuable either pursuant to the
terms of the First Amendment, the Warrants, and/or the Second Amended and
Restated Note (Plan B), and any replacement or other voting securities issuable
as specified therein are together referred to herein as the "SUBJECT SHARES");
WHEREAS, Lender and Rice desire to enter into this Agreement
regarding the voting of the Subject Shares upon the issuance of any such
securities in accordance with the terms of the First Amendment, the Warrants,
and/or the Second Amended and Restated Note (Plan B);
WHEREAS, as a condition to its willingness to enter into the First
Amendment and to issue the Warrants and the Second Amended and Restated Note
(Plan B) in accordance with the terms of the First Amendment and the documents
executed contemporaneously therewith, the Company has required that Lender
execute and deliver this Agreement; and
WHEREAS, the Company and Rice desire Lender to enter into this
Agreement to promote stability between the Company and its shareholders, and
Lender agrees that such purpose is in the best interests of the Company and its
shareholders;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. AGREEMENT TO VOTE SHARES.
(a) Subject to the terms hereof, Lender agrees that upon issuance of
any Subject Shares to it, during the term of this Agreement, at any and all
meetings of shareholders of the Company, or at any adjournment thereof or in any
other circumstances upon which a vote (including consents pursuant to applicable
law), agreement or other approval of shareholders is sought, Lender shall vote
Voting Agreement
Page 1 of 6
2009 Bridge
(or cause to be voted) all of the Subject Shares owned by Lender and shall
otherwise consent and agree in such manner as may be directed by Rice, in his
sole and absolute discretion, including without limitation to elect individuals
to the Company's Board of Directors (whether at any annual election of the Board
of Directors, in connection with filling any vacancy as a result of any
termination, removal or resignation of any member of the board of Directors or
otherwise).
(b) In furtherance of the covenants set forth in Section 1(a)
hereof, Lender agrees, upon executing this Agreement, to deliver to the Company
and Rice a proxy authorizing the Subject Shares to be voted in accordance with
Section 1(a) of this Agreement in the form attached as EXHIBIT A hereto. Lender
agrees that no further proxy is required to be executed in connection with
Rice's representing the Subject Shares and voting of any matter with respect
thereto. To the extent requested by Rice and/or the Company, Lender from time to
time will provide such further proxies requested by Rice and/or the Company as
may be necessary to effectuate the intent of Section 1(a), including but not
limited to any proxies with respect to securities that constitute Subject Shares
other than the common stock of the Company.
(c) The parties hereto authorize and direct the Secretary of the
Company to mark any certificates representing Subject Shares with a legend
referencing the restrictions contained herein, such legend to remain until this
Agreement terminates or the Subject Shares are sold in a Bona Fide Sale as
described in Section 2 below. In such event, the Company shall, upon Lender's
submission of the certificate or certificates representing the Subject Shares no
longer subject to this Agreement, promptly issue and deliver to the Lender, or
cause its transfer agent to issue and deliver, a new certificate or certificates
representing such Subject Shares without the legend described in this Section
1(c).
2. TERM AND SCOPE OF AGREEMENT. This Agreement shall remain in full
force and effect so long as, and to the extent that such Subject Shares are held
by Lender or an affiliate of Lender or a transferee of Lender (except as set
forth below). This Agreement is irrevocable by Lender. At such time as the
Warrant, the Second Amended and Restated Note (Plan B), or any Subject Shares
are sold by Lender into the public market or to any person or entity that is not
an "affiliate" of Lender (within the meaning of Rule 405 promulgated under the
Securities Act of 1933, as amended, and including without limitation any family
member(s) of affiliates of Lender) (a "BONA FIDE SALE"), and Lender provides a
certification, that is reasonably satisfactory to the Company, confirming that
such sale is a Bona Fide Sale in accordance with the terms of this Agreement,
then such sold security shall not be subject to the terms of this Agreement. If
Lender transfers any Warrant or the Second Amended and Restated Note (Plan B) in
whole or in part to any person or entity in accordance with the terms of such
documents in a transaction that does not constitute a Bona Fide Sale, any
Subject Shares issued to such transferee upon its exercise of the Warrant or the
Second Amended and Restated Note (Plan B), as the case may be, shall remain
subject to all the terms and conditions of this Agreement.
3. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it will be
impossible to measure in money the damages to the other parties if a party
hereto fails to comply with any of the obligations imposed by this Agreement,
Voting Agreement
Page 2 of 6
2009 Bridge
that every such obligation is material and that, in the event of any such
failure, the other parties will not have an adequate remedy at law or in
damages. Accordingly, each party hereto agrees that injunctive relief or any
other equitable remedy, in addition to remedies at law or in damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law or in
damages. Each party hereto agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the parties hereto and their respective
successors, assigns, heirs and devises, as applicable. This Agreement shall not
be assignable without the written consent of all the parties hereto, except that
the Company may assign, in its sole discretion, all or any of its rights,
interests and obligations hereunder to any of its affiliates or
successors-in-interest, and Rice's rights and obligations under this Agreement
may be assigned upon his death to his executor, administrator, and/or
successors.
5. ENTIRE AGREEMENT. The parties agree that the Recitals are true and
correct and are incorporated as a part of this Agreement. This Agreement,
together with the other agreements referenced herein, contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all other negotiations, representations, warranties, agreements and
understandings, oral or otherwise, between the parties with respect to the
matters contained herein.
6. ATTORNEYS' FEES. The parties hereto agree that the prevailing party
in any action brought to enforce any of the terms and provisions of this
Agreement shall be entitled to its reasonable attorneys' fees and costs incurred
in connection with the action.
7. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Nevada applicable to
contracts executed and fully performed within the State of Nevada, without
regard to the conflicts of laws provisions thereof.
8. JURISDICTION; WAIVER OF VENUE. Each of the parties hereto
irrevocably and unconditionally (i) agrees that any legal suit, action or
proceeding brought by any party hereto arising out of or based upon this
Agreement or the transactions contemplated hereby may be brought in any court of
competent jurisdiction in the County of Los Angeles, State of California (a
"DESIGNATED Court"), (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any such proceeding brought in any Designated Court, and any claim that any such
action or proceeding brought in any Designated Court has been brought in an
inconvenient forum, and (iii) submits to the non-exclusive jurisdiction of any
Designated Court in any suit, action or proceeding. Each of the parties agrees
that a judgment in any suit, action or proceeding brought in a Designated Court
shall be conclusive and binding upon it and may be enforced in any other courts
to whose jurisdiction it is or may be subject, by suit upon such judgment.
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9. NOTICES. All notices, requests and demands to or upon the respective
hereto shall be given in writing, which shall include fax transmission and email
with confirmed electronic receipt during normal business hours, and shall be
deemed to have been duly given or made upon receipt by the receiving party. Such
notices, requests and demands shall be given or made at the following addresses
(or such other addresses as either party may designate by notice in accordance
with the provisions of this paragraph):
If to Rice or the Company:
InterMetro Communications
2685 Park Center Drive
Building A
Simi Valley, CA 93065
ATTN: Charles Rice
Email: charles.rice@intermetro.net
Fax: (805) 582-1006
With a copy to:
Graham & Dunn PC
2801 Alaskan Way
Seattle, WA 98121-1128
ATTN: Maren K. Gaylor
Email: MGaylor@grahamdunn.com
Fax: (206) 340-9599
If to Lender:
Joshua Touber
578 Washington Blvd., #270
Marina Del Rey, CA 90292
Email: josh@toubermedia.com
Fax: ____________________________
With a copy to:
_________________________________
_________________________________
_________________________________
Fax: ____________________________
10. SEVERABILITY. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of the balance of this Agreement or of
any other term hereof, which shall remain in full force and effect. If any of
the provisions hereof are determined to be invalid or unenforceable, the parties
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shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible.
11. WAIVER. Any agreement on the part of a party hereto to any waiver
shall be valid only if set forth in a written instrument signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
12. MODIFICATION. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument that is signed by
all of the parties hereto and that specifically refers to this Agreement.
13. COUNTERPARTS. This Agreement may be executed in counterparts and/or
by facsimile or electronic signature, all of which shall be considered one and
the same agreement and shall become effective when such counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
14. HEADINGS. All Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the
date set forth in the first paragraph hereof.
InterMetro Communications, Inc., a Nevada corporation
("COMPANY")
By: /s/ David Olert
------------------------------------------------------
Name: David Olert
Title: CFO
CHARLES RICE
/s/ Charles Rice
------------------------------------------------------
Charles Rice
JOSHUA TOUBER
/s/ Joshua Touber
------------------------------------------------------
Joshua Touber
Voting Agreement
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned is a party to the Voting Agreement, dated as of October
9, 2012 (the "VOTING AGREEMENT"), by and among InterMetro Communications, Inc.,
a Nevada corporation ("COMPANY"), Mr. Charles Rice in his capacity as a
shareholder of the Company ("RICE"), and the undersigned.
The undersigned hereby revokes any previous proxies previously granted
with respect to any Subject Shares (as defined in the Voting Agreement) and
appoints Rice, with full power of substitution and re-substitution, as
attorney-in-fact and proxy of the undersigned to attend any and all meetings of
shareholders (and any adjournments or postponements thereof) of the Company,
solely to vote all Subject Shares (as defined in the Voting Agreement) in Rice's
sole discretion.
This proxy has been granted pursuant to Section 1 of the Voting
Agreement. This proxy shall be deemed to be a proxy coupled with an interest and
is irrevocable during the term of the Voting Agreement to the fullest extent
permitted under applicable law, except that such proxy shall terminate upon the
termination of the Voting Agreement.
The undersigned authorizes such attorney and proxy to substitute any
other person to act hereunder, to revoke any substitution and to file this proxy
and any substitution or revocation with the Secretary of the Company.
Dated: October 9, 2012
JOSHUA TOUBER
/s/ Joshua Touber
---------------------------------
Joshua Touber
Voting Agreement
Exhibit A
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