EXHIBIT 99.1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("AGREEMENT") is made and entered into as of June 26, 2014
by and among InterMetro Communications, Inc., a Nevada corporation ("COMPANY"),
Mr. Charles Rice in his capacity as a shareholder of the Company ("RICE"), and
Douglas L. Benson ("SUBSCRIBER").
WHEREAS, the Subscriber is purchasing shares of Series B preferred
stock ("Series B Preferred") of the Company in accordance with subscription
documents even date herewith (the "SUBSCRIPTION").
WHEREAS, the Certificate of Designation that governs the Series B
Preferred provides, among other things, that the Subscriber's shares of Series B
Preferred may in certain circumstances be converted into shares of Common Stock
and, in addition, certain warrants received in connection with the Subscription
are convertible into shares of Common Stock (together, such shares of Common
Stock are the "SUBJECT SHARES");
WHEREAS, Subscriber 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 Certificate of Designation and
the Subscription; and
WHEREAS, the Company and Rice desire Subscriber to enter into this
Agreement to promote stability between the Company and its shareholders, and
Subscriber 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, Subscriber 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,
Subscriber shall vote (or cause to be voted) all of the Subject Shares owned by
Subscriber 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).
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(b) In furtherance of the covenants set forth in Section 1(a)
hereof, Subscriber 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. Subscriber 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,
Subscriber 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
Subscriber's submission of the certificate or certificates representing the
Subject Shares no longer subject to this Agreement, promptly issue and deliver
to the Subscriber, 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 Subscriber or an affiliate of Subscriber or a transferee of Subscriber
(except as set forth below). This Agreement is irrevocable by Subscriber. At
such time as any Subject Shares are sold by Subscriber into the public market or
to any person or entity that is not an "affiliate" of Subscriber (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
Subscriber) (a "BONA FIDE SALE"), and Subscriber 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.
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,
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.
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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.
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):
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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:
Riddell Williams P.S.
1001 Fourth Avenue, Suite 4500
Seattle, WA 98154-1192
ATTN: Daniel Friedberg
Email: dfriedberg@Riddellwilliams.com
Fax: 206.389.1708
If to Subscriber:
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ATTN: --------------------------------
Email: --------------------------------
Fax: ----------------------------------
With a copy to:
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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
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
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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.
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/ Charles Rice
-----------------------------------------
Name: Charles Rice
Title: CEO
CHARLES RICE
/s/ Charles Rice
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Charles Rice
[SUBSCRIBER]
By:/s/ Douglas L. Benson
-----------------------------------------
Name: Douglas L. Benson
Title:
Voting Agreement
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned is a party to the Voting Agreement, dated as of June
26, 2014 (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: June 26, 2014
SUBSCRIBER'S NAME
By: /s/ Douglas L. Benson
---------------------------------
Name: Douglas Benson
Title:
Voting Agreement
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