VOTING AGREEMENT
EXHIBIT
1
THIS
VOTING AGREEMENT (the “Agreement”) is entered into as of the 31st day of
December, 2008 in Simi Valley, California by and between Xxxxxxx Xxxx (the
“Rice”), and Xxxxxx Xxxxxx (the “Shareholder”).
RECITALS
WHEREAS, Shareholder is the
owner of shares of the common stock of InterMetro Communications, Inc. (the
“Company”) and warrants to purchase shares of the Company’s common stock (the
“Warrants”).
WHEREAS, the Shareholder and
Rice desire to enter into an agreement which provides for the voting of the
shares of the Company’s common stock (the “Common Stock”) owned by Shareholder
as of the date first above written and the shares of Common Stock into which the
Warrants are convertible or exercisable and those shares of the Company’s Common
Stock and Warrants which will be exchanged automatically and without further
action on the part of the Shareholder at such time as the Company has increased
its authorized shares (collectively, the “Securities”), until such time as, with
respect to each share of Common Stock or share of Common Stock underlying the
Warrants, as the case may be, the Shareholder sells such share of Common Stock
or such share of Common Stock underlying the Warrants into the public
market.
WHEREAS, the Shareholder and
Rice desire to facilitate the voting arrangement set forth in this
Agreement.
NOW, THEREFORE, for good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. VOTING OF
SHARES.
At any
annual or special shareholders meeting, and whenever the shareholders of the
Company act by written consent with respect to any matter, Shareholder hereby
authorizes Rice to vote the Securities on Shareholder’s behalf for a period
until the earlier of (i) the date the Company’s Articles of Incorporation have
been recorded and thereby amended and restated to increase the Company’s
authorized shares of common stock or (ii) ninety (90) days from the date of this
Agreement (the “Initial Period”).
After the
expiration of the Initial Period, at any annual or special shareholders meeting,
and whenever the shareholders of the Company act by written consent with respect
to the appointment of directors, Shareholder hereby authorizes Rice to vote all
of the Securities on Shareholder’s behalf for a period of two (2) years from the
date of this Agreement; provided, however, in the event Shareholder sells into
the public market or otherwise disposes, transfers or sells in a private
transaction to an unrelated party or non affiliate any of the shares of Common
Stock or shares of Common Stock into which the Warrants are convertible or
exercisable, then with respect only to the shares of Common Stock or shares of
Common Stock into which the Warrants are convertible or exercisable, as the case
may be, which the Shareholder sells, Rice will no longer be authorized to vote
such shares.
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Subject
to applicable Securities law, nothing in this Agreement shall prohibit
Shareholder from selling into the public market or otherwise disposing,
transferring or selling in a private transaction to an unrelated party or non
affiliate any of the shares of Common Stock or shares of Common Stock into which
the Warrants are convertible or exercisable.
2. SUBSTITUTION OF
SHARES.
In the
event the Company enters into a merger transaction, reincorporation transaction,
reverse merger transaction with a publicly traded shell company, or similar
business combination, any securities issued to the Shareholder in exchange for
the Securities in said transaction will be subject to this
Agreement.
3. TERMINATION OF
AGREEMENT.
This
Agreement shall terminate on the date two (2) years from the date first above
written.
4. SPECIFIC
PERFORMANCE.
The
parties hereto hereby declare that it is impossible to measure in money the
damages which will accrue to a party hereto or to their heirs, personal
representatives, or assigns by reason of a failure to perform any of the
obligations under this Agreement and agree that the terms of this Agreement will
be specifically enforceable. If any party hereto or his heirs,
personal representatives, or assigns institutes any action or proceeding to
specifically enforce the provisions hereof, any person against whom such action
or proceeding is brought hereby waives the claim or defense therein that such
party or such personal representative has an adequate remedy at law, and such
person will not offer in any such action or proceeding the claim or defense that
such remedy at law exists.
5. NOTICE.
All
notices required or permitted hereunder will be in writing and will be deemed
effectively given: (a) upon personal delivery to the party to be notified, (b)
when sent by confirmed telex or facsimile if sent during normal business hours
of the recipient; if not, then on the next business day, (c) five (5) days after
having been sent by certified mail, return receipt requested, postage prepaid,
or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of
receipt. All communications must be sent to the party to be notified
at the address as indicated below the party’s signature to this
Agreement.
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6. BENEFIT.
This
Agreement shall be binding upon and operate for the benefit of the Shareholder
and Rice and their respective executors, administrators, successors and
assigns.
7. AMENDMENT OR
WAIVER.
No waiver
or amendment of this Agreement shall be valid unless in writing and duly
executed by the party to this Agreement against whom the amendment or waiver is
sought to be enforced. No evidence of any waiver or modification
shall be received into evidence in any proceedings, arbitration or litigation
between the parties relating to this Agreement, or the rights or obligations of
the parties hereunder, unless the waiver or modification is in writing, duly
executed. The parties further agree that the provisions of this
Paragraph may not be waived except as herein set forth.
8. ENTIRE
AGREEMENT.
This
Agreement and the agreements referred to herein constitute the entire agreement
of the parties hereto and supersede any and all other agreements, written and
oral, previously made.
9. GOVERNING LAW AND
VENUE.
This
Agreement shall be construed, interpreted and governed for all purposes by the
laws of the State of California. Venue for all legal proceedings
initiated under this Agreement will be in the County of Los Angeles, State of
California.
10. SEVERABLE
PROVISIONS.
The
provisions of this Agreement are severable and if any one or more provisions are
determined to be illegal or for any reason unenforceable, in whole or in part,
the remaining provisions (and any partially unenforceable provisions to the
extent they are enforceable) shall nevertheless be binding and
enforceable. Further, if a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable as written,
such court may interpret, construe, rewrite or revise such provision, to the
fullest extent allowed by law, so as to make it valid and enforceable consistent
with the intent of the parties hereto.
11. FURTHER
ACTS.
Each
party hereto agrees to perform any further acts, vote his Securities in any
manner, and execute and deliver any documents which may reasonably be necessary
or desirable to carry out the provisions of this Agreement.
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12. COUNTERPARTS.
Each
party to this Agreement may sign a counterpart separate from all other parties
to this Agreement, and every counterpart taken together shall constitute one
agreement.
13. 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.
14. ARBITRATION.
Any
dispute under this Agreement will be resolved by binding arbitration conducted
in accordance with the rules and procedures of the American Arbitration
Association as they are then in effect in the County of Los Angeles, State of
California. In order to select an arbitrator, each party to the
dispute will select an arbitrator of its choice, and those selected arbitrators
will then select by mutual agreement a single arbitrator for the
proceeding. The decision of the arbitrator shall be final and binding
on the parties to this Agreement, and judgment thereon may be entered in the
Superior Court for the County of Los Angeles or any other court having
jurisdiction. Each party to this Agreement will advance one-half of
the arbitrator’s fees; however, all costs of the arbitration proceeding to
enforce this Agreement, including attorneys’ fees and witness expenses, shall be
paid by the party against whom the arbitrator rules. It is expressly
agreed that the parties to any such arbitration may take discovery as
contemplated and provided for by California Code of Civil Procedure
§1283.05. Notwithstanding anything herein to the contrary, the
parties hereto will not be required to submit a claim to arbitration if the
claim is for temporary or preliminary equitable or injunctive relief that could
not practicably be heard in a timely fashion through the arbitration
process.
15. RELEASE OF
LIABILITY.
Rice
makes no representations or warranties regarding the Securities subject to this
Agreement. Shareholder hereby releases Rice from any and all damages
or liability related to the Securities covered by this Agreement, including but
not limited to the value of the Securities, any tax consequences incurred by the
Shareholder as a result of the sale of the Securities (including the Common
Stock into which the Securities are convertible or exercisable) subject to this
Agreement, or the transferability of the Securities subject to this
Agreement.
16. REPRESENTATION.
The
parties hereto acknowledge that this Agreement was prepared by counsel to the
Company at the request of the parties. The parties specifically
acknowledge and agree that counsel to the Company is counsel only to the Company
and not to any other party. The parties hereto waive any conflict
that may be created by virtue of having this Agreement prepared by counsel to
the Company.
[Signature
page to follow]
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IN WITNESS WHEREOF, the
parties have signed this Agreement on the date first hereinabove set
forth.
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“Rice”
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/S/ XXXXXXX XXXX
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Xxxxxxx
Xxxx
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Address:
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0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx
X
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Xxxx Xxxxxx, Xxxxxxxxxx
00000
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“Shareholder”
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/S/ XXXXXX XXXXXX
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Xxxxxx
Xxxxxx
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Address:
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000 Xxxxxxx Xxxxx
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Xxxxxx, XX 00000
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