0001065949-14-000189.txt : 20140813
0001065949-14-000189.hdr.sgml : 20140812
20140812083733
ACCESSION NUMBER: 0001065949-14-000189
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20140812
DATE AS OF CHANGE: 20140812
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: InterMetro Communications, Inc.
CENTRAL INDEX KEY: 0001160142
STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813]
IRS NUMBER: 880476779
STATE OF INCORPORATION: NV
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-82324
FILM NUMBER: 141032494
BUSINESS ADDRESS:
STREET 1: 2685 PARK CENTER DRIVE, BUILDING A
CITY: SIMI VALLEY
STATE: CA
ZIP: 93065
BUSINESS PHONE: 805-433-8000
MAIL ADDRESS:
STREET 1: 2685 PARK CENTER DRIVE, BUILDING A
CITY: SIMI VALLEY
STATE: CA
ZIP: 93065
FORMER COMPANY:
FORMER CONFORMED NAME: LUCYS CAFE INC
DATE OF NAME CHANGE: 20010926
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: Benson Douglas LeRoy
CENTRAL INDEX KEY: 0001370546
FILING VALUES:
FORM TYPE: SC 13D/A
MAIL ADDRESS:
STREET 1: 2685 PARK CENTER DRIVE
STREET 2: BUILDING A
CITY: SIMI VALLEY
STATE: CA
ZIP: 93065
SC 13D/A
1
benson13da.txt
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 1)
Under the Securities Exchange Act of 1934
INTERMETRO COMMUNICATIONS, INC.
------------------------------------------------------
(Name of Issuer)
COMMON STOCK
------------------------------------------------------
(Title of Class of Securities)
45882 L 10 1
------------------------------------------------------
(CUSIP Number)
Douglas LeRoy Benson
InterMetro Communications, Inc.
2685 Park Center Dr., Bldg A
Simi Valley, CA 93065
805.433.8000 (main)
------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 1, 2014
------------------------------------------------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. [ ]
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act.
SCHEDULE 13D
--------------------------
Page 2 of 5 Pages
--------------------------
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: Douglas LeRoy Benson
--------------------------------------------------------------------------------
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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
--------------------------------------------------------------------------------
Number of 7 SOLE VOTING POWER 4,113,091
Shares --------------------------------------------------------
Beneficially 8 SHARED VOTING POWER 23,000,000
owned by --------------------------------------------------------
Each 9 SOLE DISPOSITIVE POWER 27,113,091
Reporting --------------------------------------------------------
Person 10 SHARED DISPOSITIVE POWER 0
with
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,113,091
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.63%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON IN
--------------------------------------------------------------------------------
--------------------------
Page 3 of 5 Pages
--------------------------
Item 1. Security and Issuer.
-----------------------------
This Amendment No. 1 to statement on Schedule 13D relates to shares of
common stock and Series B Convertible Preferred Stock of InterMetro
Communications, Inc, a Nevada corporation ("the Company"). The address of the
principal executive offices of the Company is 2685 Park Center Drive, Bldg. A,
Simi Valley, CA 93065
Item 2. Identity and Background.
---------------------------------
Name: Douglas LeRoy Benson
Business Addr: 11933 Lake Chapin Road
Berrien Springs, MI 49103
Principle Occupation: Retired Physician
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)
nor been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to 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 requirement of the Reporting Person to file this 13D was triggered
originally by the purchase of 3,643,397 shares of common stock of the Company in
connection with a business combination between the Company and its predecessor
in December 2006 for $591,313.71 of which 400,000 shares were gifted to third
parties in 2012. The Reporting Person also holds 869,694 options to purchase
common stock of the Issuer.
On August 1, 2014, the Reporting Person acquired an additional
3,000,000 shares of Series B Convertible Preferred Stock of the Company and a
warrant to purchase 3,000,000 shares of common stock of the issuer for a total
purchase price of $3,000,000. The 3,000,000 shares of Series B Convertible
Preferred are convertible into 20,000,000 shares of common stock of the Company.
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 plans or proposals to engage in any of the matters contemplated by paragraphs
(a) through (j) of Item 4 to Schedule 13D.
--------------------------
Page 4 of 5 Pages
--------------------------
Item 5. Interest in Securities of the Issuer.
----------------------------------------------
As of August 1, 2014, the date which required the filing of this
Amendment No. 1 to Schedule 13D, the Reporting Person beneficially owned an
aggregate of 27,113,091 shares of the Company's Common Stock, including
3,869,694 shares subject to options and warrants that were exercisable within
sixty days, and 20,000,000 shares of common stock issuable upon conversion of
3,000,000 shares of Series B Convertible Preferred Stock, representing 32.63% of
the Company's outstanding Common Stock as of August 1, 2014, based on 83,084,093
shares outstanding on May 15, 2014 as reported in the Company's Form 10-Q filed
on May 20, 2014.
As of the date of this Schedule, the Reporting Person beneficially owns
an aggregate of 27,113,091 shares of the Company's Common Stock, including
3,869,694 shares subject to options and warrants that were exercisable within
sixty days, and 20,000,000 shares of common stock issuable upon conversion of
3,000,000 shares of Series B Convertible Preferred Stock, representing 32.63% of
the Company's outstanding Common Stock as of August 1, 2014, based on 83,084,093
shares outstanding on May 15, 2014 as reported in the Company's Form 10-Q filed
on May 20, 2014.
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.
--------------------------------------------------------------------------------
In connection with the sale of Series B Convertible Preferred Stock and
warrants on August 1, 2014, the Reporting Person entered into a Voting Agreement
with Mr. Charles Rice, a shareholder of the Company. Under the Voting Agreement,
in the event that the Series B Convertible Preferred Stock or warrants to
purchase common stock are converted into shares of common stock, the Reporting
Person has agreed to vote the 20,000,000 shares of common stock issued upon
conversion of the Series B Convertible Preferred and the 3,000,000 shares of
common stock issuable upon exercise of the warrant as may be directed by Mr.
Rice in his sole and absolute discretion, and has agreed to provide Mr. Rice
with a proxy authorizing these shares to be voted as Mr. Rice directs. As a
result, upon conversion of the Series B Preferred Stock and exercise of the
warrant to purchase common stock, Mr. Rice will hold sole voting power over
23,000,000 shares of common stock held by the Reporting Person.
Item 7. Material to be Filed as Exhibits.
------------------------------------------
Exhibit 99.1. Voting Agreement between InterMetro Communications, Inc., Mr.
Charles Rice and the Reporting Person.
--------------------------
Page 5 of 5 Pages
--------------------------
SIGNATURE
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: August 12, 2014
/s/ Douglas L. Benson
---------------------------------
Name: Douglas LeRoy Benson
EX-99.1
2
ex99.1benson13da.txt
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).
Voting Agreement
Page 1 of 6
Series B Preferred
(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.
Voting Agreement
Page 2 of 6
Series B Preferred
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):
Voting Agreement
Page 3 of 6
Series B Preferred
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:
---------------------------------------
---------------------------------------
ATTN: --------------------------------
Email: --------------------------------
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
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
Voting Agreement
Page 4 of 6
Series B Preferred
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
-----------------------------------------
Charles Rice
[SUBSCRIBER]
By:/s/ Douglas L. Benson
-----------------------------------------
Name: Douglas L. Benson
Title:
Voting Agreement
Page 5 of 6
Series B Preferred
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
Page 6 of 6
Series B Preferred