Securities Registration: Employee Benefit Plan (s-8)
24 Maio 2021 - 11:26AM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
———————
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
———————
Crexendo, Inc.
(Exact name of registrant as specified in its charter)
———————
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Nevada
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87-0591719
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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1615 South 52nd Street, Tempe,
Arizona
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85281
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(Address of Principal Executive Offices)
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(Zip Code)
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(602) 714-8500
(Registrant’s telephone number, including area
code)
———————
2021 EQUITY INCENTIVE PLAN
(Full title of the plan)
———————
Steven G. Mihaylo
Chief Executive Officer and Chairman
Crexendo, Inc.
1615 S. 52nd
St.
Tempe, Arizona 85281
(602) 714-8500
(Name, address, and telephone
number, including area code, of agent for
service)
——————-
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Title of
Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering Price Per Share
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Proposed Maximum
Aggregate Offering Price
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Amount of
Registration Fee
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Common Stock (par
value $0.001 per share) to be issued under the Crexendo, Inc. 2013
Long-Term Incentive Plan
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4,038,832(2)
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$3.36(4)
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$13,570,475(6)
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$1,480.54
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Common Stock (par
value $0.001 per share) to be issued under the Crexendo, Inc. 2021
Equity Incentive Plan
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10,000,000(3)
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$5.30(5)
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$53,000,000
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$5,782.30
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Total
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$7,262.84
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(1)
Pursuant to Rule
416(a) of the Securities Act of 1933, as amended, this Registration
Statement shall also cover any additional shares of the
Registrant’s common stock that become issuable under
Crexendo, Inc. 2021 Equity Incentive Plan, by reason of any stock
dividend, stock split, recapitalization or other similar
transaction effected without receipt of consideration that
increases the number of the Registrant’s outstanding shares
of common stock.
(2)
This subtotal
represents shares issuable upon exercise of options that have been
granted as of the date of this Registration Statement issued under
the 2013 Long-Term Incentive Plan. No additional options will be
issued pursuant to the 2013 Long-Term Incentive Plan.
(3)
This subtotal
represents shares reserved for issuance under the 2013 Long-Term
Incentive Plan.
(4)
Estimated solely
for purposes of calculating the registration fee in accordance with
Rules 457(c) and (h) under the Securities Act of 1933, as amended,
on the basis of the weighted average exercise price of awards
outstanding under the 2013 Long-Term Incentive Plan as of December
31, 2020, whose exercise will result in the issuance of share
registered.
(5)
Estimated solely
for purposes of calculating the registration fee in accordance with
Rules 457(h) under the Securities Act of 1933, as amended. The
proposed maximum offering price of $5.30 per share for 4,038,832
shares is based on the average of the reported high and low sales
prices for the Registrant’s common stock as reported by the
Nasdaq Capital Market on May 14, 2021.
(6)
Calculated in
accordance with Rule 457(h) based on the aggregate exercise price
for all presently outstanding options described in Note 2
above.
The
Amount of the Registration Fee is calculated pursuant to Section
6(b) of the Securities Act, which currently provides that the
adjusted fee rate for fiscal 2021 shall be “$109.10 per $1
million” of the maximum aggregate price at which such
securities are proposed to be offered.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for by Part I of Form S-8 is
omitted from this Registration Statement in accordance with Rule
428 of the Securities Act and the instructions to
Form S-8. In accordance with the rules and regulations of
the Commission and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of
this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Crexendo,
Inc. hereby incorporates by reference in this Registration
Statement the following documents filed by it with the
Commission:
(1)
The
Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2020 filed with the Commission on March 9,
2021;
(2)
The
Registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2021, filed with the Commission on May 11,
2021;
(3)
The
Registrant’s Current Reports on Form 8-K, filed on May 18,
2021, May 11, 2021, April 23, 2021, March 12, 2021, and March 8,
2021;
(4)
The description of the Company’s Common Stock contained in
its Form 10-K dated March 3, 2020, and any amendment or report
filed for the purpose of updating such description;
(5)
The
Company’s Definitive Proxy Statement on Schedule 14A, filed
with the Commission on April 26, 2021; and
(6)
The
2013 Long-Term Incentive Plan incorporated by reference to exhibit
filed with the Registrant’s Current Report on Form 8-K, filed
with the Commission on August 13, 2013.
All
documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), prior to the filing of
a post-effective amendment to this Registration Statement that
indicates all securities offered hereby have been sold or that
de-registers all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Jeffrey
G. Korn our General Council holds employee stock options and
restricted stock units representing 2% of the Registrant’s
outstanding stock.
Item 6. Indemnification of Directors and Officers.
Nevada Revised Statutes (“NRS”) Sections 78.7502 and
78.751 provide us with the power to indemnify any person who is or
was our director, officer, employee or agent. The person entitled
to indemnification must have conducted himself in good faith, and
must reasonably believe that his conduct was in, or not opposed to,
our best interests. In a criminal action, the indemnified person
must also not have had reasonable cause to believe that his conduct
was unlawful. In addition, any person who is or was our director,
officer, employee or agent is entitled to indemnification if such
person is successful on the merits or otherwise in defense of any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative against
actual and reasonable expenses incurred in connection with
defending such action.
Under NRS Section 78.751, advances for expenses may be made by
agreement if the director or officer affirms in writing to repay
the expenses if it is determined that such officer or director is
not entitled to be indemnified.
Our Bylaws provide that we shall indemnify each director or
officer, whether or not in office, and any person whose testator or
intestate was such a director or officer, for the defense of, or in
connection with, any threatened, pending or completed actions or
proceedings and appeals therein, whether civil, criminal,
administrative or investigative, to the fullest extent permitted
under the NRS, against all judgments, fines, amounts paid in
settlements, and all expenses actually and reasonably incurred by
such person as a result of such action or proceeding, or actually
and reasonably incurred by such person (a) in making an application
for payment of such expenses before any court or other governmental
body, (b) in otherwise seeking to enforce these Bylaws provisions,
or (c) in securing or enforcing such person’s right under any
policy or director or officer liability insurance provided by
us.
Our Bylaws further provide that we may pay expenses incurred by a
director or officer in connection with any action or proceeding as
to which indemnification may be given in advance of the final
disposition of such action or proceeding upon (a) the receipt of an
undertaking by or on behalf of such director or officer to repay
such advancement in case such director or officer is ultimately
found not to be entitled to indemnification as authorized by our
Bylaws and (b) approval by the board of directors acting by a
quorum consisting of directors who are not parties to such action
or proceeding or, if such a quorum is not obtainable, then approval
by the stockholders, and to the extent permitted by law, the board
of directors or, if applicable, the stockholders, shall not be
required to find that the director or officer has met the
applicable standard of conduct provided by law for indemnification
in connection with such action or proceeding before the corporation
makes any advance payment of expenses hereunder.
The rights of indemnification and to the advancement of expenses
provided by our Bylaws are contractual and shall be available with
respect to events occurring prior to the adoption of these Bylaws
provisions; continue to exist after any rescission or restrictive
amendment of these Bylaws provisions with respect to events
occurring prior to such rescission or amendment; and shall be
interpreted on the basis of applicable law in effect at the time of
the occurrence of the event or events giving rise to the action or
proceeding or, at the sole discretion of the person entitled to
indemnification, on the basis of applicable law in effect at the
time such rights are claimed.
In
addition to indemnification provided in our Bylaws, we entered into
employment agreements with certain prior officers with
indemnification provisions to survive the termination of such
agreements, which provided for indemnification of such officers
consistent with that permitted by NRS and our Bylaws. We also have
an indemnification agreement with a current officer, which
provides, among other things, for indemnification to the fullest
extent permitted by law against any and all expenses, judgments,
fines, penalties and amounts paid in settlement of any claim
arising from his officer status. The indemnification agreement also
provides for the advancement or payment of all expenses to the
indemnitee and for the reimbursement to us if it is found that such
indemnitee is not entitled to such indemnification under applicable
law.
Item 7. Exemption From Registration Claimed.
Not
applicable.
4.1
Crexendo, Inc. 2021
Equity Incentive Plan, incorporated herein by reference to the
Registrants Definitive Proxy Statement filed on April 26,
2021
5.1*
Opinion of Jeffrey
G. Korn, esquire
23.1*
Consent of Urish
Popeck & Co., LLC, Independent Registered Public Accounting
Firm
23.2*
Consent of Jeffrey
G. Korn, esquire (contained in Exhibit 5.1 hereto)
24.1*
Power of Attorney
(included on signature page of this registration
statement)
*Filed
herewith
Item 9. Undertakings
A.
The undersigned
Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee”
table in the effective registration statement;
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
B.
The undersigned
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C.
Insofar as
indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tempe, State
of Arizona, on May 21,
2021.
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Crexendo, Inc.
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By: /s/
Steven G. Mihaylo
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Steven
G. Mihaylo, Chief Executive Officer and
Chairman
of the Board
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven G. Mihaylo and Ronald
Vincent, and each of them, his attorneys-in-fact, each with the
power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and all
post-effective amendments thereto, and to file the same, with all
exhibits thereto in all documents in connection therewith, with the
SEC, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Steven G.
Mihaylo
Steven
G. Mihaylo
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Chief
Executive Officer, Chairman of the Board of Directors
(Principal Executive Officer)
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May 21,
2021
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/s/
Ronald
Vincent
Ronald
L. Vincent
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Chief
Financial Officer
(Principal Financial and Accounting Officer)
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May 21,
2021
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/s/
Todd
Goergen
Todd
Goergen
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Director
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May 21,
2021
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/s/
Jeffrey P.
Bash
Jeffrey
P. Bash
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Director
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May 21,
2021
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/s/
David
Williams
David
Williams
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Director
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May 21,
2021
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/s/
Anil
Puri
Anil
Puri
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Director
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May 21,
2021
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INDEX TO EXHIBITS
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Exhibit Number
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Description
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Crexendo, Inc. 2013
Long-Term Incentive Plan, incorporated herein by reference to the
Registrants Definitive Proxy Statement filed on April 26,
2021
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Opinion
of Jeffrey G. Korn, esquire
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Consent
of Urish Popeck & Co., LLC, Independent Registered Public
Accounting Firm
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Consent
of Jeffrey G. Korn, esquire (contained in Exhibit 5.1
hereto)
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Power
of Attorney (see signature page)
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