cxdo_ex102





 







Exhibit 10.2

 



VOTING AND SUPPORT AGREEMENT

 


This
VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of March 5,
2021, is entered into by and between the undersigned stockholder
(“Stockholder”)
of Crexendo, Inc., a Nevada corporation (the “Parent”), and NetSapiens, Inc., a
Delaware corporation (“Company”). Parent and Stockholder
are each sometimes referred to herein individually as a
“Party” and
collectively as the “Parties.”

 


WHEREAS,
concurrently with the execution of this Agreement, the Company,
Parent, Crexendo Merger Sub, Inc., a Delaware corporation and a
direct, wholly-owned subsidiary of Parent (“Merger Sub I”), Crexendo Merger
Sub, LLC, a Delaware limited liability company and a direct,
wholly-owned subsidiary of Parent (“Merger Sub II” and, together with
Merger Sub I, the “Merger
Subs”) and David Wang as Stockholder Representative
therein, have entered, into an Agreement and Plan of Merger and
Reorganization (as the same may be amended from time to time, the
“Merger
Agreement”), providing for, among other things, a
statutory merger of Merger Sub I with and into the Company (the
“First Merger”),
and, as part of the same overall transaction, the surviving
corporation in the First Merger would merge with and into Merger
Sub II (the “Second
Merger,” and together with the First Merger, the
“Mergers”)
pursuant to the terms and conditions of the Merger
Agreement;

 


WHEREAS, in order
to induce the Company to enter into the Merger Agreement,
Stockholder is willing to make certain representations, warranties,
covenants, and agreements as set forth in this Agreement with
respect to the shares of common stock, par value $0.001 per share,
of Parent (“Parent Common
Stock”) Beneficially Owned by Stockholder and set
forth below Stockholder’s signature on the signature page
hereto (the “Original
Shares” and, together with any additional shares of
Parent Common Stock pursuant to Section 6
hereof, the “Shares”); and

 


WHEREAS, the Board
of Directors of Parent has approved this Agreement and the
execution, delivery and performance thereof by the parties
hereto;

 


WHEREAS, obtaining
the Parent Stockholder Approval is a condition precedent to the
consummation of the Mergers;

 


WHEREAS, as a
condition to its willingness to enter into the Merger Agreement,
the Company has required that Stockholder, and Stockholder has
agreed to, execute and deliver this Agreement.

 


NOW,
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth
below and for other good and valuable consideration, the receipt,
sufficiency, and adequacy of which are hereby acknowledged, the
Parties hereto, intending to be legally bound, do hereby agree as
follows:

 



 

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1.           Definitions.

 


For
purposes of this Agreement, capitalized terms used and not
otherwise defined herein shall have the respective meanings
ascribed to such terms in the Merger Agreement. When used in this
Agreement, the following terms in all of their tenses, cases, and
correlative forms shall have the meanings assigned to them in this
Section 1.

 


(a)           “Beneficially
Own” or “Beneficial Ownership” has the
meaning assigned to such term in Rule 13d-3 under the Exchange Act,
and a Person’s beneficial ownership of securities shall be
calculated in accordance with the provisions of such rule (in each
case, irrespective of whether or not such rule is actually
applicable in such circumstance). For the avoidance of doubt,
“Beneficially Own” and “Beneficial
Ownership” shall also include record ownership of
securities.

 


(b)           “Beneficial
Owner” shall mean the Person who Beneficially Owns the
referenced securities.

 


2.           Representations
of Stockholder.

 


Stockholder
represents and warrants to the Company that:

 


(a)           Ownership
of Shares. Stockholder: (i) is the Beneficial Owner of all
of the Original Shares free and clear of any proxy, voting
restriction, adverse claim, or other Liens, other than those
created by this Agreement or under applicable federal or state
securities laws; and (ii) has the sole voting power over all of the
Original Shares. Except pursuant to this Agreement, there are no
options, warrants, or other rights, agreements, arrangements, or
commitments of any character to which Stockholder is a party
relating to the pledge, disposition, or voting of any of the
Original Shares and there are no voting trusts or voting agreements
with respect to the Original Shares.

 


(b)           Disclosure
of All Shares Owned. Stockholder does not Beneficially Own
any shares of Parent Common Stock other than: (i) the Original
Shares; and (ii) any options, warrants, or other rights to acquire
any additional shares of Parent Common Stock or any security
exercisable for or convertible into shares of Parent Common Stock,
set forth on the signature page of this Agreement (collectively,
“Options”).

 


(c)           Power
and Authority; Binding Agreement. Stockholder has the
requisite power and authority and legal capacity to enter into,
execute, and deliver this Agreement and to perform fully
Stockholder’s obligations hereunder (including the proxy
described in Section 3(b) below)). This Agreement has
been duly and validly executed and delivered by Stockholder and
constitutes the legal, valid, and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its
terms except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally or rules of law
governing specific performance, injunctive relief, other equitable
remedies and other general principles of equity.

 


(d)           No
Conflict. The execution and delivery of this Agreement by
Stockholder does not, and the consummation of the transactions
contemplated hereby and the compliance with the provisions hereof
will not, conflict with or violate any law applicable to
Stockholder or result in any breach of or violation of, or
constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights
of termination, amendment, acceleration, or cancellation of, or
result in the creation of any Lien on any of the Shares pursuant
to, any agreement or other instrument or obligation binding upon
Stockholder or any of the Shares.

 




 

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(e)           No
Consents. No consent, approval, Order, or authorization of,
or, except for any filings required under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder, registration, declaration, or filing with, any
Governmental Entity or any other Person on the part of Stockholder
is required in connection with the valid execution and delivery of
this Agreement. No consent of Stockholder’s spouse is
necessary under any “community property” or other laws
in order for Stockholder to enter into and perform its obligations
under this Agreement or, if required, such consent has been
obtained and is evidenced by a signed copy of the Consent of Spouse
on the form attached hereto as Exhibit A delivered to the
Company prior to or at the time of signing this
Agreement;

 


(f)           No
Litigation. There is no action, suit, investigation, or
proceeding (whether judicial, arbitral, administrative, or other)
(each an “Action”) pending against, or, to
the knowledge of Stockholder, threatened against or affecting,
Stockholder that would reasonably be expected to materially impair
or materially adversely affect the ability of Stockholder to
perform Stockholder’s obligations hereunder or to consummate
the transactions contemplated by this Agreement on a timely
basis.

 


(g)           Independent
Advice. Stockholder has carefully reviewed the Merger
Agreement, the other documentation relating to the Mergers and
other transactions contemplated in the Merger Agreement referred to
therein and this Agreement, and has had an opportunity to discuss
the Merger Agreement, such other documentation and this Agreement
with an attorney of his own choosing.

 


3.           Agreement
to Vote Shares; Irrevocable Proxy.

 



(a)           Agreement
to Vote and Approve. Stockholder irrevocably and
unconditionally agrees during the term of this Agreement, at any
annual or special meeting of Parent called with respect to the
following matters, and at every adjournment or postponement
thereof, and on every action or approval by written consent or
consents of Parent stockholders with respect to any of the
following matters, to vote or cause the holder of record to vote
the Shares: (i) in favor of (1) the Merger Agreement and the Parent
Stock Issuance and the other transactions contemplated by the
Merger Agreement, and (2) any proposal to adjourn or postpone such
meeting of stockholders of Parent to a later date if there are not
sufficient votes to approve the Parent Proposals; and (ii) (1)
against any action, proposal, transaction, or agreement which would
reasonably be expected to result in a breach of any covenant,
representation or warranty, or any other obligation or agreement of
Parent under the Merger Agreement or of Stockholder under this
Agreement, and (2) any action, proposal, transaction, or agreement
that would reasonably be expected to impede, interfere with, delay,
discourage, adversely affect, or inhibit the consummation of the
Mergers or the fulfillment of Parent’s, the Company’s,
the Stockholder Representative’s or the Merger Subs’
conditions under the Merger Agreement or change in any manner the
voting rights of any class of shares of Parent (including any
amendments to the Parent’s charter documents).

 




 

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(b)           Proxy.
Stockholder hereby appoints the Company and any designee of the
Company, and each of them individually, until the Expiration Time
(as defined below) (at which time this proxy shall automatically be
revoked), its proxies and attorneys-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent
during the term of this Agreement with respect to the Shares in
accordance with Section 3(a). This proxy and power of
attorney is given to secure the performance of the duties of the
Stockholder under this Agreement. Stockholder shall take such
further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy. This proxy and
power of attorney granted by Stockholder shall be irrevocable until
the Expiration Time, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy, and shall revoke
any and all prior proxies granted by the Stockholder with respect
to the Shares. The power of attorney granted by Stockholder herein
is a durable power of attorney and shall survive the bankruptcy,
death, or incapacity of Stockholder. The proxy and power of
attorney granted hereunder shall terminate at the Expiration
Time.

 


4.           No
Voting Trusts or Other Arrangement.

 


Stockholder agrees
that during the term of this Agreement, Stockholder will not, and
will not permit any entity under Stockholder’s control to,
deposit any of the Shares in a voting trust, grant any proxies with
respect to the Shares, or subject any of the Shares to any
arrangement with respect to the voting of the Shares other than
agreements entered into with the Company.

 



5.           Transfer
and Encumbrance.

 


Stockholder agrees
that during the term of this Agreement, except as specifically
contemplated by the Merger Agreement, Stockholder will not,
directly or indirectly, transfer, sell, offer, exchange, assign,
pledge, convey any legal or Beneficial Ownership interest in or
otherwise dispose of (by merger (including by conversion into
securities or other consideration), by tendering into any tender or
exchange offer, by testamentary disposition, by operation of law,
or otherwise), or encumber (“Transfer”) any of the Shares or
enter into any contract, option, or other agreement with respect
to, or consent to, a Transfer of, any of the Shares or
Stockholder’s voting or economic interest therein, provided,
that Stockholder may pledge or encumber any of the Shares so long
as such pledge or encumbrance would not impair Stockholder’s
ability to perform his obligations under this Agreement. Any
attempted Transfer of Shares or any interest therein in violation
of this Section 5 shall be null and void. This Section 5 shall not
prohibit a Transfer of the Shares by any Stockholder to any member
of Stockholder’s immediate family, or to a trust for the
benefit of Stockholder or any member of Stockholder’s
immediate family, or upon the death of Stockholder or to an
Affiliate of Stockholder; provided, that a Transfer referred to in
this sentence shall be permitted only if, as a precondition to such
Transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to be bound by all of
the terms of this Agreement.

 




 

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6.           Additional
Shares.

 


Stockholder agrees
that all shares of Parent Common Stock that Stockholder purchases,
acquires the right to vote, or otherwise acquires Beneficial
Ownership of after the execution of this Agreement and prior to the
Expiration Time shall be subject to the terms and conditions of
this Agreement and shall constitute Shares for all purposes of this
Agreement. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization, reclassification, combination,
exchange of shares, or the like of the capital stock of Parent
affecting the Shares, the terms of this Agreement shall apply to
the resulting securities and such resulting securities shall be
deemed to be “Shares” for all purposes of this
Agreement.

 


7.           Waiver
of Certain Other Actions.

 


(a)           [Intentionally
Omitted].

 


(b)           Waiver
of Certain Other Actions. To the fullest extent permitted
under law, Stockholder hereby agrees not to commence or participate
in, and to take all actions necessary to opt out of any class in
any class action with respect to, any Action, derivative or
otherwise, against Parent, the Company, or any of their respective
subsidiaries or successors: (a) challenging the validity of, or
seeking to enjoin or delay the operation of, any provision of this
Agreement or the Merger Agreement (including any claim seeking to
enjoin or delay the Closing); or (b) alleging a breach of any duty
of the Board of Directors of the Company or Parent in connection
with the Merger Agreement, this Agreement, or the transactions
contemplated thereby or hereby.

 



8.           Termination.

 


This
Agreement shall terminate upon the earliest to occur of (the
“Expiration
Time”): (a) the First Effective Time; (b) the date on
which the Merger Agreement is terminated in accordance with its
terms; and (c) the termination of this Agreement by mutual written
consent of the Parties. Nothing in this Section 8 shall relieve or
otherwise limit the liability of any Party for any intentional
breach of this Agreement prior to such termination.

 


9.           [Intentionally
Omitted].

 


10.           No
Agreement as Director or Officer.

 


Stockholder makes
no agreement or understanding in this Agreement in
Stockholder’s capacity as a director or officer of Parent or
any of its subsidiaries (if Stockholder holds such office), and
nothing in this Agreement: (a) will limit or affect any actions or
omissions taken by Stockholder in stockholder’s capacity as
such a director or officer of Parent, including in exercising
rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement; or (b) will be
construed to prohibit, limit, or restrict Stockholder from
exercising Stockholder’s fiduciary duties as an officer or
director to Parent or its stockholders.

 


11.           Further
Assurances.

 


Stockholder
agrees, from time to time, and without additional consideration, to
execute and deliver such additional documents and other instruments
and to take all such further action as the Company may reasonably
request to consummate and make effective the transactions
contemplated by this Agreement.

 




 

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12.           Reserved.

 


13.           Specific
Performance.

 


Each
Party hereto acknowledges that it will be difficult to measure in
money the damage to the other Party 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 Party may not have an adequate remedy at
law or damages. Accordingly, each Party hereto agrees that the
other Party may seek injunctive relief or other equitable remedy,
in addition to remedies at law or damages, as a remedy for any such
failure and will not oppose the seeking of such relief on the basis
that the other Party has an adequate remedy at law. 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 the other Party’s seeking or obtaining such equitable
relief.

 


14.           Entire
Agreement.

 


This
Agreement supersedes all prior agreements, written or oral, between
the Parties hereto with respect to the subject matter hereof and
contains the entire agreement between the Parties with respect to
the subject matter hereof. This Agreement may not be amended or
supplemented, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by both of the Parties
hereto. No waiver of any provisions hereof by either Party shall be
deemed a waiver of any other provisions hereof by such Party, nor
shall any such waiver be deemed a continuing waiver of any
provision hereof by such Party.

 



15.           Notices.

 


All
notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to
have been given: (a) when delivered by hand (with written
confirmation of receipt); (b) when received by the addressee if
sent by a nationally recognized overnight courier (receipt
requested); (c) on the date sent by email of a PDF document (with
confirmation of transmission) if sent during normal business hours
of the recipient, and on the next Business Day if sent after normal
business hours of the recipient; or (d) on the third day after the
date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the
respective Parties at the following addresses (or at such other
address for a Party as shall be specified in a notice given in
accordance with this Section 15):

 


NetSapiens,
Inc.


PO Box
8588


La
Jolla, CA 92038


Attention: Anand
Buch


Email:
abuch@netsapiens.com


 


with a
copy (which shall not constitute notice) to:

 


Procopio, Cory,
Hargreaves & Savitch LLP


525 B
Street, Suite 2200


San
Diego, California 92101


Attention: William
W. Eigner, Esq.


Email:
william.eigner@procopio.com

 




 

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If to
Stockholder, to the address or email address set forth for
Stockholder on the signature page hereof.

 


Copy
to:

 


Squire
Patton Boggs (US) LLP


1 E.
Washington St., Suite 2700


Phoenix, Arizona
85004


Attention: Matthew
M. Holman, Esq.


Email:
matthew.holman@squirepb.com

 


16.           Miscellaneous.

 


(a)           Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.

 



(b)           Submission
to Jurisdiction. Each of the Parties hereto irrevocably
agrees that any legal action with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and
enforcement of any judgment in respect of this Agreement and the
rights and obligations arising hereunder brought by the other Party
hereto or its successors or assigns shall be brought and determined
exclusively in the Court of Chancery of the State of Delaware, or
in the event (but only in the event) that such court does not have
subject matter jurisdiction over such legal action, in the federal
court within the State of Delaware. Each of the Parties hereto
agrees that mailing of process or other papers in connection with
any such legal action in the manner provided in Section 15 or in
such other manner as may be permitted by applicable laws, will be
valid and sufficient service thereof. Each of the Parties hereto
hereby irrevocably submits with regard to any such legal action for
itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid
courts and agrees that it will not bring any action relating to
this Agreement or any of the transactions contemplated by this
Agreement in any court or tribunal other than the aforesaid courts.
Each of the Parties hereto hereby irrevocably waives, and agrees
not to assert, by way of motion, as a defense, counterclaim, or
otherwise, in any legal action with respect to this Agreement and
the rights and obligations arising hereunder, or for recognition
and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder: (i) any claim that it
is not personally subject to the jurisdiction of the above named
courts for any reason other than the failure to serve process in
accordance with this Section 16(b); (ii) any claim
that it or its property is exempt or immune from jurisdiction of
any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment,
or otherwise); and (iii) to the fullest extent permitted by the
applicable law, any claim that (x) the suit, action, or proceeding
in such court is brought in an inconvenient forum, (y) the venue of
such suit, action, or proceeding is improper, or (z) this
Agreement, or the subject matter hereof, may not be enforced in or
by such courts.

 




 

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(c)           Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTACT, TORT, OR OTHERWISE) ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY
HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR THE ACTIONS
OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF.

 


(d)           Expenses.
All costs and expenses incurred in connection with this Agreement
shall be paid by the Party incurring such cost or expense, whether
or not the Mergers is consummated; provided that the Company shall
pay the costs and expenses of the Stockholder.

 

 


(e)           Severability.
In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the
application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible,
the economic, business and other purposes of such void or
unenforceable provision.

 


(f)          
Counterparts. This
Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood
that all parties need not sign the same counterpart. The exchange
of a fully executed Agreement (in counterparts or otherwise) by
facsimile, electronic transmission in PDF or any electronic
signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com format shall be sufficient to bind the parties to
the terms and conditions of this Agreement.

 


(g)           Section
Headings. All section headings herein are for convenience of
reference only and are not part of this Agreement, and no
construction or reference shall be derived therefrom.

 



(h)           Assignment.
Neither Party to this Agreement may assign any of its rights or
obligations under this Agreement without the prior written consent
of the other Party hereto. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective permitted
successors and assigns. Any assignment contrary to the provisions
of this Section 16(h) shall be null and
void.

 


(i)           No
Third-Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person
other than the Parties and their respective successors and
permitted assigns any legal or equitable right, benefit, or remedy
of any nature under or by reason of this Agreement.

 


[SIGNATURE
PAGE FOLLOWS]

 




 

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IN
WITNESS WHEREOF, the Parties hereto have executed and delivered
this Agreement as of the date first written above.

 


	
 

	

NETSAPIENS,
INC.


 

 


 


	
 

	

By
/s/Anand
Buch



Name:
Anand Buch


Title:
Chief Executive Officer &


          Co-Founder


 

 


 


	
 

	

STOCKHOLDER


 


	
 

	

/s/ Steven
G. Mihaylo



Name:
Steven G. Mihaylo


Number
of Shares of Parent Common Stock Beneficially Owned as of the date
of this Agreement: 10,298,468


Number
of Options Beneficially Owned as of the date of this Agreement:
116,234


Street
Address: 1615 S. 52nd Street


City/State/Zip
Code: Tempe, AZ 85281


Email:
smihaylo@crexendo.com


 

 


 







 

 

 

 


 



 


[Signature Page to
Voting and Support Agreement]








 





 



EXHIBIT A

 

 



CONSENT OF SPOUSE

 


I,
_________________, spouse of Steven G. Mihaylo, acknowledge that I
have read the Voting and Support Agreement, dated as of March ___,
2021, by and between NetSapiens, Inc., a Delaware corporation, and
Steven G. Mihaylo, to which this Consent is attached as
Exhibit A (as the
same may be amended or amended and restated from time to time, the
“Agreement”),
and that I understand the contents of the Agreement. I am aware
that my spouse is a party to the Agreement and the Agreement
contains provisions regarding the voting and transfer of the Shares
(as defined in the Agreement) which my spouse may own, including
any interest I might have therein.

 


I
hereby agree that I and any interest, including any community
property interest, that I may have in any of the Shares subject to
the Agreement shall be irrevocably bound by the Agreement,
including any restrictions on the transfer or other disposition of
any of the Shares or voting or other obligations as set forth in
the Agreement. I hereby appoint Steven G. Mihaylo as my
attorney-in-fact with respect to the exercise of any rights and
obligations under the Agreement.

 


This
Consent shall be binding on my executors, administrators, heirs and
assigns. I agree to execute and deliver such documents as may be
necessary to carry out the intent of the Agreement and this
Consent.

 


I am
aware that the legal, financial and related matters contained in
the Agreement are complex and that I am free to seek independent
professional guidance or counsel with respect to this Consent. I
have either sought such guidance or counsel or determined after
reviewing the Agreement carefully that I will waive such right. I
am under no disability or impairment that affects my decision to
sign this Consent and I knowingly and voluntarily intend to be
legally bound by this Consent.

 


Dated
as of __________

 


 

 


 

 


__________________________________

 


Signature

 


__________________________________

 


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