SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
|Date of Report (Date of earliest event reported):
|July 27, 2022
MULLEN AUTOMOTIVE INC.
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction of
|(Commission File Number)
|(IRS Employer Identification No.)
1405 Pioneer Street, Brea, California 92821
|Registrant’s telephone number, including area code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
|Title of each class
|Name of each exchange on which registered
|Common Stock, par value $0.001
|The Nasdaq Stock Market, LLC (Nasdaq Capital Market)
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
|Material Modification To Rights of Security Holders.
The information set forth in Item 5.03 below is incorporated by reference herein in response to this Item.
|Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
2022 Equity Incentive Plan
On July 26, 2022, at the 2022 Annual Meeting of Stockholders (“2022 Annual Meeting”) of Mullen Automotive Inc. (the “Company”), the Company’s stockholders approved the 2022 Equity Incentive Plan (the “2022 Plan”). Additional details about the 2022 Plan are set forth in the Company’s Definitive Proxy Statement on Schedule 14A, as filed with the Securities and Exchange Commission (“SEC”) on June 24, 2022 and the Supplement to the Proxy Statement filed with the SEC on July 13, 2022 (collectively, the “Proxy Statement”), and are incorporated herein by reference.
The 2022 Plan provides for grants of stock options, stock appreciation rights , stock awards and restricted stock units, all of which are sometimes referred to individually, to employees, consultants, non-employee directors of the Company and its subsidiaries. Stock options may be either incentive stock options, as defined in Section 422 of the Internal Revenue Code, or non-qualified stock options. The 2022 Plan authorizes the grant of awards relating to up to 175,000,000 shares of the Company’s common stock. The foregoing description is qualified in its entirety by the full text of the 2022 Plan which is set forth in Appendix B to the Proxy Statement and is incorporated herein by reference.
CEO Performance Stock Award Agreement
On May 5, 2022, the Company’s Board of Directors (the “Board”) (1) determined that the grant of performance equity awards to the Chief Executive Officer (“CEO Performance Award”) pursuant to the Performance Stock Award Agreement (the “PSA Agreement”) was advisable and in the best interests of the Company and its stockholders and (2) approved entering into the PSA Agreement and the grant of the CEO Performance Award.
On July 26, 2022, at the 2022 Annual Meeting, the Company’s stockholders approved, for purposes of complying with Nasdaq Listing Rule 5635(c), of the issuance of shares of common stock to the Company’s Chief Executive Officer, David Michery, pursuant to the PSA Agreement. The CEO Performance Award represents the right of Mr. Michery to receive shares of common stock of the Company based on the achievement of milestones, subject to the terms and conditions set forth in the PSA Agreement. Additional details about the CEO Performance Award and PSA Agreement are set forth in the Proxy Statement and Supplement to the Proxy Statement and are incorporated herein by reference.
The foregoing description is qualified in its entirety by the full text of the PSA Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K, and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On July 26, 2022, at the 2022 Annual Meeting, the Company’s stockholders approved an amendment (the “Amendment”) to Section A of Article III of the Company’s Second Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to increase the Company’s number of shares of authorized common stock, par value $0.01 per share, from 500,000,000 shares to 1,750,000,000 shares and increase the number of shares of Preferred Stock that we are authorized to issue from 58,000,000 shares of Preferred Stock to 500,000,000 shares of Preferred Stock, with a corresponding increase in our total authorized capital stock, which includes Common Stock and Preferred Stock, from 558,000,000 shares to 2,250,000,000 shares.
The Amendment, and the respective reasons therefor, are described under Proposal No. 2 in the Proxy Statement and are incorporated herein by reference.
On July 26, 2022, the Company filed a Certificate of Amendment to the Company’s Certificate of Incorporation with the Delaware Secretary of State implementing the Amendment. The foregoing description is qualified in its entirety by the full text of the Certificate of Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K, and is incorporated herein by reference.
|Submission of Matters to a Vote of Security Holders.
On July 26, 2022, the Company held its 2022 Annual Meeting, at which a quorum for the transaction of business was present or represented by proxy. Proxies for the 2022 Annual Meeting were solicited by the Board pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended, and there was no solicitation in opposition to the Board’s solicitation. There were 480,294,481 shares of Common Stock, 1,925 shares of Series A Preferred Stock and 6,153,000 shares of Series C Preferred Stock entitled to vote at the 2022 Annual Meeting. Holders of Series A Preferred Stock are entitled to one thousand (1,000) votes for each share of Series A Preferred Stock. Holders of Series C Preferred Stock are entitled to one (1) vote for each share of Common Stock into which such Series C Preferred Stock may be converted. A total of 302,018,291 votes were represented at the 2022 Annual Meeting in person or by proxy. The final votes on the proposals presented at the 2022 Annual Meeting were as follows:
Proposal No. 1: To elect three Class I directors to serve for a three-year term ending as of the annual meeting in 2025. Each of the three nominees listed below has been elected to serve as Class I director on the Board of Directors for a three-year term ending as of the annual meeting in 2025 or until their respective successors are elected and qualify. The voting results were as follows:
Proposal No. 2: To approve an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to increase the authorized number of shares of Common Stock to 1,750,000,000, the authorized number of shares of Preferred Stock to 500,000,000 and in conjunction therewith, to increase the aggregate number of authorized shares to 2,250,000,000 shares. The proposal was approved by a vote of stockholders as follows:
Proposal No. 3: To approve the Company’s 2022 Equity Incentive Plan. The proposal was approved by a vote of stockholders as follows:
Proposal No. 4: To approve, for purposes of complying with Nasdaq Listing Rule 5635(c), of the issuance of shares of Common Stock to our Chief Executive Officer pursuant to a Performance Stock Award Agreement. The proposal was approved by a vote of stockholders as follows:
Proposal No. 5: To approve, for purposes of complying with Nasdaq Listing Rule 5635(d), of the potential issuance of Series D Preferred Stock and warrants and shares of Common Stock upon conversion of the Series D Preferred Stock and warrants, and any future adjustments of conversion price of the Series D Preferred Stock and exercise price of the Warrants. The proposal was approved by a vote of stockholders as follows:
Proposal No. 6: To ratify the appointment of Daszkal Bolton, LLP as the independent registered public accounting firm of the Company for the fiscal year ending September 30, 2022. The ratification was approved by a vote of stockholders as follows:
Item 9.01. Financial Statements and Exhibits
|Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on July 26, 2022
|Mullen Automotive Inc. 2022 Equity Incentive Plan (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement (Schedule 14A) filed with the SEC on June 24, 2022).
|CEO Performance Stock Award Agreement dated May 5, 2022 between Mullen Automotive Inc. and David Michery
|Cover Page Interactive Data File (embedded within the Inline XBRL document).
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
|MULLEN AUTOMOTIVE INC.
|Date: July 27, 2022
|/s/ David Michery
|Chief Executive Officer
CERTIFICATE OF AMENDMENT
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
MULLEN AUTOMOTIVE INC.
Mullen Automotive Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company"), hereby certifies as follows:
1. That by unanimous written consent the board of directors of the Company duly adopted resolutions setting forth a proposed amendment of the Company's Second Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation"), declaring the amendment to be advisable and calling a meeting of stockholders for consideration thereof.
2. That the resolution setting forth the proposed amendment is as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of Incorporation be amended to increase the authorized number of shares of Common Stock from 500,000,000 shares to 1,750,000,000 shares and the authorized number of shares of preferred stock to 500,000,000 shares, and in connection therewith to increase the aggregate number of authorized shares from 558,000,000 shares to 2,250,000,000 shares.
3. That to accomplish the amendment set forth in such resolution, section A of Article III of the Certificate of Incorporation, hereby is restated in full as follows:
A. Classes of Stock. This corporation is authorized to issue two classes of stock to be designated, respectively, common stock and preferred stock. The total number of shares that this corporation is authorized to issue is Two Billion Two Hundred Fifty Million (2,250,000,000). The total number of shares of common stock authorized to be issued is One Billion Seven Hundred Fifty Million (1,750,000,000), par value $0.001 per share (the "Common Stock"). The total number of shares of preferred stock authorized to be issued is Five Hundred Million (500,000,000), par value $0.001 per share (the "Preferred Stock"), of which Two Hundred Thousand (200,000) shares are designated as "Series A Preferred Stock", Twelve Million (12,000,000) shares are designated as "Series B Preferred Stock", and Forty Million (40,000,000) shares are designated as "Series C Preferred Stock".
4. That pursuant to resolutions of the board of directors of the Company, the annual meeting of stockholders was duly called and held upon notice in accordance with Section 222 of the Delaware General Corporation Law at which meeting the necessary number of shares as required by statute was voted in favor of the amendment.
5. That the foregoing amendment of the Company's Certificate of Incorporation was duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law.
6. That the amendment herein certified shall be effective as of the date of filing this Certificate of Amendment.
[signature page follows]
IN WITNESS WHEREOF, the Company has caused this Certificate of Amendment of Certificate of Incorporation to be duly executed by its authorized officer this 26th day of July, 2022.
|MULLEN AUTOMOTIVE INC.
|/s/ David Michery
|Chief Executive Officer
PERFORMANCE STOCK AWARD AGREEMENT
Part I. NOTICE OF STOCK GRANT
Participant: David Michery
Address: P.O. Box 5125 Hacienda Heights, CA 91745
On May 5, 2022, Mullen Automotive Inc. (the "Company" or "Mullen") has granted to David Michery (the "Participant") a Performance Stock Award for shares of Common Stock on the terms and subject to the conditions of this Performance Stock Award Agreement (the "Agreement"). Any capitalized term that is not defined in this Part I of the Agreement titled “Notice of Stock Grant” has the meaning assigned to such term in Part II of the Agreement titled "Terms and Conditions of Stock Grant," attached hereto as Exhibit A (the "Terms and Conditions").
|Performance Criteria and Terms of Stock Awards
Set forth below in Table I are categories of milestones (each, a "Milestone") and within each Milestone are, multiple performance tranches (each a "Tranche"), with each Tranche representing a portion of shares of Common Stock that may be issued to Participant upon achievement of a Tranche. Upon the achievement of each Tranche of one of the Milestones and subject to Participant continuing as the Chief Executive Officer as of the date of satisfaction of such Tranche and through the date the Administrator determines, approves and certifies that tzhe requisite conditions for the applicable Tranche have been satisfied (a "Certification"), the Company shall issue shares of Common Stock as specified in the Tranche. The Administrator shall provide a Certification and the shares of Common Stock shall be issued within three days of a Certification. Separate Certifications may occur on separate dates with respect to the achievement of any Tranche in a Milestone, provided that the issuance date of shares of Common Stock for such Tranche will be the date of the latest Certification for the achievement of a Tranche.
Table 1. Award and Milestone Performance Requirements.
|VEHICLE DELIVERY MILESTONES: For each vehicle delivery milestone set forth below that is satisfied within the performance period specified, the Company will issue to Participant a number of shares of Common Stock equal to 2% of Mullen's then-current total issued and outstanding shares of Common Stock: (i) Delivery of Mullen's Class One Van to customers for a pilot program under the captured fleet exemption by the end of December 2022; (ii) Procuring full USA certification and homologation for the sale and delivery of its Class One Van by end of August 2023; (iii) Full USA certification and homologation of the Dragonfly RS sports car by August 2024; (iv) Producing a drivable prototype of its Mullen 5 vehicle for consumers to test by end of October 2023; and (v) Producing a drivable prototype of its Mullen 5 RS High Performance vehicle for consumers to test by end of January 2023.
|CAPITAL BENCHMARK MILESTONES: For each $100 Million raised (a "Capital Tranche"), and subject to an aggregate maximum of raised of $1.0 Billion in equity or debt financing between the Date of Grant and the end of July 2024, the Company will issue to Participant a number of shares of Common Stock equal to 1% of Mullen's then-current total issued and outstanding shares of Common Stock as of the date a Capital Tranche is achieved. Additionally, if Mullen ("MULN") is included in the Russel Index, which serves as a leading benchmark for institutional investors, the Company will issue to Participant a number of shares of Common Stock equal to 2% of Mullen's then-current total issued and outstanding shares as of the date Mullen is approved to be included on the Russel Index.
|FEATURE MILESTONE. If Mullen enters into a supply, purchase or other agreement with a manufacturer or provider of equipment, accessory, feature or other product (collectively, "Feature") by the end of 2023 that sets Mullen or its vehicle apart from its competitors or that provides Mullen a first mover or first disclosure advantage over its competitors for the Feature, the Company will issue to Participant a number of shares of Common Stock equal to 5% of Mullen's then-current total issued and outstanding shares of Common Stock as of date the Feature milestone is achieved.
|DISTRIBUTION MILESTONE: If Mullen meets the vehicle distribution milestones set forth below by entering into a joint venture or other distribution agreement by the end of 2024, the Company will issue to Participant a number of shares of Common Stock equal to 2% of Mullen's then-current total issued and outstanding shares of Common Stock for each of the following vehicle delivery milestones achieved: (i) agreement with an established local, USA dealer or franchise network; and (ii) agreement with an established Latin American or other non-USA based dealer or franchise network.
|MULLEN AUTOMOTIVE INC
|/s/ Kerri Sadler
|Name: Kerri Sadler
|Title: Chief Financial Officer
|Agreed and accepted:
|/s/ David Michery
|Name: David Michery
Part II. TERMS AND CONDITIONS OF STOCK GRANT
1. Definitions. As used herein, the following definitions shall apply to the following capitalized terms:
1.1."Administrator" means the Compensation Committee of the Board; provided that while Participant is a Director, Participant shall recuse himself from any Board approvals relating to the administration of the Agreement or this Award.
1.2."Agreement" means this Performance Stock Award Agreement between the Company and Participant evidencing the terms and conditions of the Award.
1.4 "Award" means the Stock granted pursuant to this Agreement.
1.5. "Board" means the Board of Directors of the Company.
1.6."Code" means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder shall include such section, any valid regulation or other guidance promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.
1.7. "Common Stock" or "Shares" means the common stock, $0.001 par value per share, of the Company.
1.8. "Company" means Mullen Automotive Inc., a Delaware corporation, or any successor thereto.
1.9. "Director" means a member of the Board.
1.10. "Date of Grant" means the latest date this Agreement is signed by the Company and the Participant.
1.11. "Participant" means the person named as the "Participant" in the Notice of Grant.
2. Grant of Award. The Company hereby grants to Participant named in the Notice of Grant the Award the number of Shares, as set forth in the Notice of Grant.
3. Term of Award. In the event that the Company's stockholders do not approve this Agreement within twelve (12) months following the Date of Grant, the Award automatically will be forfeited as of such date and Participant shall have no further rights to the Award or any Shares underlying the Award. In no event may the Award or any portion thereof be exercised before the Company's stockholders approve the Award, notwithstanding the achievement of any Milestone associated with the Award prior to such stockholder approval.
4. Adjustments: Dissolution of Liquidation: Merger or Change in Control.
4.1. Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Agreement (and in a manner that will not provide Participant with any greater benefit or potential benefits than intended to be made available under the Agreement, other than as may be necessary solely to reflect changes resulting from any such aforementioned event), will adjust the number, class, and exercise price of shares covered by the Award.
4.2. Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised, the Award will terminate immediately prior to the consummation of such proposed action.
5. Rights as Stockholder. Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares (which may be in book entry form) will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant (including through electronic delivery to a brokerage account). After such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.
6. Non-Transferability of Award. This Award may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Participant only by Participant.
7. Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Agreement shall be binding upon Participant and Participant's heirs, legatees, legal representatives, executors, administrators, successors and assigns. The rights and obligations of Participant under this Agreement may be assigned only with the prior written consent of the Company.
8. Administrator Authority. The Administrator will have the power and authority to construe and interpret this Agreement and to adopt such rules for the administration, interpretation and application of the Agreement as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Shares subject to the Award have vested and whether any Change in Control has occurred). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to this Agreement.
9. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents related to Awards awarded under this Agreement or future Awards that may be awarded by the Company by electronic means or request Participant's consent to participate in any equity-based compensation plan or program maintained by the Company by electronic means. Participant hereby consents to receive such documents by electronic delivery and agrees to participate in such plan or program through any on-line or electronic system established and maintained by the Company or another third party designated by the Company.
10. Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
11. Agreement Severable. In the event that any provision in this Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.
12. Modifications to the Agreement. This Agreement constitutes the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Agreement can be made only in an express written contract executed by a duly authorized officer of the Company.
13. No Waiver. Either party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this Agreement. The rights granted both parties herein are cumulative and shall not constitute a waiver of either party's right to assert all other legal remedies available to it under the circumstances.
14. No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding this Agreement, or Participant's acquisition or sale of the Shares. Participant is hereby advised to consult with Participant's own tax, legal and financial advisors regarding this Agreement before taking any action related to this Agreement.
15. Governing Law and Venue. This Agreement will be governed by the laws of the State of California, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this Award or this Agreement, the parties hereby submit to and consent to the jurisdiction of the State of California, and agree that such litigation will be conducted in the courts of Orange County, California, or the federal courts for the United States for the Northern District of California, and no other courts, where this Award is made and/or to be performed.