| As filed with the Securities and Exchange Commission on September 14, 2022 |
Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
MULLEN AUTOMOTIVE INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
|
90-1025599
(I.R.S. Employer
Identification No.) |
1405 Pioneer Street
Brea, California 92821
(Address of principal executive offices)
(714) 613-1900
(Registrant’s telephone number, including
area code)
Mullen Automotive Inc. 2022 Equity Incentive
Plan
Performance Stock Award Agreement
(Full title of the plan)
David Michery
President and Chief Executive Officer
1405 Pioneer St
Brea, CA 92821
(714) 613-1900
(Name, address and telephone number of agent for
service)
With copies to:
| Thomas J. Poletti, Esq. |
| Katherine J. Blair, Esq. |
| Manatt, Phelps & Phillips, LLP |
| 695 Town Center Drive, 14th Floor |
| Costa Mesa, California 92626 |
| (714) 371-2501 |
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
Accelerated filer |
¨ |
| Non-accelerated filer |
x |
Smaller reporting company |
x |
| |
|
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 7(a)(2)(B) of the Securities Act. ¨
This Registration Statement shall become effective upon filing in accordance
with Section 8(a) of the Securities Act and Rule 462 under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the
information specified in this Part I of Form S-8 will be sent or given to participants in the Mullen Automotive Inc. 2022 Equity
Incentive Plan (the “Plan”) and the Performance Stock Award Agreement as specified by Rule 428 under the Securities Act
of 1933, as amended (the “Securities Act”).
Such documents are not required
to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The Registrant hereby incorporates by reference
into this Registration Statement the following documents filed by it with the Commission:
| (e) | The Company’s Current Reports on Form 8-K filed with the Commission on November 4,
2021, November 12,
2021 (as amended by a Form 8-K/A
filed with the Commission on November 19, 2021), January 24,
2022, February 28,
2022, March 10,
2022, March 31, 2022 (Two Filing), June 10, 2022, June 21, 2022, June 24, 2022, July 13, 2022,
July 27, 2022, September 8, 2022, and September 9, 2022 (Two Filings). |
All documents subsequently
filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof,
and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof
from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus
to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to
be, incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement and the prospectus.
Notwithstanding the foregoing, unless specifically stated to the contrary,
none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K, including the related
exhibits under Item 9.01, that the Registrant has furnished, or may from time to time furnish, to the Commission is, or will be, incorporated
by reference into, or otherwise included in, this Registration Statement.
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware
General Corporation Law (the “DGCL”) provides, in general, that a corporation incorporated under the laws of the State of
Delaware, as we are, may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than a derivative action by or in the right of the corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. In
the case of a derivative action, a Delaware corporation may indemnify any such person against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted
in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except
that no indemnification will be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonably entitled to indemnity for such expenses.
Article VIII of our certificate
of incorporation, as amended, states that to the fullest extent permitted by the DGCL, a director of the corporation shall not be liable
to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
Under Article IX of our
certificate of incorporation, any person who was or is made a party or is threatened to be made a party to or is in any way involved in
any threatened, pending or completed action suit or proceeding, whether civil, criminal, administrative or investigative, including any
appeal therefrom, by reason of the fact that he is or was a director or officer of ours or was serving at our request as a director or
officer of another entity or enterprise (including any subsidiary), shall be indemnified and held harmless by us to the fullest extent
permitted by Delaware Law, and we may advance all expenses incurred by such person in defense of any such proceeding prior to its final
determination. The indemnification provided in our bylaws is not exclusive of any other rights to which those seeking indemnification
may otherwise be entitled.
We maintain a general liability
insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions
in their capacities as directors or officers.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing
provisions, or otherwise, we have been advised that in the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
| Item 7. | Exemption From Registration Claimed. |
Not applicable.
Exhibit
Number |
|
Description |
| 4.1 |
|
Second Amended and Restated Certificate of Incorporation of Mullen Automotive Inc., a Delaware corporation, filed with the Secretary of State of Delaware on October 2, 2012 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the Commission on November 12, 2021) |
| 4.1(a) |
|
Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of Mullen Automotive, Inc., dated March 8, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Commission on March 10, 2022) |
| 4.1(b) |
|
Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on July 26, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on July 27, 2022) |
| 4.2 |
|
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K, filed with the Commission on October 5, 2012) |
| 4.2(a) |
|
Amendment No. 1 to the Bylaws, dated June 15, 2015 (incorporated by reference to Exhibit 3.2 of the Company’s Current Report on Form 8-K filed with the Commission on June 16, 2015) |
| 4.2(b) |
|
Amendment No. 2 to the Bylaws, dated July 10, 2015 (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the Commission on July 10, 2015) |
| 5.1 |
|
Opinion of Manatt, Phelps & Phillips LLP |
| 23.1 |
|
Consent of Independent Registered Public Accounting Firm (Daszkal Bolton LLP) |
| 23.2 |
|
Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit 5.1) |
| 24 |
|
Power of Attorney (contained on signature page hereto) |
| 99.1 |
|
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 Commission on June 24, 2022) |
| 99.2 |
|
CEO Performance Stock Award Agreement dated May 5, 2022 between Mullen Automotive Inc. and David Michery (incorporated by reference to
Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the Commission on July 27, 2022). |
| 107 |
|
Filing Fee Table |
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;
(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; and
(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 reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered herein, 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, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered herein, 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 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 Commission such indemnification
is against public policy as expressed in the Securities 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 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Brea, State of California, on the 14th day of September, 2022.
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Mullen Automotive Inc. |
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By: |
/s/ David Michery |
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Name: David Michery |
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Title: Chief Executive Officer and President |
POWER OF ATTORNEY
We, the undersigned officers and directors of
Mullen Automotive Inc., a Delaware corporation, do hereby constitute and appoint David Michery and Kerri Sadler, each of them, as his
true and lawful attorneys-in-fact and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, 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 connection therewith, as
fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the dates indicated.
| Name and Signature |
|
Title |
|
Date |
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| /s/ David Michery |
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President, Chief Executive Officer and Chairman of the Board |
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September 14, 2022 |
| David Michery |
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(Principal Executive Officer) |
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| /s/ Kerri Sadler |
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Chief Financial Officer |
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September 14, 2022 |
| Kerri Sadler |
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(Principal Financial and Accounting Officer) |
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| /s/ Mark Betor |
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Director |
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September 14, 2022 |
| Mark Betor |
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| /s/ William Miltner |
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Director |
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September 14, 2022 |
| William Miltner |
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| /s/ Jonathan New |
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Director |
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September 14, 2022 |
| Jonathan New |
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| /s/ Ignacio Novoa |
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Director |
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September 14, 2022 |
| Ignacio Novoa |
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| /s/ Kent Puckett |
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Director |
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September 14, 2022 |
| Kent Puckett |
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| /s/ Mary Winter |
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Director |
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September 14, 2022 |
| Mary Winter |
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Exhibit 5.1
September 14, 2022
Mullen Automotive Inc.
1405 Pioneer St
Brea, CA 92821
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Mullen Automotive
Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement
on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities
Act”), for the registration by the Company of an aggregate of 467,500,000 shares of common stock, par value $0.001 per share
(the “Common Stock”), of the Company (the “Shares”), consisting of (a) 167,500,000 shares
of Common Stock issuable under the Mullen Automotive Inc. 2022 Equity Incentive Plan (the “2022 Plan”), and (b) 300,000,000
shares of Common Stock reserved for issuance under the Performance Stock Award Agreement dated May 5, 2022 between the Company and
David Michery (the “Award Agreement”). This opinion is being furnished in connection with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
As
such counsel and for purposes of our opinions set forth below, we have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, resolutions, certificates and instruments of the Company and corporate records furnished to us
by the Company, certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary
or appropriate as a basis for the opinion set forth below.
In
such examination and in rendering the opinions expressed below, we have assumed, without independent investigation or verification: (i) the
genuineness of all signatures on all agreements, instruments, corporate records, certificates and other documents submitted to us, (ii) the
legal capacity and authority of all persons or entities (other than the Company) executing all agreements, instruments, corporate records,
certificates and other documents submitted to us, (iii) the authenticity and completeness of all agreements, instruments, corporate
records, certificates and other documents submitted to us as originals, (iv) that all agreements, instruments, corporate records,
certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform
to authentic originals thereof, and that such originals are authentic and complete, (v) the due authorization, execution and delivery
of all agreements, instruments, certificates and other documents by all parties thereto (other than the Company), (vi) that the
statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and
other persons on which we have relied for the purposes of this opinion set forth below are true and correct, and (vii) that the
officers and directors of the Company have properly exercised their fiduciary duties. We also have obtained from the officers of the
Company certificates as to certain factual matters necessary for the purpose of this opinion and, insofar as this opinion is based on
such matters of fact, we have relied solely on such certificates without independent investigation. We have also assumed that the Shares
will be issued and sold as described in the Registration Statement and the applicable provisions of the 2022 Plan or the Award Agreement,
as applicable. We have also assumed that upon the issuance of any Shares, the total number of shares of Common Stock issued and outstanding will not
exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Amended and Restated Certificate
of Incorporation.
2049 Century Park East, Suite 1700, Los
Angeles, California 90067 Telephone: 310.312.4000 Fax: 310.312.4224
Albany | Boston | Chicago | Los Angeles |
New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington D.C. |
Mullen Automotive Inc.
September 14, 2022
Page 2
Based
upon and subject to the foregoing qualifications, assumptions and limitations, we are of the opinion that the Shares have been duly authorized
and, when issued and delivered against payment therefor in conformity with the terms of the 2022 Plan or the Award Agreement, assuming
in each case that the individual issuance, grants or awards under the 2022 Plan or Award Agreement, as applicable, are duly authorized
by all necessary corporate action and duly issued, granted or awarded and exercised, if applicable, in accordance with the requirements
of the law and the 2022 Plan or Award Agreement, as applicable, will be validly issued, fully paid and non-assessable.
We
express no opinion as to the applicability or effect of any laws, orders or judgments of any state or other jurisdiction other than the
General Corporation Law of the State of Delaware (including the statutory provisions and all applicable provisions of the Delaware Constitution
and reported judicial decisions interpreting those laws). This opinion is expressly limited to the matters set forth above and we render
no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Shares.
We
hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and the use of our name therein
under the caption “Legal Matters.” In giving this consent, we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission adopted under the Securities
Act.
The
opinions included herein are expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise
you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
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Very truly yours, |
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/s/ Manatt, Phelps & Phillips, LLP |
2049 Century Park East, Suite 1700, Los
Angeles, California 90067 Telephone: 310.312.4000 Fax: 310.312.4224
Albany | Boston | Chicago | Los Angeles |
New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington D.C. |