Exhibit
4.1(c)
MULLEN
AUTOMOTIVE INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES D CONVERTIBLE PREFERRED STOCK
PURSUANT
TO SECTION 151 OF THE
DELAWARE
GENERAL CORPORATION LAW
The undersigned, David Michery,
in accordance with the provisions of Section 103 of the Delaware General Corporation Law (the “DGCL”), hereby certifies that:
1. He
is the Chief Executive Officer and Secretary of Mullen Automotive Inc., a Delaware corporation (the "Corporation").
2. The
Corporation is authorized to issue 500,000,000 shares of preferred stock of which 200,000 shares are designated as “Series A Preferred
Stock,” 12,000,000 shares are designated as “Series B Preferred Stock,” and 40,000,000 shares are designated as “Series
C Preferred Stock.”.
3. In
accordance with Sections 141(c) and 151 of the DGCL, the following resolutions were duly adopted by the board of directors of the Corporation
on September 16, 2022:
WHEREAS, Article III of the
Second Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”) or Mullen Automotive
Inc., a Delaware corporation (the “Company”) provides the board of directors of the Company (the “Board”) with
the authority to classify and issue up to 500,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”),
of which 200,000 shares are designated as “Series A Preferred Stock,” 12,000,000 shares are designated as “Series B
Preferred Stock,” and 40,000,000 shares are designated as “Series C Preferred Stock”;
WHEREAS, the Board is authorized
to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences
of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any
of them; and
WHEREAS, it is the desire
of the Board, pursuant to its authority, to fix the rights, preferences, restrictions and other matters relating to a new series of the
preferred stock, the Series D Preferred Stock, which shall consist of up to 87,500,001 shares which the Company has the authority to issue.
NOW, THEREFORE, BE IT RESOLVED,
that, pursuant to the authority conferred by Article III of the Certificate of Incorporation, the Board does hereby provide for the issuance
of a new series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the
rights, preferences, restrictions and other matters relating to such series of preferred stock as set forth on Exhibit A attached
hereto; and be it further
RESOLVED, that the Board hereby
authorizes and establishes the classification and designation of 87,500,001 shares of Preferred Stock as shares of “Series D Preferred
Stock.”
EXHIBIT A
TERMS OF PREFERRED STOCK
Section 1. Designation,
Amount and Par Value. The series of preferred stock shall be designated as Series D Convertible Preferred Stock (the "Series D
Preferred Stock") and the number of shares so designated shall consist of 87,500,001 shares, having a par value of $0.001 per
share, which shall not be subject to increase without the written consent of all of the holders of the Series D Preferred Stock (each,
a "Holder" and collectively, the "Holders").
Section 2. Definitions.
For the purposes hereof, the following terms shall have the following meanings:
"Affiliate" means any
Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a
Person, as such terms are used in and construed under Rule 405 of the Securities Act.
"Beneficial Ownership Limitation"
shall have the meaning set forth in Section 6(d).
"Business Day" means
any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions
in the State of New York are authorized or required by law or other governmental action to close.
"Certificate of Incorporation"
means the Second Amended and Restated Certificate of Incorporation of the Corporation filed with the Secretary of State of the State of
Delaware on November 5, 2021, as the same may thereafter be amended from time to time.
"Closing" means the closing
of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement.
"Commission" means the
United States Securities and Exchange Commission.
"Common Stock" means
the Corporation's common stock, par value $0.001 per share, and stock of any other class of securities into which such securities may
hereafter be reclassified or changed.
"Exchange Act" means
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"GAAP" means United States
generally accepted accounting principles.
"Holder" shall have the
meaning given such term in Section 1.
"Liquidation" shall have
the meaning set forth in Section 5.
"Person" means an individual
or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase Agreement”
means the Securities Purchase Agreement dated as of June 7, 2022 between this Corporation and certain investors.
“Purchase Notice Date”
means the Trading Day on which a holder of Series D Preferred Stock receives a purchase notice pursuant to the terms of the Purchase
Agreement.
"Securities" means the
Series D Preferred Stock and the Underlying Shares.
"Securities Act" means
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Series D Conversion Price"
shall have the meaning set forth in Section 6(a).
"Series D Original Issue
Price" shall have the meaning set forth in Section 4(a).
"Trading Day" means,
as applicable, (x) with respect to all price determinations relating to the Common Stock, any day on which the Common Stock is traded
on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours
or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange
or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00
p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the holder or (y) with respect to all
determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor
thereto) is open for trading of securities.
"Trading Market" means
any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE
American the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any
successors to any of the foregoing).
"Transfer Agent" means
Continental Stock Transfer, the current transfer agent of the Corporation, with a mailing address of 1 State Street, 30th Floor, New York,
NY 10004-1561, email cstmail@continentalstock.com, and any successor transfer agent of the Corporation.
"Underlying Shares" means
the shares of Common Stock issued and issuable upon conversion of the Series D Preferred Stock.
Section 3. Dividends.
(a) From
and after the date of issuance of any share of the Series D Preferred Stock, a cumulative dividend shall accrue, whether or not
declared by the board of directors of this Corporation and whether or not there are funds legally available for the payment of
dividends, on a daily basis in arrears at the rate of 15.0% per annum on the sum of the Series D Original Issue Price (as
defined below) plus all unpaid accrued and accumulated dividends thereon. All accrued dividends on any share of the Series D
Preferred Stock shall be paid in cash only when, as and if declared by the Board out of funds legally available therefor or upon a
liquidation or redemption of the Series D Preferred Stock in accordance with the provisions of this Certificate of
Designation; provided, that to the extent not paid on the fifth (5th) calendar day after the last day of each
month (each such date, a "Series D Dividend Payment Date"), all accrued dividends on any share of the
Series D Preferred Stock shall accumulate and compound on the applicable Series D Dividend Payment Date whether or not
declared by the board of directors of this Corporation and shall remain accumulated, compounding dividends until paid pursuant
hereto or converted pursuant to this Certificate of Designation. All accrued and accumulated dividends on the shares of the
Series D Preferred Stock as accrued pursuant to this Section 3(a) shall be prior and in preference to any dividend on
any other series of Preferred Stock or the Common Stock and shall be fully declared and paid before any dividends are declared and
paid, or any other distributions or redemptions are made, on any other series of Preferred Stock or the Common Stock, other than to
declare or pay any dividend or distribution payable on the Common Stock in shares of Common Stock. This Corporation may elect to pay
dividends for any month with a paid-in-kind election ("PIK") if (i) the issuance of the shares of Common Stock
issuable further to the PIK has been registered pursuant to the Securities Act and such registration remains effective,
(ii) this Corporation is then in compliance with all listing requirements of the Nasdaq Capital Market and (iii) the
average daily trading dollar volume of this Corporation’s Common Stock for ten (10) trading days in any period of twenty
(20) consecutive trading days on the Nasdaq Capital Market is greater than Twenty Seven Million Five Hundred Thousand Dollars
($27,500,000).
(b) Any
dividends or distributions, other than dividends or distributions accruing or paid on shares of the Series D Preferred Stock pursuant
to Section 3(a), shall be distributed among all holders of Common Stock and Preferred Stock in proportion to the number of shares
of Common Stock that would be held by each such holder if all shares of preferred stock were converted to Common Stock at the then effective
conversion rate without regard to any limitations on the conversion of the Preferred Stock contained in the Certificate of Incorporation.
Section 4. Liquidation
Preference.
(a) In
the event of any Liquidation Event (as defined below), either voluntary or involuntary, the holders of Series D Preferred Stock shall
be entitled to receive, prior and in preference to any distribution of the proceeds of such Liquidation Event (the "Proceeds")
to the holders of the other series of Preferred Stock or the Common Stock by reason of their ownership thereof, an amount per share equal
to the Series D Original Price (as defined below), plus declared but unpaid dividends on such share. If, upon the occurrence of such
event, the Proceeds thus distributed among the holders of the Series D Preferred Stock shall be insufficient to permit the payment
to such holders of the full aforesaid preferential amounts, then the entire Proceeds legally available for distribution shall be distributed
ratably among the holders of the Series D Preferred Stock in proportion to the full preferential amount that each such holder is
otherwise entitled to receive under this subsection (a). For purposes of this Certificate of Designation, "Series D Original
Issue Price" shall mean for each share of the Series D Preferred Stock the lower of (i) $1.27 or (ii) the closing
price of the Common Stock on the Trading Market on the Trading Day immediately preceding the Purchase Notice Date (in each case, as adjusted
for any stock splits, stock dividends, combinations, recapitalizations or the like with respect to the Series D Preferred Stock).
Upon the completion
of the distribution required by this subsection (a), and the completion of the distribution required by Article III(B)2(a) and
Article III(B)2(b) and the first and second sentences of Article III(B)2(c) of the Certificate of Incorporation, any
remaining Proceeds available for distribution to stockholders shall be distributed among the holders of Common Stock pro rata, based on
the number of shares of Common Stock held by each (assuming full conversion of all Preferred Stock).
(b) Notwithstanding
the above, for purposes of determining the amount each holder of shares of Series D Preferred Stock is entitled to receive with respect
to a Liquidation Event, each such holder of shares of such Series D Preferred Stock shall be deemed to have converted (regardless
of whether such holder actually converted) such holder's shares of Common Stock immediately prior to the Liquidation Event (without regard
to any limitations on the conversion of the Series D Preferred Stock contained in the Certificate of Incorporation or this Certificate
of Designation) if, as a result of an actual conversion, such holder would receive, in the aggregate, an amount greater than the amount
that would be distributed to such holder if such holder did not convert such series of Series D Preferred Stock into shares of Common
Stock. If any such holder shall be deemed to have converted shares of Series D Preferred Stock into Common Stock pursuant to this
paragraph, then such holder shall not be entitled to receive any distribution that would otherwise be made to holders of Series D
Preferred Stock that have not converted (or have not been deemed to have converted) into shares of Common Stock.
(c) (i) For
purposes of this Section 4, a "Liquidation Event" shall include (A) the closing of the sale, transfer or
other disposition of all or substantially all of this Corporation's assets, (B) the consummation of the merger or consolidation
of this Corporation with or into another entity (except a merger or consolidation in which the holders of capital stock of this
Corporation immediately prior to such merger or consolidation continue to hold at least 50% of the voting power of the capital stock
of this Corporation or the surviving or acquiring entity), (C) the closing of the transfer (whether by merger, consolidation or
otherwise), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an
underwriter of this Corporation's Securities), of this Corporation's Securities if, after such closing, such person or group of
affiliated persons would hold 50% or more of the outstanding voting stock of this Corporation or (D) a liquidation, dissolution
or winding up of this Corporation; provided, however, that a transaction shall not constitute
a Liquidation Event if its sole purpose is to change the state of this Corporation's incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held this Corporation's Securities immediately prior to
such transaction. Notwithstanding the prior sentence, the sale of shares of Series D Preferred Stock in a financing transaction
shall not be deemed a "Liquidation Event." The treatment of any particular transaction or series of related transactions
as a Liquidation Event may be waived by the vote or written consent of the holders of a majority of each outstanding class or series
of Preferred Stock.
(ii) In any Liquidation
Event, if the consideration received by this Corporation is other than cash, its value will be deemed its fair market value as determined
in good faith by the Board of Directors of this Corporation. Any securities shall be valued as follows:
(A) Securities
not subject to investment letter or other similar restrictions on free marketability covered by (B) below:
(1) If
traded on a securities exchange or through the Nasdaq, the value shall be deemed to be the average of the closing prices of the securities
on such exchange or system over the twenty (20) trading day period ending three (3) trading days prior to the closing;
(2) If
actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable)
over the twenty (20) trading day period ending three (3) trading days prior to the closing; and
(3) If
there is no active public market, the value shall be the fair market value thereof, as mutually determined by the Board of Directors of
this Corporation and the holders of at least a majority of the voting power of outstanding Series D Preferred Stock.
(B) The
method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising
solely by virtue of a stockholder's status as an affiliate or former affiliate) shall be to make an appropriate discount from the market
value determined as above in (A) (1), (2) or (3) to reflect the approximate fair market value thereof, as mutually determined
by this Corporation and the holders of at least a majority of the voting power of outstanding Series D Preferred Stock.
(C) The
foregoing methods for valuing non-cash consideration to be distributed in connection with a Liquidation Event may be superseded by any
determination of such value set forth in the definitive agreements governing such Liquidation Event.
(iii) In the
event the requirements of this Section 4 are not complied with, this Corporation shall forthwith either:
(A) cause
such closing to be postponed until such time as the requirements of this Section 4 have been complied with; or
(B) cancel
such transaction, in which event the rights, preferences and privileges of the holders of the Series D Preferred Stock shall revert
to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice referred to in
subsection 4(e)(iv) hereof.
(iv) This
Corporation shall give each holder of record of Series D Preferred Stock written notice of such impending transaction not later
than twenty (20) days prior to the stockholders' meeting called to approve such transaction, or twenty (20) days prior to the
closing of such transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such
transaction. The first of such notices shall describe the material terms and conditions of the impending transaction and the
provisions of this Section 4, and this Corporation shall thereafter give such holders prompt notice of any changes. The
transaction shall in no event take place sooner than twenty (20) days after this Corporation has given the first notice provided for
herein or sooner than ten (10) days after this Corporation has given notice of any changes provided for
herein; provided, however, that such periods may be shortened upon the written consent of the
holders of Series D Preferred Stock that (i) are entitled to such notice rights or similar notice rights and
(ii) represent at least a majority of the voting power of all then outstanding shares of Series D Preferred Stock. The
holders of the outstanding Series D Preferred Stock can waive the notice requirements described in this subsection
(iv) upon the affirmative vote or written consent of the holders of at least a majority of the shares of Series D
Preferred Stock then outstanding.
Section 5. Redemption.
Subject to the conditions and other provisions of this Section 5, this Corporation shall have the right to elect to redeem, out of
funds legally available therefore, all (but not less than all) of the then outstanding shares of the Series D Preferred Stock in
accordance with the following conditions:
(a) at
any time for a price per share equal to the Series D Original Issue Price, plus all unpaid accrued and accumulated dividends on such
share (whether or not declared) (the "Series D Redemption Price"), provided: (A) the Series D
Preferred Stock has been issued and outstanding for a period of at least one (1) year, (B) the issuance of the shares of Common
Stock underlying the Series D Preferred Stock has been registered pursuant to the Securities Act and such registration remains effective,
and (C) the trading price for this Corporation's Common Stock is less than the Series D Conversion Price for twenty (20) trading
days in any period of thirty (30) consecutive trading days on the Nasdaq Capital Markets; or
(b) in
accordance with the following schedule; provided the issuance of shares of Common Stock underlying the Series D
Preferred Stock has been registered pursuant to the Securities Act and such registration remains effective:
| Year 1 |
No Redemption |
| Year 2 |
Redemption at 120% of the Series D Redemption Price |
| Year 3 |
Redemption at 115% of the Series D Redemption Price |
| Year 4 |
Redemption at 110% of the Series D Redemption Price |
| Year 5 |
Redemption at 105% of the Series D Redemption Price |
| Year 6 and thereafter |
Redemption at 100% of the Series D Redemption Price |
Any such redemption
shall occur not less than fifteen (15) days following receipt by the holders of the Series D Preferred Stock of a written election
notice (the "Series D Election Notice") from this Corporation stating this Corporation's intent to exercise this
election and the date upon which such redemption shall take effect (the "Series D Redemption Date"). Upon receipt
of a Series D Election Notice, all holders of the Series D Preferred Stock shall be deemed to have consented to have all of
their shares of the Series D Preferred Stock redeemed pursuant to this Section 5; provided, that notwithstanding
anything to the contrary contained herein, each holder of shares of Series D Preferred Stock shall have the right to elect prior
to the Series D Redemption Date to give effect to the conversion rights contained in Section 6 instead of giving effect to the
provisions contained in this Section 5 with respect to the shares of Series D Preferred Stock held by such holder.
Section 6. Conversion.
The holders of the Series D Preferred Stock shall have conversion rights as follows (the "Conversion Rights"):
(a) Right
to Convert. Each share of Series D Preferred Stock shall be convertible, at the option of the holder thereof, at any time
after the date of issuance of such share, at the office of this Corporation or any transfer agent for such stock, into such number
of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series D Original Issue Price (plus all
unpaid accrued and accumulated dividends thereon, as applicable, whether or not declared), by the Series D Conversion Price
(the "Conversion Rate"), determined as hereafter provided, in effect on the date the certificate is surrendered for
conversion. The initial "Series D Conversion Price" shall be the Series D Original Issue
Price; provided, however, that the Series D Conversion Price shall be subject to
adjustment as set forth in this Section 6. Each share of Series D Preferred Stock shall be convertible, at the option of
the holder thereof, at any time after the date of issuance of such share, at the office of this Corporation or any transfer agent
for such stock, into one (1) fully paid and nonassessable share of Common Stock (as adjusted for any stock splits, stock
dividends, combinations, recapitalizations or the like with respect to the Common Stock).
(b) Automatic
Conversion. Each share of Series D Preferred Stock shall automatically be converted into shares of Common Stock at the applicable
Conversion Rate at the time in effect immediately upon (A) the issuance of shares of Common Stock underlying the Series D Preferred
Stock being registered pursuant to the Securities Act and such registration remaining effective, (B) the trading price for this Corporation's
Common Stock being more than two times the Series D Conversion Price for twenty (20) trading days in any period of thirty (30) consecutive
trading days on the Nasdaq Capital Market, and (C) the average daily trading dollar volume of this Corporation's Common Stock during
such twenty (20) trading days is equal to or greater than Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000).
(c) Mechanics
of Conversion. Before any holder of Series D Preferred Stock shall be entitled to voluntarily convert the same into shares of
Common Stock, he or she shall surrender the certificate or certificates therefor, duly endorsed, at the office of this Corporation or
of any transfer agent for the Series D Preferred Stock, and shall give written notice to this Corporation at its principal corporate
office, of the election to convert the same and shall state therein the name or names in which the certificate or certificates for shares
of Common Stock are to be issued. This Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such
holder of Series D Preferred Stock, or to the nominee or nominees of such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of Series D Preferred Stock to be converted, and the person
or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such shares of Common Stock as of such date. If the conversion is in connection with an underwritten offering of
securities registered pursuant to the Securities Act the conversion may, at the option of any holder tendering Series D Preferred
Stock for conversion, be conditioned upon the closing with the underwriters of the sale of securities pursuant to such offering, in which
event the persons entitled to receive the Common Stock upon conversion of the Series D Preferred Stock shall not be deemed to have
converted such Series D Preferred Stock until immediately prior to the closing of such sale of securities. If the conversion is in
connection with Automatic Conversion provisions of subsection 6(b)(ii) above, such conversion shall be deemed to have been made on
the conversion date described in the stockholder consent approving such conversion, and the persons entitled to receive shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the record holders of such shares of Common Stock as of such
date.
(d) Limitations
on Conversion. Notwithstanding anything to the contrary contained in this Certificate of Designation, the Series D
Preferred Stock shall not be convertible by a holder to the extent (but only to the extent) that the holder or any of its Affiliates
would beneficially own in excess of 9.99% (the "Maximum Percentage") of the Common Stock. To the extent the above
limitation applies, the determination of whether the holder's Series D Preferred Stock shall be convertible (vis-a-vis other
convertible securities owned by the holder or any of its Affiliates) and of which such securities shall be convertible (as among all
such securities owned by the holder) shall, subject to such Maximum Percentage limitation, be determined on the basis of the first
submission to the Corporation for conversion. No prior inability to convert the Series D Preferred Stock pursuant to this
paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent
determination of convertibility. For the purposes of this paragraph, beneficial ownership and all determinations and calculations
(including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with
Section 13(d) of the Securities Exchange Act and the rules and regulations promulgated thereunder. The provisions of
this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this
paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial ownership
limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum
Percentage limitation. The limitations contained in this paragraph shall apply to any successor holder of the Series D
Preferred Stock. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Corporation may not amend
or waive this paragraph without the consent of holders of a majority of its Common Stock. For any reason at any time, upon the
written or oral request of the holder, the Corporation shall within one (1) Business Day confirm orally and in writing to the
holder the number of shares of Common Stock then outstanding, including by virtue of any prior conversion of convertible securities
into Common Stock, including, without limitation, pursuant to this Certificate of Designation or securities issued pursuant to this
Certificate of Designation. By written notice to the Corporation, any holder may increase or decrease the Maximum Percentage to any
other percentage not in excess of 9.99% specified in such notice; provided that (i) any such increase
will not be effective until the 61st day after such notice is delivered to the Corporation, and (ii) any such increase or
decrease will apply only to such holder sending such notice and not to any other holder.
(e) Conversion
Price Adjustments of Series D Preferred Stock for Certain Dilutive Issuances, Splits and Combinations. The Series D Conversion
Price shall be subject to adjustment from time to time as follows:
(i) (A) If
this Corporation shall issue, on or after the date upon which this Certificate of Designation is accepted for filing by the Secretary
of State of the State of Delaware (the "Filing Date"), any Additional Stock (as defined below) without consideration
or for a consideration per share less than the Series D Conversion Price in effect immediately prior to the issuance of such Additional
Stock, the Series D Conversion Price in effect immediately prior to each such issuance shall forthwith (except as otherwise provided
in this clause (i)) be adjusted to a price determined by multiplying the Series D Conversion Price by a fraction, the numerator of
which shall be (1) the number of shares of Common Stock Outstanding immediately prior to such issuance plus (2) the
number of shares of Common Stock that the aggregate consideration received by this Corporation for such issuance would purchase at the
then-existing Series D Conversion Price; and the denominator of which shall be the number of shares of Common Stock Outstanding immediately
prior to such issuance plus the number of shares of such Additional Stock. For purposes of this subsection 6(e)(i)(A), the term "Common
Stock Outstanding" shall mean and include the following: (1) outstanding Common Stock, (2) Common Stock issuable upon
conversion of outstanding preferred stock (without regard to any limitations on the conversion of the preferred stock contained in this
Certificate of Designation), (3) Common Stock issuable upon exercise of outstanding stock options, and (4) Common Stock issuable
upon exercise (and, in the case of warrants to purchase preferred stock, conversion) of outstanding warrants. Shares described in (1) through
(4) above shall be included whether vested or unvested, whether contingent or non-contingent and whether exercisable or not yet exercisable.
(B) No
adjustment of the Series D Conversion Price shall be made in an amount less than one cent per share, provided that
any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be either taken into account
in any subsequent adjustment made prior to three (3) years from the date of the event giving rise to the adjustment being carried
forward, or shall be made at the end of three (3) years from the date of the event giving rise to the adjustment being carried forward.
Except to the limited extent provided for in subsections (E)(3) and (E)(4), no adjustment of such Conversion Price pursuant to subsection
6(e)(i) shall have the effect of increasing the Conversion Price above the Conversion Price in effect immediately prior to such adjustment.
(C) In
the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting
any reasonable discounts, commissions or other expenses allowed, paid or incurred by this Corporation for any underwriting or otherwise
in connection with the issuance and sale thereof.
(D) In
the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash
shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors, irrespective of any accounting treatment.
(E) In
the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following
provisions shall apply for all purposes of this subsection 6(e)(i) and subsection 6(e)(ii):
(1) The
aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercisability,
including without limitation, the passage of time, but without taking into account potential antidilution adjustments) of such options
to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued
and for a consideration equal to the consideration (determined in the manner provided in subsections 6(e)(i)(C) and (e)(i)(D)), if
any, received by this Corporation upon the issuance of such options or rights plus the minimum exercise price provided in such options
or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby.
(2) The
aggregate maximum number of shares of Common Stock deliverable upon conversion of, or in exchange for (assuming the satisfaction of any
conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential
antidilution adjustments), any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe
for such convertible or exchangeable securities and subsequent conversion or exchange thereof, shall be deemed to have been issued at
the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any,
received by this Corporation for any such securities and related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if any, to be received by this Corporation (without taking
into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options
or rights (the consideration in each case to be determined in the manner provided in subsections 6(e)(i)(C) and (e)(i)(D)).
(3) In
the event of any change in the number of shares of Common Stock deliverable or in the consideration payable to this Corporation upon exercise
of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited
to, a change resulting from the antidilution provisions thereof; the Series D Conversion Price to the extent in any way affected
by or computed using such options, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be
made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.
(4) Upon
the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any
options or rights related to such convertible or exchangeable securities, the Series D Conversion Price to the extent in any
way affected by or computed using such options, rights or securities or options or rights related to such securities, shall be
recomputed to reflect the issuance of only the number of shares of Common Stock (and convertible or exchangeable securities that
remain in effect) actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities or
upon the exercise of the options or rights related to such securities.
(5) The
number of shares of Common Stock deemed issued and the consideration deemed paid therefor pursuant to subsections 6(e)(i)(E)(1) and
(2) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in either subsection 6(e)(i)(E)(3) or
(4).
(ii) "Additional
Stock" shall mean any shares of Common Stock issued (or deemed to have been issued pursuant to subsection 6(e)(i)(E)) by this
Corporation on or after the Filing Date other than:
(A) Common
Stock issued pursuant to a transaction described in subsection 4(e) hereof;
(B) Common
Stock issued to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their
services pursuant to plans or agreements approved by this Corporation's Board of Directors, provided, however,
that the total number of shares exempt pursuant to this sub-section shall not exceed 10% of the Corporation's total number of shares of
Common Stock issued and outstanding on a fully diluted basis at such time of issuance;
(C) Common
Stock issued pursuant to a Qualified Public Offering;
(D) Common
Stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the Filing Date;
(E) Common
Stock issued in connection with a bona fide business acquisition of or by this Corporation, whether by merger, consolidation, sale of
assets, sale or exchange of stock or otherwise;
(F) Common
Stock issued or deemed issued pursuant to subsection 6(e)(i)(E) as a result of a decrease in the Conversion Price of any series of
preferred stock resulting from the operation of this subsection 6(e);
(G) Common
Stock issued or deemed issued in connection with bank debt, equipment leases or similar credit facilities, provided such issuances are
for other than primarily equity financing purposes and approved by the Board of Directors; or
(H) Common
Stock issued upon conversion of the Series D Preferred Stock.
(iii) In
the event this Corporation should at any time or from time to time after the Filing Date fix a record date for the effectuation of a
split or subdivision of the outstanding shares of Common Stock without a corresponding split or subdivision of the Series D
Preferred Stock or the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in
additional shares of Common Stock or other securities or rights convertible into, or entitling the holder thereof to receive
directly or indirectly, additional shares of Common Stock (hereinafter referred to as "Common Stock Equivalents")
without payment of any consideration by such holder for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon conversion or exercise thereof), then, as of such record date (or the
date of such dividend distribution, split or subdivision if no record date is fixed), the Conversion Price of the Series D
Preferred Stock shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of each share
of such series shall be increased in proportion to such increase of the aggregate of shares of Common Stock outstanding and those
issuable with respect to such Common Stock Equivalents with the number of shares issuable with respect to Common Stock Equivalents
determined from time to time in the manner provided for deemed issuances in subsection 6(e)(i)(E).
(iv) If
the number of shares of Common Stock outstanding at any time after the Filing Date is decreased by a combination of the outstanding shares
of Common Stock, without a corresponding decrease of the Series D Preferred Stock then, following the record date of such combination,
the Series D Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion
of each share of such series shall be decreased in proportion to such decrease in outstanding shares.
(f) Other
Distributions. In the event this Corporation shall declare a distribution payable in securities of other persons, evidences of indebtedness
issued by this Corporation or other persons, assets (excluding cash dividends) or options or rights not referred to in subsection 6(e)(iii),
then, in each such case for the purpose of this subsection 6(f), the holders of the Series D Preferred Stock shall be entitled to
a proportionate share of any such distribution as though they were the holders of the number of shares of Common Stock of this Corporation
into which their shares of Series D Preferred Stock are convertible as of the record date fixed for the determination of the holders
of Common Stock of this Corporation entitled to receive such distribution without regard to any limitations on the conversion of the Series D
Preferred Stock contained in this Certificate of Designation.
(g) Recapitalizations.
If at any time or from time to time there shall be a recapitalization of the Common Stock (other than a subdivision, combination or merger
or sale of assets transaction provided for elsewhere in this Section 6) the holders of the Series D Preferred Stock shall thereafter
be entitled to receive upon conversion of the Series D Preferred Stock the number of shares of stock or other securities or property
of this Corporation or otherwise, to which a holder of Common Stock deliverable upon conversion would have been entitled on such recapitalization.
In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 6 with respect to the
rights of the holders of the Series D Preferred Stock after the recapitalization to the end that the provisions of this Section 6
(including adjustment of the Series D Conversion Price then in effect and the number of shares purchasable upon conversion of the
Series D Preferred Stock) shall be applicable after that event as nearly equivalent as may be practicable.
(h) No
Fractional Shares and Certificate as to Adjustments.
(i) No
fractional shares shall be issued upon the conversion of any share or shares of the Series D Preferred Stock and the aggregate number
of shares of Common Stock to be issued to particular stockholders, shall either, at the Corporation's option, be rounded (A) up to
the nest whole share or (b) down to the nearest whole share and the Corporation shall pay in cash the fair value of any fractional
shares as of the time when entitled to receive such fractions are determined, provided, however,
that the Corporation may not round down if the nearest whole share is less than one (1).
(ii) Upon
the occurrence of each adjustment or readjustment of the Series D Conversion Price pursuant to this Section 6, this Corporation,
at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to
each holder of Series D Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. This Corporation shall furnish or cause to be furnished to such holder a like certificate
setting forth (A) such adjustment and readjustment, (B) the Series D Conversion Price at the time in effect, and (C) the
number of shares of Common Stock and the amount, if any, of other property that at the time would be received upon the conversion of a
share of Series D Preferred Stock.
(i) Notices
of Record Date. In the event of any taking by this Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other
distribution, this Corporation shall mail to each holder of Series D Preferred Stock, at least ten (10) days prior to the
date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend,
distribution, and the amount and character of such dividend or distribution.
(j) Reservation
of Stock Issuable Upon Conversion. This Corporation shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series D Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series D
Preferred Stock (without regard to any limitations on the conversion of the Series D Preferred Stock contained in this Certificate
of Designation); and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series D Preferred Stock, in addition to such other remedies as shall be available
to the holders of such Series D Preferred Stock, this Corporation will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes,
including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment of the
Certificate of Incorporation.
(k) Notices.
Any notice required by the provisions of this Section 6 to be given to the holders of shares of Series D Preferred Stock shall
be deemed given if deposited in the United States mail, postage prepaid, and addressed to each holder of record at such holder's address
appearing on the books of this Corporation.
(l) Waiver
of Adjustment to Conversion Price. Notwithstanding anything herein to the contrary, any downward adjustment of the Series D Conversion
Price may be waived, either prospectively or retroactively or in a particular instance, by the consent or vote of all holders of the outstanding
shares of Series D Preferred Stock (with regard to the Series D Conversion Price). Any such waiver shall bind all future holders
of shares of Series D Preferred Stock.
7. Voting Rights.
Except as provided by law, the holder of each share of Series D Preferred Stock shall have no voting rights except as set forth below
in Section 8. To the extent the holder of a share of Series D Preferred Stock is entitled to vote on a matter pursuant to Section 8,
then the holder of each share of Series D Preferred Stock shall have the right to one vote for each share, and shall be entitled
to notice of such stockholders’ meeting in accordance with the bylaws of this Corporation, and shall be entitled to vote upon such
matters and in such manner as may be provided by law.
8. Protective Provisions.
(a) This
Corporation shall not consummate a Liquidation Event without first obtaining the approval (by vote or written consent, as provided by
law) of the holders of each of a majority of the then outstanding shares of Series D Preferred Stock, voting separately;
(b) This
Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority
of the then outstanding shares of Series D Preferred Stock, voting separately:
(i) authorize
or issue, or obligate itself to issue, any equity security (including any other security convertible into or exercisable for any such
equity security) having a preference over or parity with the Series D Preferred Stock with respect to dividends, liquidation, redemption
or voting;
(ii) amend
the Certificate of Incorporation or the Corporation's bylaws to adversely affect the rights, preferences and privileges of the Series D
Preferred Stock;
(iii) enter
into, or consummate the merger or consolidation of this Corporation with or into another entity, or
(iv) voluntarily
dissolve, liquidate or wind up the affairs of the Corporation or voluntarily petition for bankruptcy or assignment for the benefit of
creditors.
9. Status of Converted
Stock. In the event any shares of Series D Preferred Stock shall be converted pursuant to Section 6 hereof, the shares
so converted shall be cancelled and shall not be issuable by this Corporation. The Certificate of Incorporation of this Corporation shall
be appropriately amended to effect the corresponding reduction in this Corporation's authorized capital stock.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its authorized officer this 19th day of September, 2022.
| |
MULLEN AUTOMOTIVE INC. |
| |
|
| |
By: |
/s/ David Michery |
| |
Name: |
David Michery |
| |
Title: |
Chief Executive Officer |
Exhibit 99.3
AMENDMENT NO. 2
TO
SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO SECURITIES
PURCHASE AGREEMENT (this “Amendment”) is made and entered into effective September 19, 2022 between Mullen Automotive
Inc., a Delaware corporation (the “Company”), and the Buyers listed on the signature pages hereto (collectively, the
“Buyers” and each, a “Buyer”).Capitalized terms not defined herein shall have the same meaning as
set forth in the Securities Purchase Agreement (as defined below).
RECITALS:
A. The Company and the Buyers entered into the Securities Purchase Agreement dated as of June 7, 2022 (the “Securities Purchase
Agreement”), pursuant to which, upon the terms and subject to the conditions contained therein, the Buyers shall purchase, solely
upon the Company’s request, on the Purchase Date the Commitment Amount of shares of the Company’s Series D Preferred Stock,
par value $0.001 per share (the “Series D Preferred Stock”), and Warrants.
B. The
Company and the Buyers desire to amend the Securities Purchase Agreement to provide that the Buyers will advance to the Company that
portion of the Purchase Price equal to $35,000,000, which shall be deemed as though the Company exercised its option to issue and sell
to the Buyers that number of shares of Series D Preferred Stock equal to such portion of the Purchase Price.
C. The Company and the Buyers desire to further amend the Securities Purchase Agreement to provide that, to the extent stated in the
Purchase Notice delivered by the Company pursuant to the terms of the Securities Purchase Agreement, the Buyers shall purchase such additional
shares of Series D Preferred Stock and pay to the Company the remainder of the Purchase Price on November 3, 2022.
NOW, THEREFORE, for due
and adequate consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. The
Securities Purchase Agreement shall be amended to include a new Section 1(a) (and renumber the current Section 1(a) and Section 1(b) and
so forth), which shall read as follows:
Initial
Purchase. Subject to the satisfaction (or waiver) of the terms and conditions set forth herein, the Company shall issue and sell
to the Buyers, and Buyers shall purchase from the Company, that number of Securities with an aggregate Purchase Price equal to
Thirty-Five Million Dollars ($35,000,000) (the “Initial Purchase Amount”), and in the amounts for each Buyer set
forth on Exhibit D (the “Initial Purchase”). The Purchase Price for the Initial Purchase shall be the lower of
(i) $1.27 or (ii) the closing price of the Common Stock on the Trading Day immediately after the date on which the Initial
Registration Statement (as defined below) becomes effective. For no additional consideration, for every Purchase Share purchased by
a Buyer in the Initial Purchase, such Buyer shall receive Warrants exercisable for 185% of shares of Common Stock at an exercise
price equal to the lower of (i) $1.27 or (ii) the closing price of the Common Stock on the Trading Day immediately after the date on
which the Initial Registration Statement becomes effective. The Initial Purchase Price shall be paid on September 19, 2022 but the
issuance of shares of Series D Preferred Stock and Warrants pursuant to the Initial Purchase (the “Initial
Closing”) shall occur on the second (2nd) Trading Day immediately after the date on which the Initial
Registration Statement becomes effective. (the “Initial Closing Date”).
2. Section
1(b) of the Securities Purchase Agreement (formerly Section 1(a)) shall be amended and restated as follows:
Delivery of
Purchase Notice; Purchase of Securities. Subject to the satisfaction (or waiver) of the terms and conditions set forth herein, on
the Purchase Date (provided that if the Purchase Date is not a Trading Day, then the immediately following Trading Day shall be the Purchase
Date) the Company may, in its sole discretion, deliver a Purchase Notice to the Buyers pursuant to which the Company shall issue and sell
to the Buyers, and Buyers shall purchase from the Company, that number of Securities with an aggregate Purchase Price equal to the Commitment
Amount less the Initial Purchase Amount actually paid, and in the amounts for each Buyer as set forth on the Purchase Notice (the “Purchase”).
The Purchase Notice shall be in the form attached hereto as Exhibit B and incorporated herein by reference (the “Purchase Notice”).
The Purchase Price set forth in the Purchase Notice shall be the Market Price, subject to a floor price of $0.10 per share. For no additional
consideration, for every Purchase Share purchased by a Buyer in the Purchase, such Buyer shall receive Warrants exercisable for 110% of
shares of Common Stock at an exercise price equal to the Market Price, subject to a floor price of $0.10 per share.
3. The
Securities Purchase Agreement shall be amended to include a new Section 4(m), which shall read as follows:
Registration
of Shares After Initial Purchase. No later than September 19, 2022, the Company shall file a Registration Statement with the
Commission registering the Company’s reasonable estimate of the number of Conversion Shares and Warrants Shares issuable upon conversion
or exercise of the Securities purchased in the Initial Closing (the “Initial Registration Statement”). The Company
shall promptly notify the Buyers via facsimile or by e-mail of the effectiveness of the Initial Registration Statement on the same Trading
Day that the Company telephonically confirms effectiveness with the Commission. The Company shall keep the Initial Registration Statement
continuously effective until the date on which the Securities are no longer outstanding;
4. The
Securities Purchase Agreement shall be further amended such that references to the Closing, the Closing Date, the Purchase and the Purchase
Amount shall also be references to the Initial Closing, the Initial Closing Date, the Initial Purchase and the Initial Purchase Amount,
as appropriate:
5. The
Securities Purchase Agreement shall be further amended to include a new Section 3(ii), which shall read as follows:
(ii) WKSI Status.
As of September 19, 2022, the Company qualifies as a “well-known seasoned issuer” as that term is defined in Rule 405 under
the Securities Act.
6. Exhibit
B to the Securities Purchase Agreement shall be amended and restated as set forth in the attached Exhibit B to this Amendment.
7. Except
as modified by this Amendment, all other terms and conditions in the Securities Purchase Agreement shall remain in full force and effect
and this Amendment shall be governed by all provisions thereof.
8. This
Amendment may be executed in separate counterparts, all of which taken together shall constitute a single instrument.
9. This
Amendment shall be governed, construed and interpreted in accordance with the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
Buyers and the Company has caused its signature page to this Amendment No. 2 to Securities Purchase Agreement to the be duly executed
as of the date first written above.
| |
COMPANY: |
| |
MULLEN AUTOMOTIVE INC. |
| |
|
|
| |
By: |
/s/ David Michery |
| |
Name: |
David Michery |
| |
Title: |
Chief Executive Officer |
[Signature page to Amendment No. 2 to Securities Purchase Agreement]
IN WITNESS WHEREOF,
Buyers and the Company has caused its signature page to this Amendment No. 2 to Securities Purchase Agreement to the be duly executed
as of the date first written above.
| |
BUYER: |
| |
Esousa Holdings, LLC |
| |
|
|
| |
By: |
/s/ Michael Wachs |
| |
Name: |
Michael Wachs |
| |
Title: |
Managing Member |
| |
Acuitas Capital, LLC |
| |
|
|
| |
By: |
/s/ Terren Peizer |
| |
Name: |
Terren Peizer |
| |
Title: |
Chief Executive Officer |
| |
Davis-Rice Pty Limited |
| |
|
|
| |
By: |
/s/ Timothy Davis-Rice |
| |
Name: |
Timothy Davis-Rice |
| |
Title: |
Director |
| |
Digital Power Lending, LLC |
| |
|
|
| |
By: |
/s/ David J. Katzoff |
| |
Name: |
David J. Katzoff |
| |
Title: |
Manager |
| |
|
/s/ Jess Mogul |
| |
Name: |
Jess Mogul |
| |
|
/s/ Jim Fallon |
| |
Name: |
Jim Fallon |
| |
|
/s/ Michael Friedlander |
| |
Name: |
Michael Friedlander |
[Signature page to Amendment No. 2 to Securities Purchase Agreement]
EXHIBIT B
FORM OF PURCHASE NOTICE
TO: BUYERS LISTED BELOW
DATE: ____________________
We refer to the Securities Purchase Agreement,
dated June 7, 2022 (the "Agreement"), entered into by and between Mullen Automotive Inc. and you. Capitalized terms
defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.
We hereby give you notice that we require you to purchase the Commitment
Amount at the Purchase Price of $________ pursuant to the Agreement as set forth below:
| Name of Buyer | |
Shares of Series D
Preferred Stock1 | | |
Warrants to purchase
Common Stock2 | |
Purchase
Price | |
| Esousa Holdings, LLC | |
| | | |
| |
$ | 89,018,182.00 | |
| Acuitas Capital, LLC | |
| | | |
| |
$ | 87,272,727.00 | |
| Davis-Rice Pty Limited | |
| | | |
| |
$ | 43,636,364.00 | |
| Digital Power Lending, LLC | |
| | | |
| |
$ | 13,090,909.00 | |
| Jess Mogul | |
| | | |
| |
$ | 4,363,636.00 | |
| Jim Fallon | |
| | | |
| |
$ | 2,181,818.00 | |
| Michael Friedlander | |
| | | |
| |
$ | 436,364.00 | |
| TOTAL | |
| | | |
| |
$ | 240,000,000.00 | |
1. The terms of the Series D Preferred Stock
are set forth in the Certificate of Designation.
2. For no additional consideration,
for every Purchase Share purchased by Buyer under the terms of the Agreement Buyer shall receive Warrants exercisable for 110% of shares
of Common Stock at an exercise price of $______ per share.
The Warrants may be exercised, in whole
or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise, the Buyer may
elect to redeem the Warrants pursuant to the following formula:
Net Number = (A x B)/C
For purposes of the foregoing formula:
A= the total number of shares with respect
to which the applicable Warrant is then being exercised.
B= Black Scholes Value (as defined in
the applicable Warrant).
C= the Closing Bid Price of the Common
Stock as of two (2) Trading Days prior to the time of such exercise (as such Closing Bid Price is defined in the applicable Warrant),
but in any event not less than $0.01 (as may be adjusted for stock dividends, subdivisions, or combinations in the manner described in
the Warrant).
We certify that, as of the date hereof, the conditions set forth in
Section 7 of the Agreement are satisfied.
| MULLEN AUTOMOTIVE INC. |
|
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
EXHIBIT D
INITIAL PURCHASE AMOUNTS
| Name of Buyer | |
Shares of Series D
Preferred Stock1 | | |
Warrants to purchase
Common Stock2 | |
Purchase
Price | |
| Esousa Holdings, LLC | |
| | | |
| |
$ | 12,981,818.00 | |
| Acuitas Capital, LLC | |
| | | |
| |
$ | 12,727,273.00 | |
| Davis-Rice Pty Limited | |
| | | |
| |
$ | 6,363,636.00 | |
| Digital Power Lending, LLC | |
| | | |
| |
$ | 1,909,091.00 | |
| Jess Mogul | |
| | | |
| |
$ | 636,364.00 | |
| Jim Fallon | |
| | | |
| |
$ | 318,182.00 | |
| Michael Friedlander | |
| | | |
| |
$ | 63,636.00 | |
| TOTAL | |
| | | |
| |
$ | 35,000,000.00 | |
