Exhibit 10.1

EXCHANGE AGREEMENT

THIS EXCHANGE AGREEMENT (this “Agreement”) is made as of October 14, 2022, by and between Esousa Holdings LLC, a New York limited liability company (the “Investor”) and Mullen Automotive Inc., a Delaware corporation (the “Company”).

RECITALS

WHEREAS, Mullen Technologies, Inc., a California corporation (“Mullen Technologies”), DBI Lease Buyback Servicing LLC, a Delaware limited liability company (“Original Holder”), and Drawbridge Investments, LLC, a New Jersey limited liability company (“Drawbridge”), entered into that certain Settlement, Termination, Release and Equity Purchase and Loan Agreement, dated as of July 23, 2020, as amended by that certain Amendment No. 1 to Settlement, Termination, Release and Equity Purchase and Loan Agreement, dated as of August 12, 2020, as amended by that certain Amendment No. 2 to Settlement, Termination, Release and Equity Purchase and Loan Agreement, dated as of February 15, 2021 but effective as of July 23, 2020 (the “Original Purchase Agreement”; capitalized terms used, but not defined herein, have the meanings ascribed thereto in the Original Purchase Agreement).

WHEREAS, pursuant to the Original Purchase Agreement, Mullen Technologies issued that certain Secured Convertible Promissory Note by entering into the Secured Convertible Promissory Note and Security Agreement between Mullen Technologies and Original Holder, dated as of July 23, 2020, as amended (the “Original Note”) pursuant to which the investor could elect to convert all or any portion of the then-outstanding principal balance of the Original Note into that number of shares of common stock, par value $0.001 (“Common Stock”).

WHEREAS, on November 5, 2021, Mullen completed its business combination with the Company, in accordance with the terms of the Second Amended and Restated Agreement and Plan of Merger, dated as of July 20, 2021, as amended, by and among Mullen, Mullen Acquisition, Inc. (“Merger Sub”), Mullen Automotive, and Mullen Technologies (the “Merger Agreement”), and, pursuant to the terms of the Merger Agreement, Mullen assumed all of the obligations of Mullen Technologies under the Original Note.

WHEREAS, on June 17, 2022, the Original Holder sold the Original Note, including all rights, title and interest in the outstanding principal amount of, and all unpaid interest, fees and penalties under, the Original Note, to the Investor.

WHEREAS, on June 17, 2022, the Company entered into an Amended and Restated Secured Convertible Note and Security Agreement with the Investor, which extended the maturity date of the Original Note by two years, from July 23, 2022 to July 23, 2024.

WHEREAS, on June 30, 2022, the Investor exercised its conversion rights under the Original Note, exchanging an aggregate amount of $27,619,200 of principal and interest outstanding under the Note for 28,000,000 shares of Common Stock such that after the Investor’s exercise of its conversion rights the principal of the Original Note had a remaining balance of $1,096,787.

WHEREAS, due to limitations caused by the number of authorized shares of Common Stock, the Company was unable to settle the shares of Common Stock representing the entire amount exercised under the Original Note and the Investor was issued 17,500,000 shares of Common Stock.

WHEREAS, as a result of the Company’s failure to issue the full number of shares of Common Stock issuable upon conversion of the Original Note, the Company defaulted on its obligations under the Original Note.

WHEREAS, subject to the terms and conditions and limitations set forth herein, the Investor desires to exchange its rights under the Original Note for a Secured Convertible Promissory Note and Security Agreement, in the form attached hereto as Exhibit A, in the original principal amount of $12,945,914 (the “Exchange Note”). The exchange of the Original Note for the Exchange Note pursuant to this Agreement is referred to herein as the “Exchange.”

NOW THEREFORE, in consideration of the foregoing premises and the respective representations and warranties, covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, the Company and the Investor agree as follows:

Article I: Exchange

1.1 Upon the terms and subject to the conditions herein contained, at the Closing (as defined below), pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), the Investor agrees to convey, assign and transfer all rights, title and interest in the outstanding principal amount plus accrued but unpaid interest, fees, penalties, expense or adjustments, if any, under the Original Note held by the Investor to the Company to be exchanged for the Exchange Note. Immediately following the delivery of the Exchange Note to the Holder (or its designee), all rights, title and interest in the Original Note (including, without limitation, the rights to receive, as applicable, any premium, make-whole amount, accrued and unpaid interest or dividends thereon or any shares of Common Stock) shall irrevocably and automatically and without any further action on the part of the Investor or the Company, be deemed canceled and extinguished.

1.2 Subject to the satisfaction of each of the conditions set forth in Article IV and Article V hereof (to the extent not waived in accordance therewith), the closing of the Exchange (the “Closing”) shall take place remotely immediately upon the execution of this Agreement (the date on which such Closing occurs is hereinafter referred to as the “Closing Date”).

1.3 Pending the Closing up to and through 5:00 pm (Eastern Standard Time) on October 12, 2022, the Investor shall take no action to enforce its rights under the Original Note.

Article II: Covenants, Representations and Warranties of Investor

Investor, severally and not jointly, hereby covenants as follows, and makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to the Company and all such covenants, representations and warranties shall survive the Closing.

2.1. Power and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby.

2.2. Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Investor and constitutes a legal, valid and binding obligation of such Investor, enforceable against the Investor in accordance with its terms, except that such enforcement may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally, and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”).This Agreement and the consummation of the Exchange will not materially violate, conflict with or result in a breach of or default under (i) the Investor’s organizational documents, (ii) any agreement or instrument to which the Investor is a party or by which the Investor or any of its assets are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Investor.

2.3. Title to the Original Note. The Investor is the sole legal and beneficial owner of the Original Note. The Investor has good and valid title to the Original Note, free and clear of any liens, other than restrictions on transfer under applicable securities laws. The Investor has not, in whole or in part, (a) assigned, transferred, hypothecated, pledged, exchanged, syndicated, endorsed or otherwise disposed of any of its rights to or under the Original Note, or (b) given any person or entity any transfer order, power of attorney, endorsement or other authority of any nature whatsoever with respect to the Original Note. Upon the Company’s execution and delivery of the Exchange Note pursuant to the Exchange, the Original Note shall be deemed delivered to the Company for cancellation free and clear of all liens created by the Investor.

2.4. No Reliance. The Investor is not relying, and has not relied, upon any statement, advice (whether accounting, tax, financial, legal or other), representation or warranty made by the Company or any of its affiliates or representatives, except for the representations and warranties made by the Company in this Agreement.

2.5. Tax Consequences of the Exchange. The Investor understands that the tax consequences of the Exchange will depend in part on its own tax circumstances. The Investor acknowledges that it must consult its own tax adviser about the federal, state and local tax consequences peculiar to its circumstances.

2.6. No Remuneration. Neither the Investor nor any of its affiliates, nor any person acting on behalf of or for the benefit of any of the forgoing, has paid or given, or agreed to pay or give, directly or indirectly, any commission or other remuneration (within the meaning of Section 3(a)(9) of the Securities Act and the rules and regulations of the Securities and Exchange Commission promulgated thereunder) for soliciting the Exchange, and the Investor has received no additional consideration for the Original Note other than the Common Stock being exchanged therefor.

2.7. Waiver. To the extent Investor has preemptive, participation, rights of first refusal or other similar rights, such Investor hereby waives such rights with respect to the issuance of Common Stock upon the Exchange.

2.8 Securities Matters. The Investor understands that the Exchange Note is being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Exchange Note:

(a) As of the date of this Agreement and during the 90 calendar days prior to the date of this Agreement, neither the Investor nor any Affiliate of Investor is or was an officer, director, or 10% or more shareholder of the Company;

(b) Investor has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of Investor’s investment in the Company through Investor’s acquisition of the Exchange Note. Investor is able to bear the economic risk of its investment in the Company through Investor’s acquisition of the Exchange Note for an indefinite period of time. At the present time, Investor can afford a complete loss of such investment and has no need for liquidity in such investment;

(c) Investor acknowledges that it has prior investment experience and that it recognizes and fully understands the highly speculative nature of Investor’s investment in the Company pursuant to its acquisition of the Exchange Note. Investor acknowledges that it, either alone or together with its professional advisors, has the capacity to protect its own interests in connection with this transaction;

(d) Investor represents and warrants that it was not induced to invest in the Company by any form of general solicitation or general advertising, including, but not limited to, the following: (a) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media (including via the Internet) or broadcast over the news or radio or (b) any seminar or meeting whose attendees were invited by any general solicitation or advertising; and

(e) Investor agrees that neither it nor its Affiliates, agents or representatives shall at any time engage in any short sales of, or sell put options or similar instruments with respect to, the Common Stock or any other Company’s securities.

For purposes of this Section 2.8, the term “Affiliate” means any person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control,” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have correlative meanings.

Article III: Covenants, Representations and Warranties of the Company

The Company hereby covenants as follows, and makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to Investor, and all such covenants, representations and warranties shall survive the Closing.

3.1. Power and Authorization. The Company is duly incorporated, validly existing and in good standing under the laws of its state of incorporation, and has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby.

3.2. Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except that such enforcement may be subject to the Enforceability Exceptions. This Agreement and the issuance of the Exchange Note and consummation of the Exchange will not violate, conflict with or result in a breach of or default under (a) the charter, bylaws or other organizational documents of the Company, (b) any agreement or instrument to which the Company is a party or by which the Company or any of its assets are bound, or (c) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company.

3.4. Valid and Enforceable Note. The Exchange Note to be issued pursuant to this Agreement at the Closing has been duly authorized by the Company and, upon its execution and delivery by the Company in accordance with this Agreement, will constitute a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except that such enforcement may be subject to the Enforceability Exceptions. The Common Stock to be issued pursuant to the conversion of the Exchange Note (a) has been duly authorized by the Company and, upon its issuance pursuant to the terms of the Exchange Note, will be validly issued, fully- paid and non-assessable and (b) will not, as of the date of issuance, be subject to any preemptive, participation, rights of first refusal or other similar rights, such rights, to the extent they exist, having been waived by the Investor in Section 2.7 hereby.

3.5 Securities Matters. Upon issuance in accordance herewith and subject to the representations and warranties and covenants of the Investor set forth in Section 2 having been and remaining true and correct, (i) the Exchange Note will be issued pursuant to an exemption from the registration requirements of the Securities Act under Section 3(a)(9) of the Securities Act; and (ii) upon exercise of the Exchange Note, the Company shall deliver to the Investor and the Company’s transfer agent an opinion of counsel in a form acceptable to the Investor, to the effect that the shares of Common Stock issuable upon conversion of the Exchange Note may be issued to the Investor without restrictive legends pursuant to Section 3(a)(9) of the Securities Act and Rule 144, including, without limitation, Rule 144(d)(3)(ii).

Article IV: Conditions to Company’s Obligations at Closing

The Company’s obligation to complete the Exchange and deliver the Common Stock to Investor in exchange for the Original Note shall be subject to the following conditions to the extent not waived by the Company:

4.1. Representation and Warranties. The representations and warranties made by the Investor in Article II hereof shall be true and correct in all material respects as of, and as if made on, the date of this Agreement and as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date.

4.2. Performance. Investor shall have performed in all material respects all obligations and covenants herein required to be performed by it at or prior to the Closing.

Article V: Conditions to Investor’s Obligations at Closing

Investor’s obligation to accept delivery of the Common Stock, the cancellation of the Original Note and the effects of the Exchange shall be subject to the following conditions to the extent not waived by the Investor:

5.1. Representations and Warranties. The representations and warranties made by the Company in Article III hereof shall be true and correct in all material respects as of, and as if made on, the date of this Agreement and as of the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date.

5.2. Performance. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it at or prior to the Closing.

5.3. Judgments. No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.

Article VI: Miscellaneous

6.1. Entire Agreement. This Agreement and any other documents and agreements executed in connection with this Agreement or the Exchange embody the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous oral or written agreements, representations, warranties, contracts, correspondence, conversations, memoranda and understandings between or among the parties or any of their agents, representatives or affiliates relative to such subject matter, including, without limitation, any term sheets, emails or draft documents. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Company and the Investor and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of the rights hereunder may be assigned without the prior written consent of the other parties to this Agreement, and any attempted assignment of this Agreement or any of such rights without such consent shall be void and of no effect.

6.2. Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties to this Agreement.

6.3. Governing Law. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of the State of Delaware, without reference to its choice of law rules.

6.4. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

6.7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[Signature pages follow.]

IN WITNESS WHEREOF, the undersigned has executed, or caused to be executed on its behalf by an agent there unto duly authorized, this Exchange Agreement as of the date first above written.

Signature Page to Exchange Agreement

EXHIBIT A

Exchange Note

Exhibit 10.2

SECURED CONVERTIBLE PROMISSORY NOTE AND SECURITY AGREEMENT

(MULLEN AUTOMOTIVE INC.)

Agreement

This secured Promissory Note and Security Agreement (this “Note”) is entered into pursuant to that certain Exchange Agreement of even date herewith by and among the parties hereto (the “Agreement”). For value received, MULLEN AUTOMOTIVE INC., a Delaware corporation, its affiliates, successors, and assigns (“Borrower”), hereby irrevocably and unconditionally promise to pay to the order of Esousa Holdings LLC, a New York limited liability company (together with any and all of its successors and assigns and/or any other holder of this Note, “Lender”), without offset, in immediately available funds in lawful money of the United States of America, at an address to be specified in writing by the Lender to Borrower, the principal sum of TWELVE MILLION NINE HUNDRED FORTY-FIVE THOUSAND NINE HUNDRED FOURTEEN DOLLARS ($12,945,914), together with interest on the unpaid principal balance of this Note from day to day outstanding as hereinafter provided (the “Loan”).

Section 1.           Payment and Maturity Date. Subject to the terms and conditions of this Note and the Agreement, Borrower promises to pay the entire unpaid principal amount, together with all accrued and unpaid interest due hereunder, on or before July 23, 2025 (the “Maturity Date”). The period beginning on the date hereof and continuing through the Maturity Date shall be referred to herein as the “Term.” Notwithstanding the foregoing, during the Term, Borrower will pay interest accrued on the outstanding principal balance of this Note monthly in arrears on the first Business Day (as defined below) of each calendar month, commencing on November 1, 2022 (each such date, an “Interest Payment Date”), and continuing until the Maturity Date, when the entire amount of principal and interest owing hereunder will be due and payable in full; provided, that at Borrower’s sole and absolute election, all or a portion of the interest due and payable on each Interest Payment Date may be payable in kind, with such interest amount added to, and made part of, the outstanding principal amount of the Loan on such date.

Section 2.           Interest Rate. The unpaid principal balance of this Note from day to day outstanding shall bear interest at the rate per annum beginning on the date hereof, equal to twenty eight percent (28%). Interest hereunder shall be compounded monthly, and shall be computed on the basis of a 360-day year and the actual number of days elapsed. Interest on the principal indebtedness evidenced by this Note shall accrue on the actual number of days any principal balance hereof is outstanding.

Section 3.           Prepayments. Borrower may make voluntary prepayments of the principal balance of this Note, in full at any time or in part from time to time, without premium or penalty; provided, however, that Borrower shall be required to prepay the principal balance of this Note with 50% of the net proceeds (which shall be deemed gross proceeds minus direct selling costs, expenses and commissions) received, directly or indirectly by Borrower and/or its subsidiaries from the issuance of any equity or equity-linked financing (including convertible debt), less any selling commissions, will be applied towards the outstanding amounts owed under the this Note (a “Financing”); and provided, further, that in each case, Borrower shall provide to Lender prior written notice of Borrower's: (a) intent to prepay; (b) the amount of such prepayment (including, in the case of any prepayment with the proceeds of a Financing, the aggregate gross and net proceeds of such Financing to be received by Borrower and/or its subsidiaries), and (c) the date on which the prepayment will be made. In the case of a prepayment to be made with the proceeds of a Financing, such prepayment shall be made by Borrower no later than the second Business Day following the closing of the Financing. All payments under this Note, including any prepayments, shall be made by wire transfer or check in accordance with Lender’s instructions, and shall be payable in lawful money of the United States.

Section 4.           Security Interest. Borrower hereby pledges and grants to Lender an irrevocable and continuing first-priority security interest in all of its right, title, and interest in and to the Collateral (as such term is defined below), to secure the prompt payment and performance of all of Borrower’s present and future debts, obligations, and liabilities of whatever nature to Lender, including, without limitation, all obligations of Borrower arising from or relating to this Note. Borrower hereby agrees to execute and deliver such further documentation and take such further actions as Lender may request in order to enforce and protect the aforesaid security interest, including, without limitation, one or more account control agreements by and among the Borrower, Lender and any bank where the Borrower maintains any deposit accounts that are subject to Lender’s security interest hereunder. Borrower hereby authorizes Lender to notify any account debtor on any accounts that are the subject of Lender’s security interest hereunder of the existence of Lender’s interest and further, such notices may direct that after an Event of Default, any further payments shall be made directly to Lender. Borrower authorizes Lender to collect and enforce any of the Collateral, with the proceeds to be applied to the indebtedness outstanding hereunder, without liability to Borrower in connection with any such collection or enforcement and provided Borrower shall pay costs incurred by Lender, including reasonable attorneys’ fees and costs, for such collection and enforcement. Borrower hereby authorizes Lender to perfect its security interest in the Collateral including, without limitation, filing, amending, and renewing one or more UCC-1 Financing Statements or continuation statements in respect thereof, and amendments thereto, relating to all or any part of the Collateral without the prior approval or signature of the Borrower where permitted by law and at Borrower’s expense. Without first obtaining Lender’s prior written consent and so long as any amounts under this Note or the Agreement remain owing, Borrower shall not move, sell, transfer, assign, dispose, or encumber the Collateral outside the ordinary course of Borrower’s business. Borrower shall adequately insure the Collateral for full replacement value and in conformity with industry standard practices and shall list Lender as an additional insured.

Section 5.           Collateral.

(a)  “Collateral” shall mean all of Borrower’s right, title and interest in and to all of the assets of Borrower, including without limitation, the following assets (whether now existing or hereafter arising or acquired, wherever located):

(i)  All present and future income, accounts, accounts receivable, rights to payment and all forms of consideration and obligations owing to Borrower or in which the Borrower may have any interest, however created or arising and whether or not earned by performance;

(ii)  All deposit accounts, securities, securities entitlements, securities accounts, investment property and certificates of deposit now owned or hereafter acquired;

(iii)  All other real and personal property now owned or hereafter acquired, including, and all accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located; and

(iv)  All other contract rights, intellectual property (including know-how, trade secrets, patents, copyrights, trade and service marks, licenses; issued, pending, or planned; and registered or at common law), and general intangibles now owned or hereafter acquired, including, without limitation, income tax refunds, credits, deposits, payments of insurance and rights to payment of any kind.

(b) Exclusions to Collateral. Notwithstanding the foregoing, Collateral shall not include (i) any real property owned by Borrower as of the date hereof or (ii) any hereinafter acquired real or personal property (including, without limitation, all other contract rights, intellectual property (including know-how, trade secrets, patents, copyrights, trade and service marks, licenses; issued, pending, or planned; and registered or at common law), and general intangibles) further to which the seller thereof self-finances or provides seller-backed financing.

Section 6.           Corporate Guaranty. In the event that Borrower undertakes a merger, acquisition, purchase and sale, change of control, joint venture, or reorganization, any parent, subsidiary or successor company and any of its subsidiaries shall unconditionally guaranty Borrower’s payment and performance under this Note (as this Note may be amended from time to time) as primary obligor and not merely as a surety.

Section 7.           Rights to Collateral. Lender shall have such rights and remedies with respect to the Collateral as are available under the provisions of all applicable laws, including without limitation, the Uniform Commercial Code, in addition to all other rights and remedies existing at law, in equity, or by statute, or provided in the Agreement or this Note, which may be exercised without notice to, or consent by, Borrower.

Section 8.           Conversion

(a)           Optional Conversion. Lender may by written election elect to convert all or any portion of the then-outstanding principal balance of this Note into that number of shares of the common stock of the Borrower, as applicable, equal to the number obtained by dividing the outstanding principal balance of this Note to be so converted at a 5% discount to the lowest daily volume-weighted average price in the 10 trading days prior to conversion based on the prevailing market value of shares of the common stock of Borrower as reported on the Nasdaq Capital Market (or such principle market if not traded on the Nasdaq Capital Market) at close on the date on which such Notice of Conversion is delivered to Lender (“Conversion Price”).

(b)           Conversion Process. In the event of the conversion of this Note pursuant to this Section 8: (i)  Lender agrees to surrender this Note for conversion and deliver the attached form of notice of conversion and (ii) Borrower shall, at its sole cost and reasonably promptly following such delivery (but in no event later than three business days after delivery of those items referenced in Section 8(b)(i)), issue and deliver certificates representing the requisite number of fully paid and non-assessable shares of common stock and any balance note (to the extent all amounts owing under this Note are not so converted) and shall pay to Holder cash in an amount equal to that portion of the principal balance, if any, that would otherwise convert into a fractional share of common stock pursuant to this Section 8.

(c)           Authorization of Shares. Borrower shall take all action necessary and appropriate to designate and authorize a sufficient number of shares of common stock issuable upon conversion of this Note, provided that the number of designated shares shall not be less than 28,000,000 shares. In the event that the reserved shares are insufficient to issue all of the shares underlying the conversion of this Note, Borrower shall also take all action necessary and appropriate to designate and authorize a sufficient number of shares of common stock issuable upon conversion of all convertible securities, including this Note, held by Lender.

(d)           Limitations on Conversion. Notwithstanding anything to the contrary contained herein, this Note 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 of the Borrower. To the extent the above limitation applies, the determination of whether the Note shall be convertible (vis-à-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 Note 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 of 1934, as amended, 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 a successor holder of the Note. The holders of common stock of the Borrower shall be third party beneficiaries of this paragraph and the Borrower 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 Borrower 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 Note. By written notice to the Borrower, 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 Borrower, and (ii) any such increase or decrease will apply only to such holder sending such notice and not to any other holder.

Section 9.           Events of Default. The occurrence of any one or more of the following shall constitute an “Event of Default” under this Note:

(a)           Borrower fails to pay when and as due and payable any amounts payable by Borrower to Lender under the terms of this Note and such failure is not cured within five (5) Business Days following written notice thereof from the Lender;

(b)           Borrower fails to use reasonable care to protect and preserve any Collateral or fails to keep accurate books and records with respect to the Collateral, and such failure is not reasonably cured within ten (10) Business Days following written notice thereof from the Lender;

(c)           Selling, transferring, encumbering, or suffering any material damage or loss of the Collateral outside the ordinary course of Borrower’s business;

(d)           Borrower fails or neglects to perform, keep or observe any term, provision or agreement contained in the Agreement or this Note (inclusive of Borrower’s warranties, representations, and covenants), other than as provided in Section 9(a) above, and such failure is not reasonably cured within ten (10) Business Days following written notice thereof from the Lender;

(e)          Borrower becomes unable to pay its debts as they generally become due or Borrower ceases operations in the normal course; or

(f)           The institution by Borrower of proceedings to be adjudicated as bankrupt or insolvent, or the institution of bankruptcy or insolvency proceedings against it that are not dismissed within sixty (60) days of filing, or the filing by it of a petition or answer or consent seeking reorganization or release under the federal Bankruptcy Act, or any other applicable federal or state law, or the consent by it to the filing of any such petition or the appointment of a receiver, liquidator, assignee, trustee or other similar official of Borrower, or of any substantial part of its property, or the making of an assignment for the benefit of creditors (any of the foregoing, a “Bankruptcy Proceeding”), or the taking of corporate action by Borrower in furtherance of any such action.

Section 10.           Representations and Warranties. Borrower hereby represents, warrants, and covenants to Lender that:

(a)           Borrower is duly incorporated, validly existing, legally competent and has the power and authority to execute and deliver this Note and has duly executed and delivered this Note;

(b)           This Note is the legal, valid and binding obligation of Borrower, enforceable in accordance with its terms;

(c)           Borrower’s books and records with respect to the Collateral are true and accurate in all material respects;

(d)           Borrower has the present ability to perform its obligations and make the requisite payments under this Note;

(e)           During the Term, Borrower shall comply with all applicable laws; and

(f)            The execution and delivery of this Note and the borrowing evidenced hereby do not require the consent or approval of any other party (including any governmental or regulatory party), and do not violate any law, regulation or agreement to which Borrower is a party or to which Borrower or any of its assets may be subject.

Section 11.           Remedies. Upon the occurrence of an Event of Default, Lender may at any time thereafter exercise any one or more of the following rights, powers and remedies:

(a)            In the case of an Event of Default specified in clauses (a), (b) or (c) of Section 9, Lender may accelerate the Maturity Date and declare the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts payable hereunder, at once due and payable, and upon such declaration the same shall at once be due and payable; and

(b)            In the case of a Bankruptcy Proceeding, the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts payable hereunder, shall at once become and be due and payable; and

(c)            Lender may exercise any of its other rights, powers and remedies at law or in equity, including foreclosing on the Collateral in accordance with the remedies provided to a lender under the Uniform Commercial Code.

Section 12.           Remedies Cumulative. All of the rights and remedies of Lender under this Note are cumulative of each other and of any and all other rights at law or in equity, and the exercise by Lender of any one or more of such rights and remedies shall not preclude the simultaneous or later exercise by Lender of any or all such other rights and remedies. No single or partial exercise of any right or remedy shall exhaust it or preclude any other or further exercise thereof, and every right and remedy may be exercised at any time and from time to time. No failure by Lender to exercise, nor delay in exercising, any right or remedy shall operate as a waiver of such right or remedy or as a waiver of any Event of Default.

Section 13.           Commitment Amount. For the avoidance of doubt, in accordance with Securities Purchase Agreement, dated as of June 7, 2022, by and between Mullen Automotive and the buyers listed on the signature pages thereto (the “Series D Preferred Agreement”), in the event there is a Fundamental Transaction as defined in the “Warrants” issued in connection with the Series D Preferred Agreement, the Commitment Amount referenced in Section 8(b) of the Series D Preferred Agreement shall be immediately due.

Section 14.           Notices. All notices or elections required or permitted under this Note will be in writing and will be delivered in person, by facsimile, electronic mail or equivalent form of written telecommunication (with confirmation of delivery), or sent by certified or registered mail via the U.S. Postal service, return receipt requested, postage prepaid or by Federal Express, DHL or UPS, to the address for each party set forth on the signature page to the Agreement or such other address as a party may designate in a written notice served upon the other party in the manner provided for herein. All notices required or permitted hereunder will be deemed duly given and received (a) on the date received, if personally delivered or sent by facsimile or electronic mail, (b) two (2) business days after being sent by Federal Express, DHL or UPS, and (c) five (5) business days after deposit with the U.S. Postal Service, if sent by registered or certified mail.

Section 15.           Costs and Expenses of Enforcement. Borrower agrees to pay to Lender on demand all costs and expenses incurred by Lender in seeking to collect this Note or enforce or collect upon any of the Collateral, including court costs and reasonable attorneys' fees and expenses, whether or not suit is filed hereon, or whether in connection with bankruptcy, insolvency or appeal.

Section 16.           Service of Process. Borrower hereby consents to process being served in any suit, action, or proceeding instituted in connection with this Note by the mailing of a copy thereof by certified mail, postage prepaid, return receipt requested, to Borrower. Borrower irrevocably agrees that such service shall be deemed to be service of process upon Borrower in any such suit, action, or proceeding. Nothing in this Note shall affect the right of Lender to serve process in any manner otherwise permitted by law, and nothing in this Note will limit the right of Lender otherwise to bring proceedings against Borrower in the courts of any jurisdiction or jurisdictions.

Section 17.           Heirs, Successors and Assigns. The terms of this Note shall bind and inure to the benefit of the heirs, devisees, representatives, successors and permitted assigns of the parties. Borrower may not assign or transfer its rights or obligations hereunder without the prior written consent of Lender. Lender may freely assign all or a portion of this Note.

Section 18.           General Provisions Time is of the essence with respect to Borrower's obligations under this Note. Borrower hereby (a) waives demand, presentment for payment, notice of dishonor and of nonpayment, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices (except any notices which are specifically required by this Note), filing of suit and diligence in collecting this Note, and (b) consents to any extensions or postponements of time of payment of this Note for any period or periods of time and to any partial payments, before or after maturity, and to any other indulgences with respect hereto, without notice thereof to any of them. A determination that any provision of this Note is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of this Note to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances. This Note may not be amended except in a writing specifically intended for such purpose and executed by the party against whom enforcement of the amendment is sought. Captions and headings in this Note are for convenience only and shall be disregarded in construing it. This Note and its validity, enforcement and interpretation shall be governed by and construed in accordance with the laws of the State of New York (without regard to any principles of conflicts of laws) and applicable United States federal law. Whenever a time of day is referred to herein, unless otherwise specified such time shall be the local time of the place where payment of this Note is to be made. The term “Business Day” shall mean a day on which Lender is open for the conduct of substantially all of its business at its office in the city in which this Note is payable (excluding Saturdays and Sundays). The words “include” and “including” shall be interpreted as if followed by the words “without limitation.”

Section 19.           Mandatory Binding Arbitration; Consent to Jurisdiction. Except as set forth in this Section 19, the sole remedy for any claim, controversy or other dispute between or among the parties, or any of them, regarding any matter relating to this Note or any breach or interpretation of this Note (each a “Dispute”), shall be settled and resolved by binding arbitration in New York, New York, before a panel of three arbitrators at Judicial Arbitration and Mediation Services, Inc. (“JAMS”). Each party shall select one arbitrator and those two arbitrators together shall select the third arbitrator. The arbitration shall be conducted in accordance with JAMS’s rules and procedures, including JAMS’s Comprehensive Arbitration Rules and Procedures, except as expressly modified by this paragraph. In reaching a decision on any Dispute, the arbitrators shall be bound by the provisions of this Note and by the law that the parties have selected to govern the enforcement and interpretation of this Note. The arbitrators shall be required to render their decision in writing. The arbitrators‘ decision on the Dispute shall be a final and binding determination, and such decision may be confirmed and shall be fully enforceable as an arbitration award in any court having jurisdiction and venue over the parties. The arbitrators shall have exclusive jurisdiction to determine any questions of arbitrability and any such question shall be governed by the New York civil practice laws and rules. The arbitrators shall also award the prevailing party or parties such party’s or parties’ reasonable attorneys’ fees and litigation expenses in accordance with Section 20 below, and shall order the non-prevailing party or parties to pay the prevailing party’s or parties’ arbitrator’s fees and expenses as part of the arbitration award. For such purpose, the arbitrators shall determine the prevailing party or parties. Each party agrees to accept service of process for all arbitration proceedings in accordance with JAMS’s rules. Nothing in this paragraph shall prevent any party from (a) seeking and obtaining injunctive or other equitable relief through an action in court; (b) joining any party as a defendant in any action brought by or against a third party; (c) bringing an action in court to effect any attachment or garnishment; or (d) bringing an action in court to compel arbitration as required by this paragraph. The parties agree that in the event the arbitrators decide that a Dispute is not subject to arbitration, all actions or proceedings arising directly or indirectly from this Note shall be litigated in courts having a situs within New York County, New York, and hereby consent to the jurisdiction of any federal court in which such an action is commenced that is located in New York County, New York and agree not to disturb such choice of forum.

Section 20.           Attorneys’ Fees. If an action (including arbitration) is brought to interpret, apply or enforce any of the terms of this Note, or because of a party’s breach of any provision of this Note, the losing party shall pay the prevailing party’s or parties’ attorneys’ fees, costs and expenses, court costs and other costs of action incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment. In addition to the foregoing award of attorneys’ fees, the prevailing party or parties shall be entitled to such party’s or parties’ attorneys’ fees incurred in any post-judgment proceeding to enforce any award or judgment arising out of an action in connection with this Note.

Section 21.           No Usury. It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to comply with applicable state law or applicable United States federal law (to the extent that it permits Lender to contract for, charge, take, reserve, or receive a greater amount of interest than under state law), including but not limited to pursuant to New York General Obligations Law § 5-501(6)(a) and (6)(b), and that this Section 21 shall control every other covenant and agreement in this Note. If applicable state or federal law should at any time be judicially interpreted so as to render usurious any amount called for under this Note, or contracted for, charged, taken, reserved, or received with respect to the Loan, or if Lender's exercise of the option to accelerate the Maturity Date, or if any prepayment by Borrower results in Borrower having paid any interest in excess of that permitted by applicable law, then it is Lender's express intent that all excess amounts theretofore collected by Lender shall be credited on the principal balance of this Note, and the provisions of this Note shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new documents, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder or thereunder. All sums paid or agreed to be paid to Lender for the use or forbearance of the Loan shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated Term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the maximum lawful rate from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

[Remainder of page intentionally left blank]

Intending to be bound, the authorized representatives of Borrower and Lender have duly executed this Note as of the date first above written.

FORM OF NOTICE OF CONVERSION OF SECURED CONVERTIBLE PROMISSORY NOTE

(To be executed only upon conversion 

of the Secured Convertible Promissory Note in whole or in part)

To Mullen Automotive Inc.

The undersigned registered holder of the accompanying Secured Convertible Promissory Note, hereby gives notice of its election to convert _______________________ Dollars of the Note into Common Stock at the Conversion Price ($____) of shares of the common stock of Mullen Automotive Inc. during the three consecutive trading days prior to the date of conversion). The undersigned requests that the certificates for such shares of Common Stock (and, if applicable, a new note evidencing the balance of the unconverted portion of the Note) be issued in the name of, and delivered to, , whose address is ____________________________________________________________________.

Dated: ______________________________