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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
| Date of Report (Date of earliest event reported): |
January 25, 2023 |
|
MULLEN AUTOMOTIVE INC.
_____________________________________________________________
(Exact name of registrant as specified in its charter)
| Delaware |
001-34887 |
86-3289406 |
(State or other jurisdiction of
incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1405 Pioneer Street, Brea, California 92821
(Address, including
zip code, of principal executive offices)
| Registrant’s telephone number, including area code |
(714) 613-1900 |
|
(Former name or former address, if changed since
last report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.
below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
|
| Title of each class |
Trading symbol(s) |
Name of each exchange on which registered |
| Common Stock, par value $0.001 |
MULN |
The Nasdaq Stock Market, LLC (Nasdaq Capital Market) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
| Item 3.03 | Material Modification to Rights of Security Holders. |
The disclosure required by this Item is included
in Item 5.03 of this Current Report on Form 8-K and is incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Cancellation of Certificate of Designation of Series AA Preferred
Stock
As reported in the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on November 14, 2022,
Mullen Automotive Inc. (the “Company”) filed, on November 14, 2022, a certificate of designation with the Secretary
of State of the State of Delaware that designated the rights, preferences, privileges and restrictions of one share of Series AA
Preferred Stock (the “Series AA Certificate of Designation”). On January 19, 2023, the Series AA Preferred
Stock by its terms was automatically redeemed, as described in the Company’s definitive Proxy Statement filed with the SEC on November 25,
2022 and Amendments to the Company’s definitive Proxy Statement filed with the SEC on December 16, 2022 and January 13,
2023 (collectively, the “Proxy Statement”). Pursuant to the terms of the Series AA Certificate of Designation,
upon redemption, the share of Series AA Preferred Stock redeemed was automatically retired and restored to the status of an authorized
but unissued share of preferred stock, par value $0.001 per share (“Preferred Stock”), of the Company.
On January 30, 2023,
the Company filed a certificate of cancellation (the “Certificate of Cancellation”) with the Secretary of State
of the State of Delaware, effective as of the time of filing, cancelling the Series AA Certificate of Designation, and thereby eliminating
all Series AA Preferred Stock. The foregoing description is qualified in its entirety by the full text of the Certificate of Cancellation,
which is filed as Exhibit 3.1 to this Current Report on Form 8-K, and is incorporated herein by reference.
Amendment to Second Amended and Restated Certificate of Incorporation
On January 25, 2023,
at the Special Meeting (as defined below), the Company’s stockholders approved an amendment (the “Amendment”)
to Section A of Article III of the Company’s Second Amended and Restated Certificate of Incorporation (the “Certificate
of Incorporation”) to increase the number of shares of authorized common stock, par value $0.001 per share (“Common
Stock”), of the Company from 1,750,000,000 shares to 5,000,000,000 shares, with a corresponding increase in the Company’s
total authorized capital stock, which includes Common Stock and Preferred Stock, from 2,250,000,000 shares to 5,500,000,000 shares.
On January 30, 2023,
the Company filed a Certificate of Amendment to the Company’s Certificate of Incorporation with the Secretary of State of the State
of Delaware implementing the Amendment. The foregoing description is qualified in its entirety by the full text of the Certificate of
Amendment, which is filed as Exhibit 3.2 to this Current Report on Form 8-K, and is incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
As previously reported in
the Company’s Current Report on Form 8-K filed with the SEC on December 23, 2022, the Company convened its Special Meeting
of Stockholders on December 23, 2022 (the “Special Meeting”), which was adjourned and reconvened on January 19,
2023. As previously reported in the Company’s Current Report on Form 8-K filed with the SEC on January 23, 2023, the Company
reconvened the Special Meeting on January 19, 2023, which was partially adjourned to January 25, 2023 solely with respect to
the voting on Proposal No. 2, the Authorized Share Increase Proposal, as described in the Proxy Statement.
As of November 21, 2022,
the record date of the Special Meeting, there were 1,659,097,754 shares of Common Stock, 1,925 shares of Series A Preferred Stock,
zero shares of Series B Preferred Stock, and 1,211,757 shares of Series C Preferred Stock entitled to vote at the Special Meeting.
Present in person (virtually via live audiocast) or by proxy at the Special Meeting were more than 33-1/3 percent of the outstanding capital
stock entitled to vote at the Special Meeting, which constituted a quorum. The vote required for Proposal No. 2 is described in the
Proxy Statement.
At the Special Meeting reconvened
on January 25, 2023, the stockholders of the Company entitled to vote thereon approved Proposal No.2, an amendment to the Company’s
Second Amended and Restated Certificate of Incorporation, to increase the aggregate number of shares of Common Stock that the Company
is authorized to issue from One Billion Seven Hundred Fifty Million (1,750,000,000) to Five Billion (5,000,000,000) was approved by a
vote of stockholders as follows:
The shares of Common Stock,
entitled to vote thereon, voting as a separate class were as follows:
| Votes For | |
Votes Against | |
Abstentions | |
Broker Non-Votes |
| 833,618,762 | |
278,887,857 | |
7,198,940 | |
- |
The shares of
Common Stock, Series A Preferred Stock (each share being entitled to 1,000 votes), Series B Preferred Stock (voting on an as-converted
to Common Stock basis), and Series C Preferred Stock (voting on an as-converted to Common Stock basis), entitled to vote thereon,
all voting together were as follows:
| Votes For | |
Votes Against | |
Abstentions | |
Broker Non-Votes |
| 836,690,061 | |
278,894,857 | |
7,198,940 | |
- |
The voting results for
Proposals No. 1, 4 and 5, the Reverse Stock Split Proposal, the Nasdaq Listing Rule 5635(d) Proposal, and the Adjournment
Proposal, respectively, were reported in the Company’s Current Reports on Form 8-K filed with the SEC on
December 23, 2022 and January 23, 2023. Proposal No. 3, the Reincorporation Proposal, was withdrawn from stockholder
consideration, as described in the Amendment to the Proxy Statement filed with the SEC on December 16, 2022. No other matters
were considered or voted upon at the Special Meeting.
| Item 7.01 | Regulation FD Disclosure. |
On January 25, 2023,
the Company issued a press release announcing the voting results of the Special Meeting. A copy of the press release is furnished herewith
as Exhibit 99.1, and is incorporated herein by reference.
The
information included in this Item 7.01 and Exhibit 99.1 of this Current Report on Form 8-K is not deemed to be “filed”
for purposes of Section 18 of the Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the
liabilities of that section, nor shall this item and Exhibit 99.1 be incorporated by reference into the Company’s filings under
the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such future filing.
As the Company previously
disclosed in its Current Report on Form 8-K filed with the SEC on January 13, 2023, the Company filed a
validation proceeding with the Delaware Court of Chancery (the “Court of Chancery”) pursuant to Section 205 of
the Delaware General Corporation Law (“Section 205”). Section 205 permits the Court of Chancery, in its discretion,
to ratify and validate potentially defective acts or failures of authorization. On January 25, 2023, the Court of Chancery
issued an order pursuant to Section 205 validating and declaring effective, as of the time each act was originally taken, the
amendment to the Company’s Second Amended and Restated Certificate of Incorporation filed with the Office of the Secretary of State
of the State of Delaware on July 26, 2022 (the “2022 Amendment”), and shares of Common Stock and Preferred Stock,
including securities exercisable for, convertible into or settleable in Common Stock, that were issued by the Company in reliance on the
2022 Amendment. The 2022 Amendment increased the number of shares of Common Stock authorized for issuance from 500,000,000 share to a
total of 1,750,000,000 shares of Common Stock, and increased the number of shares of Preferred Stock authorized for issuance from 58,000,000
shares to a total of 500,000,000 shares of Preferred Stock, with a corresponding increase in the total authorized capital stock, which
includes Common Stock and Preferred Stock, from 558,000,000 shares to 2,250,000,000 shares.
As the Company previously
has disclosed, a putative stockholder class action was filed in the Court of Chancery, styled as Robbins v. Michery, et al.,
C.A. No. 2022-1131-LWW (the “Robbins Action”). On December 13, 2022, a second putative stockholder class
action was filed in the Court of Chancery, styled as Foley v. Michery, et al., C.A. No. 2022-1147-LWW (the “Foley Action”
and, together with the Robbins Action, the “Stockholder Actions”). The plaintiffs in the Stockholder
Actions filed complaints alleging, among other things, that the number of shares of Common Stock issued and outstanding as of the record
date (the “Annual Meeting Record Date”) for the Annual Meeting of stockholders held on July 26, 2022 (the “2022
Annual Meeting”) was 477,510,822 and that, based on this eligible share total, a majority of shares of Common Stock, when considered
separately as a class, did not vote in favor of the increase in authorized shares at the 2022 Annual Meeting. On December 16, 2022,
the Court of Chancery issued a status quo order preventing the Company and the defendants in the Stockholder Actions from purporting to
act as a result of any vote of shares at the Company’s Special Meeting, pending final disposition of the Stockholder Actions (the
“Status Quo Order”). On January 25, 2023, the Court of Chancery entered an order vacating the Status Quo Order.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto
duly authorized.
| |
MULLEN AUTOMOTIVE INC. |
| |
|
| |
|
|
| Date: January 30, 2023 |
By: |
/s/ David Michery |
| |
|
David Michery |
| |
|
Chief Executive Officer |
Exhibit 3.1
CANCELLATION OF
CERTIFICATE OF DESIGNATION
OF PREFERENCES, RIGHTS AND LIMITATIONS
OF
MULLEN AUTOMOTIVE
INC.
SERIES AA PREFERRED
STOCK
PURSUANT TO SECTION
151(g)
OF THE
GENERAL CORPORATION
LAW OF THE STATE OF DELAWARE
The
undersigned, David Michery, being the Chief Executive Officer of MULLEN AUTOMOTIVE INC., a Delaware corporation (the “Company”),
does hereby certify that, pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “DGCL”),
the following resolution was duly adopted by the Board of Directors of the Company (the “Board”) on January 23, 2023,
and, pursuant to authority conferred upon the Board by the provisions of the Company’s certificate of incorporation, as amended
and in effect (the “Certificate of Incorporation”), the Board adopted resolutions by unanimous written consent in
accordance with Section 141 of the DGCL.
WHEREAS,
on November 14, 2022, the Company filed with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”)
a Certificate of Designation of Preferences, Rights and Limitations of Series AA preferred stock (the "Certificate of Designation"),
par value $0.001 per share (the "Series AA Preferred Stock"), and issued one (1) share of Series AA Preferred Stock,
which share represents all of the issued and outstanding Series AA Preferred Stock; and
WHEREAS,
on January 19, 2023, pursuant to Section 6.3 of the Certificate of Designation, the outstanding share of Series AA Preferred Stock was
automatically retired and restored to the status of an authorized but unissued share of preferred stock, par value $0.001 per share,
of the Company; and
WHEREAS,
the Board has determined it is advisable and in the best interests of the Company and its stockholders to retire, eliminate and cancel
the Certificate of Designation.
NOW,
THEREFORE, BE IT RESOLVED, that the Board hereby cancels the Certificate of Designation and retires and eliminates all Series AA
Preferred Stock.
RESOLVED
FURTHER, that the appropriate officers of the Company are hereby authorized, directed and empowered to execute and cause to be filed
on behalf of the Company, a certificate of cancellation of the Certificate of Designation with the Delaware Secretary of State (the “Certificate
of Cancellation”).
RESOLVED
FURTHER, that the Board shall provide the Secretary of the Company with a copy of the Certificate of Cancellation certified by the
Delaware Secretary of State to be inserted in the corporate minute book.
RESOLVED
FURTHER, that the officers of the Company, and any of them, be, and they hereby are, authorized, empowered and directed for and on
behalf of the Company and in its name to execute, deliver and cause the performance of all such further documents and to take all such
further actions as such officers, or any of them, may in their discretion deem necessary, appropriate or advisable in order to carry
out and perform the intent of the foregoing resolutions, the execution and delivery of such documents, and the taking of any such action
to conclusively evidence the authorization thereof by the Company.
[Remainder
of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
this Cancellation of Certificate of Designation of Preferences, Rights and Limitations of Mullen Automotive Inc. Series AA Preferred
Stock has been executed by a duly authorized officer of the Company on this 30th day of January, 2023.
| | By: |
/s/
David Michery |
| | Name: |
David Michery |
| | Title: |
Chief Executive
Officer |
Exhibit 3.2
CERTIFICATE
OF AMENDMENT
OF
SECOND
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MULLEN
AUTOMOTIVE INC.
(a
Delaware corporation)
MULLEN
AUTOMOTIVE INC., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”),
hereby certifies as follows:
FIRST:
The name of the Corporation is Mullen Automotive Inc. The original Certificate of Incorporation of the Corporation was filed on October
2, 2012. The Second Amended and Restated Certificate of Incorporation of the Corporation was filed on November 5, 2021 and amended on
March 8, 2022 and July 26, 2022 (collectively, the “Current Certificate”).
SECOND:
Pursuant to Section 242(b) of the Delaware General Corporation Law (the “DGCL”)
the Board of Directors of the Corporation has duly adopted by unanimous written consent and the outstanding stock entitled to vote thereon
has approved at a special meeting of stockholders duly called and held in accordance with Section 222 of the DGCL the amendment to the
Current Certificate set forth in this Certificate of Amendment.
THIRD:
Pursuant to Section 242 of the DGCL, the Section A of Article III of the Current Certificate is hereby amended and restated as follows:
A.
Classes of Stock. This corporation is authorized to issue two classes of stock to be designated, respectively, common stock and
preferred stock. The total number of shares that this corporation is authorized to issue is Five Billion Five Hundred Million (5,500,000,000).
The total number of shares of common stock authorized to be issued is Five Billion (5,000,000,000), par value $0.001 per share (the “Common
Stock”). The total number of shares of preferred stock authorized to be issued is Five Hundred Million (500,000,000), par value
$0.001 per share (the “Preferred Stock”), of which Two Hundred Thousand (200,000) shares are designated as “Series
A Preferred Stock”, Twelve Million (12,000,000) shares are designated as “Series B Preferred Stock”, Forty Million
(40,000,000) shares are designated as “Series C Preferred Stock”, and Four Hundred Thirty-Seven Million Five Hundred Thousand
One (437,500,001) shares are designated as “Series D Preferred Stock.”
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its duly authorized officer this 30th day of
January, 2023, and the foregoing facts stated herein are true and correct.
| |
By: |
/s/
David Michery |
| |
Name: |
David Michery |
| |
Title: |
Chief Executive
Officer, President and Chairman of the Board |
Exhibit 99.1
Mullen Announces Result of Special
Meeting of Shareholders
Shareholders approve all proxy related
proposals: company has no plans at current time to effect a reverse stock split
BREA, Calif., Jan. 25, 2023 (GLOBE NEWSWIRE)
-- via InvestorWire -- Mullen Automotive, Inc. (NASDAQ: MULN) (“Mullen” or the “Company”), an
emerging electric vehicle (“EV”) manufacturer, announces today after its reconvened Special Meeting of Stockholders, that
all proxy proposals have been approved.
The company has no plans at the current
time to effect a reverse split. The Company has until March 6, 2023 to meet the Nasdaq minimum bid requirement of $1.00.
If the share price of the Company’s stock falls short of the said requirement, the Company intends to seek an extension from
NASDAQ to meet the required threshold. If such extension is granted, compliance of the minimum $1.00 stock share threshold requirement
may be extended for a further 180 days until approximately September 6, 2023. If the Company still falls short of the minimum bid requirement,
it will effect a reverse stock split at that time to maintain its Nasdaq listing compliance.
Mullen is also a member of the Russell
2000 Index through June of 2023, which requires a minimum stock price of $1.00 for inclusion. The Russell Index will rebalance
in June of 2023, at which time, if the share price of the Company’s stock falls short of the minimum $1.00 threshold required,
Mullen will evaluate if it is in the best interest of shareholders to initiate a reverse stock split for continued inclusion in the Russell
2000 index.
Additional details can be found on the
Company’s recently filed SEC Form 8-K and subsequent 8-K filed post Special Meeting of Shareholders Jan. 25, 2023.
About
Mullen
Mullen Automotive (NASDAQ: MULN) is
a Southern California-based automotive company building the next generation of electric vehicles (“EVs”) that will be manufactured
in its two United States-based assembly plants. Mullen's EV development portfolio includes the Mullen FIVE EV Crossover, Mullen I-GO
Commercial Urban Delivery EV, Mullen Commercial Class 1-3 EVs and Bollinger Motors, which features both the B1 and B2 electric SUV trucks
and Class 4-6 commercial offerings. On Sept. 7, 2022, Bollinger Motors became a majority-owned EV truck company of Mullen Automotive,
and on Dec. 1, 2022, Mullen closed on the acquisition of all of Electric Last Mile Solutions' (“ELMS”) assets, including
all IP and a 650,000-square-foot plant in Mishawaka, Indiana.
To learn more about the Company, visit www.MullenUSA.com.
Forward-Looking
Statements
Certain statements in this press release
that are not historical facts are forward-looking statements within the meaning of Section 27A of the Securities Exchange Act of 1934,
as amended. Any statements contained in this press release that are not statements of historical fact may be deemed forward-looking statements.
Words such as "continue," "will," "may," "could," "should," "expect," "expected,"
"plans," "intend," "anticipate," "believe," "estimate," "predict," "potential"
and similar expressions are intended to identify such forward-looking statements. All forward-looking statements involve significant
risks and uncertainties that could cause actual results to differ materially from those expressed or implied in the forward-looking statements,
many of which are generally outside the control of Mullen and are difficult to predict. Examples of such risks and uncertainties include
but are not limited to how Mullen’s stock will perform, whether the Company will be able to regain compliance with the Nasdaq and
Russell Index minimum $1.00 share price thresholds and whether the Company will be successful in securing NASDAQ approval to extend the
time period for it to regain compliance with the minimum bid threshold. Additional examples of such risks and uncertainties include
but are not limited to: (i) Mullen’s ability (or inability) to obtain additional financing in sufficient amounts or on acceptable
terms when needed; (ii) Mullen's ability to maintain existing, and secure additional, contracts with manufacturers, parts and other service
providers relating to its business; (iii) Mullen’s ability to successfully expand in existing markets and enter new markets; (iv)
Mullen’s ability to successfully manage and integrate any acquisitions of businesses, solutions or technologies; (v) unanticipated
operating costs, transaction costs and actual or contingent liabilities; (vi) the ability to attract and retain qualified employees and
key personnel; (vii) adverse effects of increased competition on Mullen’s business; (viii) changes in government licensing and
regulation that may adversely affect Mullen’s business; (ix) the risk that changes in consumer behavior could adversely affect
Mullen’s business; (x) Mullen’s ability to protect its intellectual property; and (xi) local, industry and general business
and economic conditions. Additional factors that could cause actual results to differ materially from those expressed or implied in the
forward-looking statements can be found in the most recent annual report on Form 10-K, quarterly reports on Form 10-Q and current reports
on Form 8-K filed by Mullen with the Securities and Exchange Commission. Mullen anticipates that subsequent events and developments may
cause its plans, intentions and expectations to change. Mullen assumes no obligation, and it specifically disclaims any intention or
obligation, to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as expressly
required by law. Forward-looking statements speak only as of the date they are made and should not be relied upon as representing Mullen’s
plans and expectations as of any subsequent date.
Contact:
Mullen Automotive, Inc.
+1 (714) 613-1900
www.MullenUSA.com
Corporate
Communications:
InvestorBrandNetwork (IBN)
Los Angeles, California
www.InvestorBrandNetwork.com
310.299.1717 Office
Editor@InvestorBrandNetwork.com