0001499961
false
0001499961
2023-03-06
2023-03-06
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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): |
March 6, 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 1.01. | Entry into a Material Definitive Agreement. |
On March 2, 2023, Mullen Automotive Inc. (the
“Company”) entered into an amendment (the “Amendment”) to the Settlement
Agreement and Release (the “Settlement Agreement”), dated January 13, 2023, between the Company and Acuitas Capital
LLC (“Acuitas”), pursuant to which Acuitas irrevocably exercised its right to purchase additional shares of the Company’s
Series D Preferred Stock and warrants in an amount equal to $20,000,000 and fixed the date of such exercise as June 1, 2023. No
other terms of the Settlement Agreement were amended by the Amendment.
The foregoing description of the Amendment is
qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K
and is incorporated by reference in response to this Item 1.01.
| 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: March 6, 2023 |
By: |
/s/ David Michery |
| |
|
David Michery |
| |
|
Chief Executive Officer |
Exhibit 5.1
March 6, 2022
Mullen Automotive Inc.
1405 Pioneer Street
Brea, California 92821
Re: Prospectus Supplement
to Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Mullen Automotive
Inc., a Delaware corporation (the “Company”), in connection with the offering of 522,222,223 shares of its common stock, par
value $0.001 per share (the “Common Stock”), to be sold by a certain selling stockholder (the “Shares”) as described
in the Prospectus (as defined below), pursuant to a Registration Statement on Form S-3 (Registration Statement No. 333-269766) (the “Registration
Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Act”), the prospectus included in the Registration Statement (the “Base Prospectus”), and the
prospectus supplement, dated March 6, 2023, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act
(the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”). The Registration Statement
was filed with the Commission and became automatically effective on February 14, 2023.
In rendering the opinion set forth herein, we
have examined the originals, or photostatic or certified copies, of (i) the Company’s Amended and Restated Certificate of Incorporation,
as amended and supplemented (the “Amended and Restated Certificate of Incorporation”); (ii) the Company’s Amended and
Restated Bylaws (the “Amended and Restated Bylaws”); (iii) certain resolutions of the Board of Directors of the Company related
to the filing of the Prospectus Supplement, the authorization and issuance of the Shares and related matters, (v) the Registration Statement
and all exhibits thereto, and (vi) such other records, documents and instruments as we deemed relevant and necessary for purposes of the
opinion stated herein.
In making the foregoing examination we have assumed
the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as photostatic or certified copies, and the authenticity of the
originals of such copies. We have assumed that the number of shares of Common Stock when issued upon conversion of the Series D Preferred
Stock and upon exercise of warrants (the “Warrants”) shall, when combined with the number of authorized shares of Common Stock
outstanding or otherwise reserved for issuance, be less than the number of shares of Common Stock authorized pursuant to the Amended and
Restated Certificate of Incorporation. As to all questions of fact material to this opinion, where such facts have not been independently
established, we have relied, to the extent we have deemed reasonably appropriate, upon representations or certificates of officers of
the Company or governmental officials.
We do not express any opinion herein concerning
any law other than the General Corporation Law of the State of Delaware.
Based on the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that the Shares have been duly authorized and, when paid for and
issued pursuant to the terms of the Amended and Restated Certificate of Incorporation, the Series D Preferred Stock and the Warrants will
be validly issued, fully paid and non-assessable.
This opinion speaks only as of the date hereof.
We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or
fact, that may occur after the date of this opinion that might affect the opinions expressed therein.
We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Commission
on or about March 3, 2023, which will be incorporated by reference in the Registration Statement. We hereby also consent to the
reference to our firm under the caption “Legal Matters” in the Prospectus Supplement, which is a part of the Registration
Statement. We do not admit in providing such consent that we are included within the category of persons whose consent is required under
Section 7 of the Securities Act and the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/ McDermott Will & Emery LLP |
Exhibit 10.1
AMENDMENT TO THE SETTLEMENT AGREEMENT
This Amendment (this “Amendment”)
to that certain Settlement Agreement and Release, dated as of January 13, 2023 (the “Settlement Agreement”) is entered
into as of March 2, 2023 (the “Effective Date”), by and among (a) Mullen Automotive Inc., a Delaware corporation (the
“Company”), and (b) Acuitas Capital LLC, a Delaware limited liability company (“Acuitas”). Collectively,
the Company and Acuitas shall be referred to as the “Parties”. Capitalized terms not defined herein shall have the same meaning
as set forth in the Settlement Agreement.
RECITALS
WHEREAS, the Parties desire to amend the Settlement
Agreement to fix the date for exercise of the Settlement Additional Purchase Right.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
agreements and covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. Amendment. Effective upon the
Effective Date, Section 1 of the Settlement Agreement is hereby amended and restated in its entirety to read in full as follows:
1. Settlement by the Company. In consideration
for the settlement of the claims described herein, (a) the Company agrees to grant Acuitas the Settlement Additional Purchase Right, which
Acuitas has irrevocably agreed to exercise and purchase shares of Series D Preferred Stock on June 1, 2023 on the same terms that apply
to Additional Purchases as described in Section 4(p) of the Securities Purchase Agreement; provided, however, that, upon full payment
for such Series D Preferred Stock on June 1, 2023, Acuitas shall receive Additional Warrants exercisable for 185% of shares of Common
Stock at an exercise price equal to the closing price of the Common Stock as of May 31, 2023 and (ii) that Additional Warrants issued
pursuant the Settlement Additional Purchase Right will be in the form attached hereto as Exhibit A; and (b) Acuitas agrees to issue
to the Company a promissory note, a form of which is attached hereto as Exhibit B, which note shall have a principal amount equal
to the Settlement Payment and which, inter alia, shall be immediately due and payable upon confirmation that the shares of Common Stock
issuable upon conversion of the Series D Preferred Stock and Warrants issued pursuant to the Settlement Additional Purchase Right have
been reserved for issuance and that the resale of such reserved shares of Common Stock have been registered on a registration statement
filed with the U.S. Securities and Exchange Commission (the “Commission”). Except as provided herein, shares of Series D Preferred
Stock and Warrants purchased pursuant to the Settlement Additional Purchase Right shall be subject to the same terms and conditions of
the Securities Purchase Agreement as if they were Additional Purchase Shares or Additional Warrants, respectively.
SECTION 2. Choice of Law. This Amendment
is governed by, and construed in accordance with, the laws of the State of New York, United States of America, without giving effect to
the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of
any jurisdiction other than those of the State of New York.
SECTION 3. Miscellaneous. Except as provided
herein, the Settlement Agreement shall remain unchanged and in full force and effect. This Amendment may be executed in one or more counterparts
(including by facsimile or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all
parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute
one and the same agreement.
[Signature pages follow]
IN WITNESS WHEREOF, and intending to be legally bound, each of the
Parties hereto has caused this Amendment to be executed as of the date(s) set forth below.
| |
Mullen Automotive Inc. |
| |
|
|
| |
By: |
/s/ David Michery |
| |
Name: |
David Michery |
| |
Title: |
Chief Executive Officer |
| |
Acuitas Capital, LLC |
| |
|
|
| |
By: |
/s/ Terren Peizer |
| |
Name: |
Terren Peizer |
| |
Title: |
Chief Executive Officer |