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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Mullen Automotive Inc | NASDAQ:MULN | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
-0.09 | -3.37% | 2.58 | 2.56 | 2.57 | 2.76 | 2.52 | 2.65 | 1,461,249 | 00:59:48 |
As filed with the Securities and Exchange Commission on January 17, 2024 | Registration No. 333- |
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MULLEN AUTOMOTIVE INC.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) |
86-3289406 (I.R.S. Employer |
1405 Pioneer Street
Brea, California 92821
(Address of principal executive offices)
Mullen Automotive Inc. 2022 Equity Incentive Plan, as amended
2022 Performance Stock Award Agreement
2023 Performance Stock Award Agreement
(Full title of the plan)
David Michery
President and Chief Executive Officer
1405 Pioneer St
Brea, CA 92821
(714) 613-1900
(Name, address and telephone number of agent for service)
With copies to:
Thomas J. Poletti, Esq. | Katherine J. Blair, Esq. | |
Manatt, Phelps & Phillips, LLP | Manatt, Phelps & Phillips, LLP | |
695 Town Center Drive, 14th Floor | 2049 Century Park East, Suite 1700 | |
Costa Mesa, California 92626 | Los Angeles, California 90067 | |
(714) 371-2501 | (310) 312-4252 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |
Non-accelerated filer | x | Smaller reporting company | x | |
Emerging growth company | ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
Post Reverse Stock Split
2022 Equity Incentive Plan
This Registration Statement on Form S-8 is being filed by Mullen Automotive Inc. (the “Company” or “Registrant”) for the purpose of registering additional shares of the Registrant’s common stock, $0.001 par value (the “Common Stock”) issuable pursuant to the Mullen Automotive Inc. 2022 Equity Incentive Plan, as amended (the “2022 Plan”) as a result of the proportionately reduced number of shares registered due to the Reverse Stock Split (as defined below).
The Registrant previously filed a Registration Statement on Form S-8 (File No. 333-274113) with the Securities and Exchange Commission (the “Commission”) on August 21, 2023 registering 52,000,000 shares of Common Stock issuable pursuant to the 2022 Plan. Pursuant to the terms of the amendment to the Company’s 2022 Plan, which was approved by the stockholders at the Company’s annual meeting held on August 3, 2023, shares available for grant under the 2022 Plan are not subject to adjustment for any decrease or increase in the number shares of Common Stock resulting from a stock spilt, reverse stock split, recapitalization, combination, reclassification, the payment of a stock dividend on the Common Stock or any other decrease in the number of such shares of Common Stock effected without receipt of consideration by the Company. On December 21, 2023, the Registrant effectuated a 1-for-100 reverse stock split (the “Reverse Stock Split”) of its Common Stock. Pursuant to Rule 416(b) of the Securities Act of 1933, as amended, if prior to completion of the distribution of the securities covered by a registration statement, all the securities of a class which includes the registered securities are combined by a reverse split into a lesser amount of securities of the same class, the amount of undistributed securities of such class deemed to be covered by the registration statement shall be proportionately reduced. Accordingly, as a result of the Reverse Stock Split, this Registration Statement on Form S-8 is being filed to register additional shares of Common Stock that are issuable pursuant to the 2022 Plan.
Pursuant to General Instruction E to Form S-8, this Registration Statement is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement of the Company on Form S-8 relating to the 2022 Plan, is effective, and the Company’s Registration Statements on Form S-8 (File Nos. 333-266787, 333-267417 and 333-274113) previously filed with the Commission on August 11, 2022, September 14, 2022, and August 21, 2023, respectively, registering shares of Common Stock issuable under the 2022 Plan are incorporated by reference in this Registration Statement, except as supplemented by the information set forth below.
Performance Stock Award Agreements
This Registration Statement is also being filed for the purpose of registering:
(i) | additional shares of Common Stock that may be issuable to David Michery, Chief Executive Officer and founder of the Registrant, based on the achievement of certain remaining milestones and subject to the terms and conditions under the Performance Stock Award Agreement, dated May 5, 2022, between the Registrant and Mr. Michery and approved by the stockholders of the Registrant on July 26, 2022 (the “2022 PSA”). Pursuant to General Instruction E to Form S-8, this Registration Statement is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement of the Company on Form S-8 relating to the 2022 PSA is effective, and the Company’s Registration Statements on Form S-8 (File Nos. 333-267417 and 333-274113) previously filed with the Commission on September 14, 2022 and August 21, 2023, respectively, registering shares of Common Stock issuable under the 2022 PSA are incorporated by reference in this Registration Statement, except as supplemented by the information set forth below. |
(ii) | additional shares of Common Stock that may be issuable to David Michery, Chief Executive Officer and founder of the Registrant, based on the achievement of certain remaining milestones and subject to the terms and conditions under the Performance Stock Award Agreement, dated June 8, 2023, between the Registrant and Mr. Michery and approved by the stockholders of the Registrant on August 3, 2023 (the “2023 PSA”). Pursuant to General Instruction E to Form S-8, this Registration Statement is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement of the Company on Form S-8 relating to the 2023 PSA is effective, and the Company’s Registration Statement on Form S-8 (File No. 333-274113) previously filed with the Commission on August 21, 2023 registering shares of Common Stock issuable under the 2023 PSA are incorporated by reference in this Registration Statement, except as supplemented by the information set forth below. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference. |
The Registrant hereby incorporates by reference into this Registration Statement the following documents filed by it with the Commission:
(a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2023, as filed with the Commission on January 17, 2024; |
(b) | The Registrant’s Current Reports on Form 8-K filed with the Commission on October 6, 2023, October 18, 2023, October 27, 2023, November 1, 2023, November 17, 2023, December 1, 2023, December 21, 2023, and December 22, 2023; and |
(c) | The description of the Registrant’s Common Stock in Exhibit 4.4 to its 2023 Form 10-K and as may be further updated or amended in any amendment or report filed for such purpose. |
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement and the prospectus.
Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, that the Registrant has furnished, or may from time to time furnish, to the Commission is, or will be, incorporated by reference into, or otherwise included in, this Registration Statement.
Item 8. | Exhibits. |
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Brea, State of California, on the 16th day of January, 2024.
Mullen Automotive Inc. | ||
By: | /s/ David Michery | |
Name: David Michery | ||
Title: Chief Executive Officer and President |
POWER OF ATTORNEY
We, the undersigned officers and directors of Mullen Automotive Inc., a Delaware corporation, do hereby constitute and appoint David Michery and Jonathan New, each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Name and Signature | Title | Date | ||
/s/ David Michery | President, Chief Executive Officer and Chairman of the Board | January 16, 2024 | ||
David Michery | (Principal Executive Officer) | |||
/s/ Jonathan New | Chief Financial Officer | January 16, 2024 | ||
Jonathan New | (Principal Financial Officer) | |||
/s/ Chester Bragado | Chief Accounting Officer | January 16, 2024 | ||
Chester Bragado | (Principal Accounting Officer) | |||
/s/ Mary Winter | Secretary and Director | January 16, 2024 | ||
Mary Winter | ||||
/s/ William Miltner | Director | January 16, 2024 | ||
William Miltner | ||||
/s/ John Andersen | Director | January 16, 2024 | ||
John Andersen | ||||
/s/ Ignacio Novoa | Director | January 16, 2024 | ||
Ignacio Novoa | ||||
/s/ Kent Puckett | Director | January 16, 2024 | ||
Kent Puckett | ||||
/s/ Mark Betor | Director | January 16, 2024 | ||
Mark Betor |
Exhibit 5.1
January 16, 2024
Mullen Automotive Inc.
1405 Pioneer St
Brea, CA 92821
Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to Mullen Automotive Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), for the registration by the Company of an aggregate of 37,575,505 shares of common stock, par value $0.001 per share (the “Common Stock”), of the Company (the “Shares”), consisting of (a) an additional 26,575,505 shares of Common Stock issuable under the Mullen Automotive Inc. 2022 Equity Incentive Plan, as amended (the “2022 Plan”), , (b) an additional 3,000,000 shares of Common Stock reserved for issuance under the Performance Stock Award Agreement dated May 5, 2022 between the Company and David Michery (the “2022 Award Agreement”), and (c) an additional 8,000,000 shares of Common Stock reserved for issuance under the Performance Stock Award Agreement dated June 8, 2023 between the Company and David Michery (the “2023 Award Agreement”, together with the 2022 Award Agreement, the “Award Agreements”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
As such counsel and for purposes of our opinions set forth below, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, resolutions, certificates and instruments of the Company and corporate records furnished to us by the Company, certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary or appropriate as a basis for the opinion set forth below.
In such examination and in rendering the opinions expressed below, we have assumed, without independent investigation or verification: (i) the genuineness of all signatures on all agreements, instruments, corporate records, certificates and other documents submitted to us, (ii) the legal capacity and authority of all persons or entities (other than the Company) executing all agreements, instruments, corporate records, certificates and other documents submitted to us, (iii) the authenticity and completeness of all agreements, instruments, corporate records, certificates and other documents submitted to us as originals, (iv) that all agreements, instruments, corporate records, certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform to authentic originals thereof, and that such originals are authentic and complete, (v) the due authorization, execution and delivery of all agreements, instruments, certificates and other documents by all parties thereto (other than the Company), (vi) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion set forth below are true and correct, and (vii) that the officers and directors of the Company have properly exercised their fiduciary duties. We also have obtained from the officers of the Company certificates as to certain factual matters necessary for the purpose of this opinion and, insofar as this opinion is based on such matters of fact, we have relied solely on such certificates without independent investigation. We have also assumed that the Shares will be issued and sold as described in the Registration Statement and the applicable provisions of the 2022 Plan or the Award Agreements, as applicable. We have also assumed that upon the issuance of any Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Second Amended and Restated Certificate of Incorporation, as amended.
2049 Century Park East, Suite 1700, Los Angeles, California 90067 Telephone: 310.312.4000 Fax: 310.312.4224 Albany | Boston | Chicago | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington D.C. |
Mullen Automotive Inc.
January 16, 2024
Page 2
Based upon and subject to the foregoing qualifications, assumptions and limitations, we are of the opinion that the Shares have been duly authorized and, when issued and delivered against payment therefor in conformity with the terms of the 2022 Plan or the Award Agreements, assuming in each case that the individual issuance, grants or awards under the 2022 Plan or the Award Agreements, as applicable, are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised, if applicable, in accordance with the requirements of the law and the 2022 Plan or the Award Agreements, as applicable, will be validly issued, fully paid and non-assessable.
We express no opinion as to the applicability or effect of any laws, orders or judgments of any state or other jurisdiction other than the General Corporation Law of the State of Delaware (including the statutory provisions and all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws). This opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Shares.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and the use of our name therein under the caption “Legal Matters.” In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission adopted under the Securities Act.
2049 Century Park East, Suite 1700, Los Angeles, California 90067 Telephone: 310.312.4000 Fax: 310.312.4224
Albany | Boston | Chicago | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington D.C.
Mullen Automotive Inc.
January 16, 2024
Page 3
The opinions included herein are expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very truly yours, | |
/s/ Manatt, Phelps & Phillips, LLP |
2049 Century Park East, Suite 1700, Los Angeles, California 90067 Telephone: 310.312.4000 Fax: 310.312.4224
Albany | Boston | Chicago | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington D.C.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Mullen Automotive Inc.
Brea, California
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 16, 2024 with respect to the consolidated financial statements of Mullen Automotive Inc. as of and for the year ended September 30, 2023 (which report includes an explanatory paragraph regarding the Company’s ability to continue as a going concern) included in its Annual Report on Form 10-K for the year ended September 30, 2023.
/s/ RBMS LLP
RBSM, LLP
PCAOB ID No. 587
RBSM, LLP
101 Larkspur Landing Suite 321
Larkspur, CA 94939
January 16, 2024
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this registration statement on Form S-8 of our report dated January 13, 2023 relating to our audit of the consolidated financial statements of Mullen Automotive Inc. as of September 30, 2022 and for the year then ended, which financial statements appear in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on January 17, 2024. Our report includes an explanatory paragraph related to Mullen Automotive Inc.’s ability to continue as a going concern.
/s/ Daszkal Bolton LLP
Fort Lauderdale, Florida
January 16, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Mullen Automotive Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered
Security Type | Security Class Title | Fee Calculation Rule | Amount
to be Registered(1) | Proposed Maximum Offering Price Per Share(5) | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
|||||||||||||||||
Equity | Common Stock, $0.001 par value per share | Rules 457(c) and 457(h) | 26,575,505 | (2) | $ | 11.74 | $ | 311,863,551.18 | $ | 0.00014760 | $ | 46,031.06 | ||||||||||||
Equity | Common Stock, $0.001 par value per share | Rules 457(c) | 3,000,000 | (3) | $ | 11.74 | $ | 93,880,000.00 | $ | 0.00014760 | $ | 13,856.69 | ||||||||||||
Equity | Common Stock, $0.001 par value per share | Rules 457(c) | 8,000,000 | (4) | $ | 11.74 | $ | 35,205,000.00 | $ | 0.00014760 | $ | 5,196.26 | ||||||||||||
Total Offering Amounts | $ | 65,084.01 | ||||||||||||||||||||||
Total Fees Previously Paid | - | |||||||||||||||||||||||
Total Fee Offsets | - | |||||||||||||||||||||||
Net Fee Due | $ | 65,084.01 |
(1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, $0.001 par value per share (the “Common Stock”), that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock. |
(2) | Represents shares of Common Stock available for issuance under the 2022 Equity Incentive Plan. |
(3) | Represents shares of Common Stock reserved for issuance pursuant to the Performance Stock Award Agreement dated May 5, 2022. |
(4) | Represents shares of Common Stock reserved for issuance pursuant to the Performance Stock Award Agreement dated June 8, 2023. |
(5) | This estimate is made pursuant to Rules 457(c) and 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The Proposed Maximum Offering Price Per Share is the average of the high and low prices for the Registrant’s Common Stock as reported on Nasdaq on January 12, 2024. |
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