MULN Mullen Automotive Inc

 

As filed with the Securities and Exchange Commission on September 20, 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		86-3289406
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

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:

Katherine J. Blair

Jones Day

555 South Flower Street, 50th Floor

Los Angeles, CA 90071-2300

(213) 489-3939

 

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	☒	Smaller reporting company	☒
		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 an amendment (the “Amendment”) to the Mullen Automotive Inc. 2022 Equity Incentive Plan, as amended (the “2022 Plan”), approved by stockholders at the Company’s special meeting on September 9, 2024, and 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. 333-276539) with the Securities and Exchange Commission (the “Commission”) on January 17, 2024 registering 26,575,505 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 September 17, 2024, 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 and the Amendment, 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, 333-274113 and 333-276539) previously filed with the Commission on August 11, 2022, September 14, 2022, August 21, 2023, and January 17, 2024, 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, 333-274113 and 333-276539) previously filed with the Commission on September 14, 2022, August 21, 2023, and January 17, 2024, 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; and

 

(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 Statements on Form S-8 (File Nos. 333-274113 and 333-276539) previously filed with the Commission on August 21, 2023 and January 17, 2024, respectively, 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, December 22, 2023, January 24, 2024, March 5, 2024, March 7, 2024, May 6, 2024, May 24, 2024, June 6, 2024, July 12, 2024, August 1, 2024, August 26, 2024, August 30, 2024, September 13, 2024, and September 20, 2024; 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.

 

Exhibit Number		Description
4.1		Second Amended and Restated Certificate of Incorporation of Mullen Automotive Inc., dated November 5, 2021 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the Commission on November 12, 2021)
4.1(a)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of Mullen Automotive, Inc., dated March 8, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Commission on March 10, 2022)
4.1(b)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on July 26, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on July 27, 2022)
4.1(c)		Certificate of Designations, Preferences and Rights of Series D Convertible Preferred Stock. (incorporated by reference to Exhibit 4.1(c) to the Company’s Registration Statement on Form S-3, filed with the Commission on September 19, 2022)
4.1(d)		Certificate of Mullen Automotive Inc. Increasing Number of Shares of Preferred Stock Designated as Series D Convertible Preferred Stock (incorporated by reference to Exhibit 4.1(d) to the Company’s Registration Statement on Form S-3, filed with the Commission on October 17, 2022)
4.1(e)		Certificate of Designation of Series AA Preferred Stock, filed November 14, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the Commission on November 14, 2022)
4.1(f)		Certificate of Cancellation of Series AA Preferred Stock filed on January 30, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the Commission on January 31, 2023)
4.1(g)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on January 30, 2023 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the Commission on January 31, 2023)
4.1(h)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on May 3, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on May 5, 2023)
4.1(i)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on August 10, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on August 11, 2023)
4.1(j)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on December 20, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on December 21, 2023)
4.1(k)		Certificate of Designation of Rights, Preferences and Privileges of Series A-1 Junior Participating Preferred Stock of Mullen Automotive Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on May 6, 2024)
4.1(l)		Rights Agreement dated as of May 1, 2024, by and between the Company and Continental Stock Transfer & Trust Company, as rights agent, which includes as Exhibit B and Exhibit C the Form of Common Rights Certificate and the Form of Preferred Rights Certificate, respectively (incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K filed with the Commission on May 6, 2024)
4.1(m)		Certificate of Designation of Rights, Preferences and Privileges of Series E Preferred Stock of Mullen Automotive Inc. filed on May 31, 2024 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on June 6, 2024)

 

 

4.1(n)		Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation filed on September 16, 2024 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K filed with the Commission on September 20, 2024)
4.2		Amended and Restated Bylaws of Mullen Automotive Inc., as of November 30, 2023 (incorporated by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K, filed with the Commission on January 17, 2024)
5.1		Opinion of Jones Day
23.1		Consent of Independent Registered Public Accounting Firm (RBSM LLP)
23.2		Consent of Independent Registered Public Accounting Firm (Daszkal Bolton LLP)
23.3		Consent of Jones Day (included in Exhibit 5.1)
24		Power of Attorney (contained on signature page hereto)
99.1		Mullen Automotive Inc. 2022 Equity Incentive Plan (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement (Schedule 14A) filed with the Commission on June 24, 2022)
99.1(a)		Amendment to Mullen Automotive Inc. 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Commission on August 7, 2023)
99.1(b)		Amendment to Mullen Automotive Inc. 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Commission on September 13, 2024)
99.1(c)		Form of Stock Option Agreement under 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.2(a) to the Company’s Form 10-K filed with the Commission on January 13, 2023)
99.1(d)		Form of Restricted Stock Agreement under 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.2(b) to the Company’s Form 10-K filed with the Commission on January 13, 2023)
99.1(e)		Form of Restricted Stock Unit Agreement under 2022 Equity Incentive Plan (incorporated by reference to Exhibit 10.2(c) to the Company’s Form 10-K filed with the Commission on January 13, 2023)
99.2		Performance Stock Award Agreement dated May 5, 2022 between Mullen Automotive Inc. and David Michery (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the Commission on July 27, 2022).
99.3		Performance Stock Award Agreement dated June 8, 2023 between Mullen Automotive Inc. and David Michery (incorporated by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the Commission on August 7, 2023)
107		Filing Fee Table

 

 

SIGNATURES

 

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 20th day of September, 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		September 20, 2024
David Michery		(Principal Executive Officer)
/s/ Jonathan New		Chief Financial Officer		September 20, 2024
Jonathan New		(Principal Financial Officer)
/s/ Chester Bragado		Chief Accounting Officer		September 20, 2024
Chester Bragado		(Principal Accounting Officer)
/s/ Mary Winter		Secretary and Director		September 20, 2024
Mary Winter
/s/ William Miltner		Director		September 20, 2024
William Miltner
/s/ John Andersen		Director		September 20, 2024
John Andersen
/s/ Ignacio Nova		Director		September 20, 2024
Ignacio Novoa
/s/ Kent Puckett		Director		September 20, 2024
Kent Puckett
/s/ Mark Betor		Director		September 20, 2024
Mark Betor

 

 

Exhibit 5.1

 

 

 

555 South Flower Street  ●  Fiftieth Floor  ●  Los Angeles, California   90071.2452

Telephone: +1.213.489.3939  ●  jonesday.com

 

 

September 20, 2024

 

Mullen Automotive Inc.
1405 Pioneer Street
Brea, California 92821

 

Re:

Registration Statement on Form S-8 Filed by Mullen Automotive Inc.

 

Ladies and Gentlemen:

 

We have acted as counsel for Mullen Automotive Inc., a Delaware corporation (the “Company”), in connection with the registration of an aggregate of 21,505,654 shares (the “Shares”) of common stock, par value $0.001 per share, of the Company (the “Common Stock”), consisting of (a) 21,155,654 shares of Common Stock issuable under the Mullen Automotive Inc. 2022 Equity Incentive Plan, as amended (the “Plan”), (b) an additional 100,000 shares of Common Stock that may be issued pursuant to the Performance Stock Award Agreement, dated May 5, 2022, between the Company and David Michery (the “2022 Performance Stock Award Agreement”) and (c) an additional 250,000 shares of Common Stock that may be issued pursuant to the Performance Stock Award Agreement, dated June 8, 2023, between the Company and David Michery (the “2023 Performance Stock Award Agreement”). In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares that may be issued or delivered and sold pursuant to the 2022 Performance Stock Award Agreement, the 2023 Performance Stock Award Agreement and the Plan and the authorized forms of stock option, performance stock unit, restricted stock unit or other applicable award agreements thereunder (the “Award Agreements”) will be, when issued or delivered and sold in accordance with the 2022 Performance Stock Award Agreement, the 2023 Performance Stock Award Agreement or the Plan and the Award Agreements, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least equal to the stated par value thereof.

 

The opinion expressed herein is limited to the General Corporation Law of the State of Delaware, as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction on the opinion expressed herein. In addition, we have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the 2022 Performance Stock Award Agreement, the 2023 Performance Stock Award Agreement or the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered and sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, we have assumed that each award under the 2022 Performance Stock Award Agreement, the 2023 Performance Stock Award Agreement, and the Plan will be approved by the Board of Directors of the Company (the “Board”) or an authorized committee of the Board.

 

 

AMSTERDAM  ●  ATLANTA  ●  BEIJING  ●  BOSTON  ●  BRISBANE  ●  BRUSSELS  ●  CHICAGO  ●  CLEVELAND  ●  COLUMBUS  ●  DALLAS DETROIT  ●  DUBAI  ●  DÜSSELDORF  ●  FRANKFURT  ●  HONG KONG  ●  HOUSTON  ●  IRVINE  ●  LONDON  ●  LOS ANGELES  ●  MADRID MELBOURNE  ●  MEXICO CITY  ●  MIAMI  ●  MILAN  ●  MINNEAPOLIS  ●  MUNICH  ●  NEW YORK  ●  PARIS  ●  PERTH  ●  PITTSBURGH SAN DIEGO  ●  SAN FRANCISCO  ●  SÃO PAULO  ●  SHANGHAI  ●  SILICON VALLEY  ●  SINGAPORE  ●  SYDNEY  ●  TAIPEI  ●  TOKYO  ●  WASHINGTON

 

Mullen Automotive Inc.

September 20, 2024

Page 2

 

 

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect the registration of the Shares under the Securities Act of 1933 (the “Act”). In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

	Very truly yours,
	/s/ Jones Day

 

 

Exhibit 23.1

 

101 Larkspur Landing Circle, Suite 321 Larkspur, CA 94939   www.rbsmllp.com

 

 

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 16, 2024, relating 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).

 

/s/ RBSM LLP
RBSM, LLP

Larkspur, California

 

September 20, 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
September 20, 2024

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-8

 

Mullen Automotive Inc.

 

Table 1: Newly Registered Securities

 

			Security Type		Security Class Title		Fee Calculation Rule		Amount to be Registered				Proposed Maximum Offering Price Per Share				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
1			Equity		Common Stock, $0.001 par value per share		Other			21,155,654			$	8.020			$	169,668,345.08			$	0.00014760			$	25,043.05
1			Equity		Common Stock, $0.001 par value per share		Other			100,000			$	8.020			$	802,000.00			$	0.00014760			$	118.38
1			Equity		Common Stock, $0.001 par value per share		Other			250,000			$	8.020			$	2,005,000.00			$	0.00014760			$	295.94
			Total Offering Amounts																						$	25,457.36
			Total Fees Previously Paid																							-
			Total Fee Offsets																							-
			Net Fee Due																						$	25,457.36

 

Offering Note

 

1	Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall 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.
	Proposed maximum offering price per unit estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per unit and maximum aggregate offering price are based on the reported average of the high and low prices of the Common Stock as reported on the Nasdaq on September 19, 2024 (rounded up to the nearest cent).

 

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