As filed with the Securities and Exchange Commission on August 11,
2022
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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) |
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90-1025599
(IRS Employer
Identification No.) |
1405 Pioneer Street
Brea, California 92821
(Address of Principal Executive Offices)
2022 Equity Incentive Plan of Mullen Automotive
Inc.
(Full title of the plan)
David Michery
President, CEO and Chairman
1405 Pioneer St
Brea, CA 92821
(Name and address of agent for service)
(714) 613-1900
(Telephone number, including area code, of agent for service)
With a copy to:
Robert H. Cohen, Esq.
Daniel L. Woodard, Esq.
McDermott Will & Emery LLP
One Vanderbilt Avenue
New York, New York 10017
Tel: (212) 547-5400
Fax: (212) 547-5444
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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 ¨ |
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Accelerated filer ¨ |
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Non-accelerated filer x |
Smaller reporting company x |
Emerging growth company x |
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. ¨
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is
omitted from this Registration Statement and will be sent or given
to employees in accordance with the provisions of
Rule 428(b)(1) of the Securities Act of 1933, as amended
(the “Securities Act”). These documents are not being filed with
the Securities and Exchange Commission (the “Commission”) either as
part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by
reference in this registration statement pursuant to Item 3 of
Part II of this Form S-8, taken together, constitute a
prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II INFORMATION REQUIRED IN REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, filed by the Company with the Securities
and Exchange Commission (the “Commission”) pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
are incorporated herein by reference and deemed to be a part
hereof:
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(a) |
The Company’s
Annual Report on Form 10-K for
the fiscal year ended September 30, 2021, as filed with the
Commission on December 29, 2021, as amended by that
Amendment No. 1 to the Annual Report on Form 10-K/A the
fiscal year ended September 30, 2021 filed with the Commission
on January 10, 2022. |
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(b) |
The Company’s Quarterly Report on Form 10-Q
for the quarter ended March 31, 2022, filed with the
Commission on May 16, 2022, as amended by Amendment No. 1 to the Quarterly
Report on Form 10-Q filed with the Commission on May 17,
2022. |
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(c) |
The Company’s Quarterly Report on
Form 10-Q for the quarter ended December 31, 2021, filed
with the Commission on February 14, 2022. |
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(d) |
The Company’s
Current Reports on Form 8-K filed with the Commission on
October 20, 2021, November 4, 2021, November 12, 2021 (as
amended by a Form 8-K/A filed with the Commission on November 19, 2021), January 24, 2022, February 28, 2022, March 10, 2022, March 31, 2022, March 31, 2022, June 10, 2022, June 21, 2022, June 24, 2022, July 13, 2022, and July 27, 2022. |
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(e) |
The description of
the Company’s securities contained in the Prospectus, dated April 15,
2022, filed with the Commission on April 18, 2022 pursuant to
Rule 424(b)(4) under the Securities Act (File
No. 333-263880), relating to the Company’s registration
statement on Form S-3 (File
No. 333-263880) filed with the Commission on March 28,
2022, together with any amendment thereto filed with the
Commission for the purpose of updating such description. |
To the extent that any information contained in any Current Report
on Form 8-K, or any exhibit thereto, was furnished to,
rather than filed with, the Commission, including any information
furnished pursuant to Item 2.02 or Item 7.01 of the Company’s
Current Reports on Form 8-K, such information or
exhibit is specifically not incorporated by reference into this
Registration Statement.
All reports and other documents that the Company subsequently files
with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended,
after the date of this Registration Statement and prior to the
filing of a post-effective amendment that indicates the Company has
sold all of the securities offered under this Registration
Statement or deregisters the distribution of all such securities
then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof
from the date that the Company files such report or document.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document that also is, or is deemed to be,
incorporated by reference herein modifies or replaces such
statement. Any such statement so modified or replaced shall not be
deemed, except as so modified or replaced, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the
“DGCL”) provides, in general, that a corporation incorporated under
the laws of the State of Delaware, as we are, may indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding
(other than a derivative action by or in the right of the
corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful. In
the case of a derivative action, a Delaware corporation may
indemnify any such person against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification will be made in respect
of any claim, issue or matter as to which such person will have
been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or
any other court in which such action was brought determines such
person is fairly and reasonably entitled to indemnity for such
expenses.
Article VIII of our certificate of incorporation, as amended,
states that to the fullest extent permitted by the DGCL, a director
of the corporation shall not be liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director.
Under Article IX of our certificate of incorporation, any
person who was or is made a party or is threatened to be made a
party to or is in any way involved in any threatened, pending or
completed action suit or proceeding, whether civil, criminal,
administrative or investigative, including any appeal therefrom, by
reason of the fact that he is or was a director or officer of ours
or was serving at our request as a director or officer of another
entity or enterprise (including any subsidiary), shall be
indemnified and held harmless by us to the fullest extent permitted
by Delaware Law, and we may advance all expenses incurred by such
person in defense of any such proceeding prior to its final
determination. The indemnification provided in our bylaws is not
exclusive of any other rights to which those seeking
indemnification may otherwise be entitled.
We maintain a general liability insurance policy that covers
certain liabilities of directors and officers of our corporation
arising out of claims based on acts or omissions in their
capacities as directors or officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and
controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. |
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Description |
4.1 |
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Second Amended and Restated Certificate
of Incorporation of Mullen Automotive Inc., a Delaware corporation,
filed with the Secretary of State of Delaware on October 2,
2012 (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) |
4.2 |
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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) |
4.3 |
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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) |
4.4 |
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Amended and Restated Bylaws (incorporated
by reference to Exhibit 3.3 to the Company’s Current Report on
Form 8-K, filed with the Commission on October 5,
2012) |
4.5 |
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Amendment No. 1 to the Bylaws,
dated June 15, 2015 (incorporated by reference to
Exhibit 3.2 of the Company’s Current Report on Form 8-K
filed with the Commission on June 16, 2015) |
4.6 |
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Amendment No. 2 to the Bylaws,
dated July 10, 2015 (incorporated by reference to
Exhibit 3.1 of the Company’s Current Report on Form 8-K
filed with the Commission on July 10, 2015) |
5.1 |
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Opinion of
McDermott Will & Emery LLP |
23.1 |
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Consent of
McDermott Will & Emery LLP (included in
Exhibit 5.1) |
23.2 |
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Consent of
Independent Registered Public Accounting Firm (Daszkal Bolton
LLP) |
24.1 |
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Power
of Attorney (included on signature page) |
99.1 |
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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) |
107 |
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Filing Fee
Table |
Item 9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the city of Brea, CA on August 11, 2022.
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Mullen Automotive Inc. |
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By: |
/s/ David
Michery |
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Name: |
David Michery |
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Title: |
Chief Executive Officer, President and Chairman of the
Board |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of Mullen Automotive
Inc., a Delaware corporation (the “Company”), and the undersigned
Directors and Officers of Mullen Automotive Inc. hereby constitute
and appoint David Michery and Kerri Sadler as the Company’s or such
Director’s or Officer’s true and lawful attorneys-in-fact and
agents, for the Company or such Director or Officer and in the
Company’s or such Director’s or Officer’s name, place and stead, in
any and all capacities, with full power to act alone, to sign any
and all amendments to this Registration Statement, and to file each
such amendment to this Registration Statement, with all exhibits
thereto, and any and all documents in connection therewith, with
the Securities and Exchange Commission, hereby granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform any and all acts and things requisite
and necessary to be done in connection therewith, as fully to all
intents and purposes as the Company or such Director or Officer
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ David
Michery |
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Chief Executive Officer, President and Chairman of the
Board |
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August 11, 2022 |
David Michery |
(Principal Executive
Officer) |
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/s/ Kerri
Sadler |
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Chief Financial Officer |
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August 11, 2022 |
Kerri Sadler |
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(Principal Financial and Accounting Officer) |
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/s/ Ignacio
Novoa |
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Director |
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August 11, 2022 |
Ignacio Novoa |
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/s/ Mary
Winter |
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Secretary and Director |
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August 11, 2022 |
Mary Winter |
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/s/ Kent
Puckett |
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Director |
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August 11, 2022 |
Kent Puckett |
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/s/ Mark
Betor |
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Director |
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August 11, 2022 |
Mark Betor |
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/s/ William
Miltner |
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Director |
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August 11, 2022 |
William Miltner |
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/s/ Jonathan New |
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Director |
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August 11, 2022 |
Jonathan New |
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