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.
Item 8.01 Other Events.
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
Exhibit No. Description
3.1 Certificate of Cancellation filed on January 30, 2023
3.2 Certificate of Amendment to the Second Amended and Restated
Certificate of Incorporation filed on January 30, 2023
99.1 Press release dated January 25, 2023
10.4 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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