| | Important Notice Regarding the Availability of Proxy Materials for the Stockholder Meeting to Be Held on August [3], 2023: The 2023 Proxy Statement and the Annual Report to Stockholders for the fiscal year ended September 30, 2022 are available at www.proxyvote.com | | |
| | | | By order of the Board of Directors | |
| | | | David Michery | |
| Date: , 2023 | | | Chief Executive Officer | |
Class | | | Number of Shares | | | Votes/Share | | | Number of Votes | |
Common Stock | | | 1,659,097,754 | | | One/share | | | 1,659,097,754 | |
Series A Preferred Stock | | | 1,925 | | | 1,000/share | | | 1,925,000 | |
Series AA Preferred Stock* | | | 1 | | | 1,300,000,000 /share only on Reverse Stock Split Proposal | | | 1,300,000,000 votes only on Reverse Stock Split Proposal | |
Series B Preferred Stock | | | 0 | | | One/share on an as-converted to common basis | | | 0 | |
Series C Preferred Stock | | | 1,211,757 | | | One/share on an as-converted to common basis | | | 1,211,757 | |
Class | | | Number of Shares | | | Votes/Share | | | Number of Votes | |
Common Stock | | | [263,279,263] | | | One/share | | | [263,279,263] | |
Series A Preferred Stock | | | [1,037] | | | 1,000/share | | | [1,037,000] | |
Series B Preferred Stock | | | 0 | | | One/share voting on an as-converted basis | | | 0 | |
Series C Preferred Stock | | | [1,210,056] | | | One/share voting on an as-converted basis | | | [48,403] | |
Series D Preferred Stock | | | [363,097] | | | One/share only on the Conversion Proposal | | | [363,097] votes only on the Conversion Proposal | |
Name | | | Age | | | Title | |
Kent Puckett | | | 59 | | | Director | |
Mark Betor | | | 67 | | | Director | |
| Class I Directors: David Michery, Ignacio Novoa and Mary Winter | | | Term expires at our 2025 annual meeting of stockholders. | |
| Class II Directors : Kent Puckett and Mark Betor | | | Term expires at our 2026 annual meeting of stockholders. | |
| Class III Directors: William Miltner and John Andersen | | | Term expires at our 2024 annual meeting of stockholders. | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” ALL NOMINEES FOR CLASS II DIRECTORS. | | |
| Shares authorized for issuance under the 2022 Plan following an 1:25 reverse stock split of the Company’s Common Stock that was implemented in May 2023, as of June 22, 2023 | | | | | 7,000,000 | | |
| Shares issued and/or subject to awards granted under the 2022 Plan, as of June 22, 2023 | | | | | [6,626,518] | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF THE AMENDMENT TO THE MULLEN AUTOMOTIVE INC. 2022 EQUITY INCENTIVE PLAN | | |
| | | | | | | | | After the Reverse Stock Split(1) | | |||||||||
| | | Current | | | If Minimum 1:2 Ratio is Selected | | | If Maximum 1:25 Ratio is Selected | | |||||||||
Authorized Common Stock(2) | | | | | 1,750,000,000 | | | | | | 1,750,000,000 | | | | | | 1,750,000,000 | | |
Common Stock issued and outstanding as of the Record Date | | | | | 1,659,097,754 | | | | | | 829,548,877 | | | | | | 66,363,910 | | |
Reserved for Issuance(3) | | | | | 570,865,410 | | | | | | 285,614,252 | | | | | | 22,834,614 | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF AN AMENDMENT OF THE COMPANY’S SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT OF THE COMPANY’S OUTSTANDING COMMON STOCK AT AN EXCHANGE RATIO BETWEEN 1-for-2 TO 1-FOR-10, AS DETERMINED BY THE COMPANY’S BOARD OF DIRECTORS | | |
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| | The Company is a Delaware corporation. The rights of our stockholders are governed by the DGCL, the Delaware Charter and the Delaware Bylaws. | | | The Company will be a Maryland corporation. The rights of our stockholders will be governed by the MGCL, the Maryland Charter and Maryland Bylaws. | | |
AUTHORIZED CAPITAL STOCK | | | The Delaware Charter authorizes 200,000 shares of | | | The Maryland Charter will authorize 5,500,000,000 shares, of which A number of | |
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| | The Delaware Charter | | | The Maryland Charter will The approval of holders of shares of our preferred stock may be required in connection with the creation of new classes or series of stock. See “Preferred Stock” in Appendix F for a description of the voting rights of holders of our preferred stock after the Conversion. The provisions relating to dividends and distributions payable on the shares of each series of preferred stock, including in connection with a Liquidation Event (as defined in the Maryland Charter), will provide the Company with the flexibility to, subject to the requisite vote of holders of outstanding shares of preferred stock, if any, create new senior or parity series of preferred stock without requiring amendments to the terms of the existing preferred stock. | |
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| | Shares of preferred stock that are converted to common stock are cancelled and | | | Pursuant to the Maryland Charter, unless the terms of | | |
VOTING | | | The Delaware Charter provides that: (i) each holder of record of the Company’s common stock is entitled to one vote per share on all matters submitted to a vote of stockholders; (ii) the holders of shares of the Series C Preferred Stock are entitled to one vote for each share held of record by such holder on all matters submitted to a vote of the common stock holders, and as set forth in the Delaware Charter, holders of shares Series C Preferred Stock are entitled to vote separately and have protective voting rights relating to certain matters that are submitted to a vote of the stockholders; (iii) the holders of shares of the Series A Preferred Stock have the right to one thousand (1,000) votes for each share of Series A Preferred Stock per share held of record by such holder, on all matters submitted to a vote of the common stock holders, and as set forth in the Delaware Charter, holders of shares Series A Preferred Stock are entitled to vote separately and have protective voting rights relating to certain matters that are submitted to a vote of the stockholders; and (iv) holders of | | | No change | |
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| | | shares of Series D Preferred Stock are not entitled to any voting powers (including with respect to any class votes taken in accordance with the terms of the Delaware Charter), except for certain protective voting rights set forth in the Company’s Certificate of Designation for Series D Preferred Stock or otherwise as required by Delaware law. | | | | |
CUMULATIVE VOTING | | | The Delaware Charter specifically provides that there shall be no cumulative voting in the election of directors. | | | No change | |
NUMBER AND QUALIFICATION OF DIRECTORS | | | The Delaware Charter provides that the number of directors | | | The Maryland Charter and Maryland Bylaws will provide that the number of directors | |
CLASSIFICATION OF THE BOARD OF DIRECTORS | | | Under the Delaware Charter, the Company’s Board is classified into three classes of directors with staggered terms of office, other than with respect to directors who may be elected by holders of any then-outstanding preferred stock (of which there are none). | | | No change. | |
REMOVAL OF DIRECTORS | | | The Delaware Charter provides that, subject to the rights of the holders of any series of preferred stock, directors may be removed from office only for cause, and then only upon the affirmative vote of the holders of a majority of the total voting power of the then outstanding shares of capital of the Company entitled to vote generally in the election of directors, voting together as a single class. The term “cause” is not defined in the Delaware Charter and is interpreted in | | | The Maryland Charter will provide that, except as may be provided in the terms of any future class or series of our stock entitled to elect or remove one or more directors, any director, or the entire board of directors, may be removed at any time, but only for cause, and then only by the affirmative vote of stockholders entitled to cast a | |
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| | | accordance with Delaware common law. | | | director, conviction of a felony or a final judgment of a court of competent jurisdiction holding that such director caused demonstrable, material harm to the Company through bad faith or active and deliberate dishonesty. | |
ELECTION OF DIRECTORS | | | The Delaware Bylaws provide that, subject to the rights of the holders of any series of preferred stock, at any meeting duly called and held for the election of directors at which a quorum is present, directors shall be elected by a plurality of the votes of the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the election of directors. | | | The Maryland Bylaws will provide that, except as may be provided in the terms of any future class or series of our stock entitled to elect one or more directors, a plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to elect a director. | |
VACANCIES ON THE BOARD OF DIRECTORS | | | The Delaware Charter and Delaware Bylaws provide that, subject to the rights of the holders of any series of preferred stock, vacancies on our Board resulting from death, resignation, removal, disqualification or other cause, and newly created directorships resulting from any increase in the number of directors on the Board, will be filled only by the affirmative vote of a majority of the remaining directors then in office (even though less than a quorum) or by the sole remaining director. Each director so elected shall hold office for a term that shall coincide with the term of the class to which such director shall have been elected. | | | No change. | |
STOCKHOLDER ACTION BY WRITTEN CONSENT | | | The DGCL provides that, unless prohibited by the certificate of incorporation, the stockholders may take action by consent without a meeting. The Delaware Charter does not prohibit stockholder action by consent. | | | The Maryland Charter will provide that any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting if: (i) a unanimous consent setting forth the action is given in writing or by electronic transmission by each stockholder entitled to vote on the matter and filed with the | |
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| | | | | | minutes of proceedings of the stockholders; or (ii) the action is advised and submitted to the stockholders for approval by the Board and a consent in writing or by electronic transmission of holders of shares entitled to cast not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting of stockholders at which all stockholders entitled to vote on the matter are present and voted is delivered to the Company in accordance with the MGCL. | |
AMENDMENT OF THE CHARTER | | | The DGCL provides that amendments to the certificate of incorporation must be approved and declared advisable by the board of directors and, except in certain limited circumstances, adopted by the holders of a majority of the voting power of the outstanding shares of stock of the corporation entitled to vote thereon. Pursuant to the DGCL, holders of a class of outstanding shares have the right to vote separately as a class on an amendment to the certificate of incorporation if such amendment (i) increases or decreases the number of authorized shares of such class (subject to an exception as may be included in the certificate of incorporation), (ii) increases or decreases the par value of the shares of such class, or (iii) alters or changes the powers, preferences, or special rights of the shares of such class so as to affect them adversely. If any proposed amendment would alter or change the powers, preferences, or special rights of one or more series of any class so as to affect them adversely, but shall not so affect the entire class, then only the shares of the series so affected by the amendment shall be considered a separate class for purposes of this right to | | | Under the MGCL and the Maryland Charter, we generally cannot amend the Maryland Charter unless declared advisable by our Board and approved by the affirmative vote of stockholders entitled to cast a majority of the votes entitled to be cast on the matter, provided that certain amendments to the Maryland Charter may, in addition, require the approval of holders of a majority of the then outstanding shares of one or more series of our preferred stock, each voting as a separate class. Further, unless the terms of any future class or series of our preferred stock provide otherwise, the holders of one or more classes or series of our preferred stock will have the exclusive right to vote (voting as separate classes or voting together as a single class, as may be set forth in the terms of such classes or series of preferred stock) on any amendment to the Maryland Charter on which the holders of such specified classes or series of preferred stock are entitled to vote and that would alter only the contract rights, as expressly set forth in the Maryland Charter, of preferred stock of such specified classes or series; and the holders of any other classes and series of our | |
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| | | vote. The | ||||
The Delaware Charter provides that, subject to the rights of the holders of any series of preferred stock, the Delaware Charter may be amended if approved by the affirmative vote of the holders a majority of the total voting power | |||||||
| | The MGCL does not contain separate class voting rights. As a result, holders of preferred stock will no longer be Further, under the Maryland Charter, holders of Series A Preferred Stock | |||||
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| | The | | | The Maryland Charter and Maryland Bylaws will provide that subject to the rights of holders of any | | ||||
| | Stockholders. Subject to the rights of the holders of | | | No change. | |
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| | | power of the outstanding | | | | |
SPECIAL MEETINGS OF STOCKHOLDERS | | | The Delaware Charter provides that, except as otherwise provided by the terms of any series of preferred stock or unless otherwise prescribed by law or any other provision of the Delaware Charter, special meetings of stockholders will only be called by the Company’s Board, the Chairman of the Board, the Chief Executive Officer or the President (in the absence of the Chief Executive Officer). | | | The Maryland Bylaws will provide that special meetings of stockholders may be called by the Board, the chair of the Board, the chief executive officer or the president. Additionally, special meetings of stockholders to act on any matter must be called by the secretary upon the written request of stockholders entitled to cast a majority of all the votes entitled to be cast on such matter at such meeting who have requested the special meeting in accordance with the procedures set forth in, and provided the information and certifications required by, the Maryland Bylaws. Only matters set forth in the notice of the special meeting may be considered and acted upon at such a meeting. | |
ADJOURNMENT | | | Under the | | | Under the MGCL and the Maryland Bylaws, if a quorum is not established at any meeting of stockholders, the chair of the meeting may adjourn to a date which is not more than 120 days after the original record date for the meeting without notice other than announcement at the meeting. At the adjourned meeting, the Company may transact any business that might have been transacted at the original meeting. | |
NOTICE OF STOCKHOLDER MEETINGS | | | In accordance with the DGCL, the Delaware Bylaws provide that, unless otherwise provided by the DGCL or the Delaware Charter, notice of any stockholders meeting shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder | | | In accordance with the MGCL, the Maryland Bylaws will provide that. notice of any stockholders meeting shall be given not less than 10 nor more than 90 days before the date of the meeting to each stockholder entitled to notice of such meeting as of the record date for determining the | |
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| | | entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting. | | | stockholders entitled to notice of the meeting. | |
ANNUAL MEETINGS OF THE STOCKHOLDERS | | | An annual meeting of the Company stockholders must be held at the date, time and place, or may instead be held solely by means of remote communication, as may be designated by our Board. Pursuant to Section 211 of the DGCL, if a corporation does not hold an annual meeting of stockholders within 13 months of the date of the previous year’s annual meeting of stockholders, the Delaware Court of Chancery may summarily order a meeting to be held upon application of any stockholder or director. | | | The MGCL requires a meeting of stockholders | |
| | | | No matters will require a supermajority vote of stockholders under the MGCL, the Maryland Charter or the Maryland Bylaws. | | ||
STOCKHOLDER PROPOSALS | | | The DGCL does not have a statutory requirement with regard to advance notice procedures required of stockholders in order to properly bring business or director nominations before a meeting of stockholders, but a corporation is permitted to include such requirements in its bylaws. The Delaware Bylaws provide that, at an annual meeting of the stockholders, to be properly brought before the meeting, nominations for persons for election to our Board and the proposal of business to be considered by the stockholders must be either (i) properly brought before the meeting by or at the direction of the Board of Directors, or (ii) otherwise properly requested to be brought before the meeting by a | | | The Maryland Bylaws will provide that, with respect to an annual meeting of stockholders, nominations of individuals for election to the Board and the proposal of business to be considered by stockholders at the meeting may be made only: • pursuant to the Company’s notice of the meeting; • by or at the direction of the Board; or • by a stockholder who was a stockholder of record at the record date set by the board of directors for the meeting, at the time of giving of the notice required by the Maryland Bylaws and at the time of the meeting (and any postponement or adjustment thereof), who is entitled to vote | |
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| | | stockholder of the Company who was a stockholder of record on the date that notice was provided in accordance with the Delaware Bylaws, who is entitled to vote and who complied with the advance notice procedures set forth in the Delaware Bylaws. The Delaware Bylaws provide requirements for both substance and timeliness. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Company (a) in the case of an annual meeting that is called for a date that is within 30 days before or after the anniversary date of the immediately preceding annual meeting of stockholders, not less than 60 days nor more than 90 days prior to the | | | at the meeting in the election of each individual so nominated or on such other business and who has complied with the advance notice procedures set forth in, and provided the information and certifications required by, the Maryland Bylaws. The Maryland Bylaws require the stockholder With respect to special meetings of stockholders, the Maryland Bylaws will provide that only the business specified in the Company’s notice of meeting may be brought before the special meeting of stockholders, and | |
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| | | | | nominations of individuals for election to Board may be made only: • by or at the direction of the Board or • provided that the meeting has been called in accordance with the Maryland Bylaws for the purpose of electing directors, by a stockholder who is a stockholder of record at the record date set by the board of directors for the meeting, at the time of giving of the notice required by the Maryland Bylaws and at the time of the meeting (and any postponement or adjustment thereof), who is entitled to vote at the meeting in the election of each individual so nominated and who has complied with the advance notice provisions set forth in, and provided the information and certifications required by, the Maryland Bylaws. Any stockholder may nominate one or more individuals for election as a director if the stockholder’s notice containing the information required by the Maryland Bylaws is delivered to the secretary not earlier than the 120th day prior to such special meeting and not later than 5:00 p.m., Eastern Time, on the later of the 90th day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting. | | |
LIMITATION OF LIABILITY OF DIRECTORS AND OFFICERS | | | The DGCL permits limiting or eliminating the monetary liability of directors and certain officers to a corporation or its stockholders, except with regard to breaches of the duty of loyalty; acts or omissions not in good faith or which involve intentional misconduct or a knowing | | | Maryland law permits a Maryland corporation to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or | |
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| | | violation of law; in the case of directors, unlawful repurchases, redemptions or dividends; transactions from which the director or officer derived an improper personal benefit; or, in the case of such officers, in actions by or in the right of the corporation. The Delaware Charter provides that, to the fullest extent permitted by the DGCL, the Company’s directors are not liable to the Company or any of its stockholders for monetary damages for breaches of fiduciary duties as a director. | | | profit in money, property or services or active and deliberate dishonesty that is established by a final judgment and is material to the cause of action. The Maryland Charter will contain such a provision that eliminates such liability to the maximum extent permitted by Maryland law. | |
INDEMNIFICATION OF DIRECTORS, OFFICERS | | | The DGCL generally permits a corporation to indemnify any current or former director, officer, employee or agent of the corporation (or any person who is or was serving, at the request of the corporation, in one or more of such capacities with respect to another entity, trust or enterprise) against expenses, judgments, fines and amounts paid in settlement in connection with civil, criminal, administrative or investigative actions or proceedings, other than an action by or in the right of the corporation (in which case such persons may only be indemnified against expenses, and only with court approval if such indemnitee has been adjudged liable to the corporation), if the indemnitee acted in good faith and in a manner such indemnitee reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to a criminal action or proceeding, if such indemnitee had no reasonable cause to believe his/her conduct was unlawful. In addition if a current or former director or “officer” (as defined in Section | | | The MGCL requires a Maryland corporation (unless its charter provides otherwise, which the Maryland Charter will not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that: • the act or omission of the director or officer was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty; • the director or officer actually received an improper personal benefit in money, property or | |
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| | | any claim, issue or matter therein, the corporation shall indemnify such indemnitee against expenses actually and reasonably incurred by such indemnitee in connection therewith. The Delaware Charter provides that the Company will indemnify any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or other enterprise, against all liability and loss suffered and expenses incurred by such person, to the fullest extent permitted by the laws of the State of Delaware and the Delaware Charter. The Delaware Charter also provides that the Company is required to pay the expenses incurred by such persons in defending any proceeding in advance of its final disposition. | | | services; or • in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. Under the MGCL, a Maryland corporation may not indemnify a director or officer for an adverse judgment in a suit by or on behalf of the corporation or if the director or officer was adjudged liable on the basis that personal benefit was improperly received unless, in either case, a court orders indemnification, and then only for expenses. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. In addition, the MGCL permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of: • a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and • a written undertaking, which may be unsecured, by the director or officer or on the director’s or officer’s behalf to repay the amount paid if it shall ultimately be determined that the standard of conduct has not been met. The Maryland Charter will obligate us, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and to pay or | |
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| | | | | | reimburse reasonable expenses in advance of final disposition of a proceeding without requiring a preliminary determination of the director’s or officer’s ultimate entitlement to indemnification to: • any present or former director or officer (including former directors or officers of the Company before the completion of the Conversion (“Mullen Delaware”)) who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity; or • any individual who, while a director or officer of our company or Mullen Delaware and, at our request, serves or has served as a director, officer, partner, member, manager, trustee, employee or agent of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. | |
DIVIDENDS / DISTRIBUTIONS | | | Unless further restricted in the certificate of incorporation, the DGCL permits a corporation to declare and pay dividends out of either (i) surplus, or (ii) if no surplus exists, out of net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year (provided that the amount of capital of the corporation following the declaration and payment of dividend is not less than the aggregate amount of the capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets). The DGCL defines surplus as the | | | Pursuant to Section 2-311 of the MGCL and the Maryland Charter, and subject to the preferential rights of any outstanding shares of preferred stock, the Company will be permitted make distributions, which include dividends (other than dividends payable in shares of the Company’s stock), redemptions, repurchases, the incurrence or forgiveness of indebtedness to or for the benefit of the Company’s stockholders or any other direct or indirect transfers of money or other property of the Company in respect of any of its shares, when, as and if authorized by the | |
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| | | excess, at any time, of the net assets of a corporation over its stated capital. In addition, the DGCL provides that a corporation may redeem or repurchase its shares only when the capital of the corporation is not As described in further detail below, subject to the preferential rights of the Company’s preferred stock, holders of the Company’s common stock and Series A Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock, are entitled to dividends if, as and when declared by our Board out of the assets legally available for such distribution. | | | Board, unless, after the distribution, the Company would not be able to pay its debts as they become due in the usual course of business or the Company’s total assets would be less than the sum of its total liabilities, plus, if required by the terms of any Alternatively, the Company may make distributions out of (i) the net earnings of the Company for the fiscal year in which the distribution is made; (ii) its net earnings for the preceding fiscal year; or (iii) the sum of its net earnings for the preceding eight fiscal quarters, so long as, after giving effect to the distribution, the Company will be able to pay its debts as they become due in the ordinary course of its business. In determining whether a | |
BUSINESS COMBINATION STATUTE | | | Section 203 of the DGCL generally prohibits “business combinations,” including certain mergers, sales and leases of assets, issuances of securities and certain other transactions, by a corporation or certain of its subsidiaries with an “interested stockholder” (as defined under | | | Under the MGCL, certain “business combinations” | |
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| | | Section 203 of the DGCL), for a period of three years after the person or entity becomes an interested stockholder unless: (i) the Board of Directors of the corporation has approved, before such person or entity became an interested stockholder, either the business combination or the transaction that resulted in the The Company has not opted out of the protections of Section 203 of the DGCL. As a result, the statute applies to the Company; however, the Board previously approved each of Gregory B. Maffei and certain of his related persons as an “interested stockholder” and the acquisition by such persons of shares of the | | | Maryland corporation and any interested stockholder, or an affiliate of such an interested stockholder, are prohibited for five years after the most recent date on which the interested stockholder |
• • After • 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation, voting together as a single voting group; and • two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other | |
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| | | company’s common stock, in each case, for purposes of Section 203 of the DGCL. | | | than |
These provisions of | ||||||||||
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CONTROL SHARE ACQUISITION ACT | | | There is no equivalent statutory provision to Control Share Acquisition Act under Delaware law. | | | The MGCL provides that a holder of “control shares” of a Maryland corporation acquired in a “control share acquisition” has no voting rights with respect to those shares except to the extent approved by the affirmative vote of | |
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| | | | | | one-tenth or more but less than one-third; • one-third or more but less than a majority; or • a majority or more of all voting power. Control shares do not include shares that the | |
A person who has made or | |||||||
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| | | | | special meeting is made, the corporation may itself present the question at any stockholders meeting. If voting rights of control shares The Maryland | ||
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| | | | | will not be amended or eliminated at any time in the future. | | |
DUTIES OF DIRECTORS | | | Under Delaware law, the standards of conduct for directors have developed through Delaware case law. Generally, directors must exercise a duty of care and duty of loyalty to the | | | Under Maryland law, the standard of conduct for directors is governed by statute. The | |
SUBTITLE 8 | | | There is no equivalent statutory provision to Subtitle 8 under Delaware law | | | • • a two-thirds vote requirement for removing a director; • a requirement that the a | |
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| | • a majority requirement for the calling of a special meeting of stockholders. The Company will elect in the | | ||||
APPRAISAL RIGHTS / DISSENTER’S RIGHTS | | | Under the | | | Pursuant to the MGCL, a Maryland corporation may eliminate appraisal rights in all situations (subject to a limited carve out regarding appraisal rights in connection with the Control Share Acquisitions Act) in its charter. The Maryland Charter will provide that stockholders generally have no appraisal rights unless the Board determines that appraisal rights will apply to one or more transactions in which stockholders would otherwise be entitled to exercise such rights. | |
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| | | provides otherwise, appraisal rights are not available for shares of capital stock that, at the record date for determination of stockholders entitled to receive notice of the meeting of stockholders (or at the record date for determination of stockholders entitled to consent pursuant to Section 228 of the DGCL) to act upon the merger, consolidation or conversion, are either (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders. Further, unless the corporation’s certificate of incorporation provides otherwise, no appraisal rights are available to stockholders of the surviving corporation if the merger did not require the vote of the stockholders of the surviving corporation | | | | |
RIGHT | | | DELAWARE | | | MARYLAND | |
| | appraisal rights in any additional circumstance other than as required by applicable law. See Section 262 of the DGCL. | | | | | |
EXCLUSIVE FORUM | | | The Delaware Charter contains an exclusive forum provision, which provides that the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for | | | The Maryland Bylaws will provide that, unless the Company consents in writing to the selection of an alternative forum, the Circuit Court for Baltimore City, Maryland, or, if that | |
| | DELAWARE | | | MARYLAND | | |
| | | | | Furthermore, the | |
| | THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE CONVERSION OF THE COMPANY FROM A DELAWARE CORPORATION TO A MARYLAND CORPORATION. | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE APPROVAL, ON A NON-BINDING ADVISORY BASIS, OF THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS. | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO HOLD FUTURE STOCKHOLDER ADVISORY VOTES ON THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS EVERY “3 YEAR.” | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL FOR PURPOSES OF COMPLYING WITH NASDAQ LISTING RULE 5635(C), OF THE ISSUANCE OF SHARES OF COMMON STOCK TO OUR CHIEF EXECUTIVE OFFICER PURSUANT TO A PERFORMANCE STOCK AWARD AGREEMENT | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL, FOR PURPOSES OF COMPLYING WITH NASDAQ LISTING RULE 5635(D), OF THE ISSUANCE OF $30 MILLION IN SHARES OF COMMON STOCK AND WARRANTS EXERCISABLE INTO SHARES OF COMMON STOCK AND ANY FUTURE ADJUSTMENTS OF THE EXERCISE PRICE OF THE WARRANTS | | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO RATIFY THE APPOINTMENT OF RBSM LLP | | |
| June , 2023 | | | Respectfully submitted, | |
| | | | Audit Committee Kent Puckett, Chair Mark Betor John Andersen | |
| | THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE ADJOURNMENT PROPOSAL | | |
Name | | | Age | | | Position | | | Director Class | |
David Michery | | | 56 | | | Chief Executive Officer, President, and Chairman of the Board | | | Class I | |
Mary Winter(3) | | | 32 | | | Secretary and Director | | | Class I | |
Ignacio Novoa | | | 40 | | | Director | | | Class I | |
Kent Puckett(2) | | | 59 | | | Director | | | Class II | |
Mark Betor(1) | | | 67 | | | Director | | | Class II | |
William Miltner | | | 61 | | | Director | | | Class III | |
John Andersen(1) | | | 69 | | | Director | | | Class III | |
NAME | | | AGE | | | POSITION | |
Jonathan New | | | 63 | | | Chief Financial Officer | |
Calin Popa | | | 61 | | | President — Mullen Automotive | |
Name of Director | | | Fees earned or paid in cash ($) | | | Stock Awards ($)(1) | | | Total ($) | | |||||||||
John Andersen(2) | | | | | — | | | | | | — | | | | | | — | | |
Mark Betor | | | | $ | 35,870 | | | | | $ | 137,002 | | | | | $ | 172,872 | | |
William Miltner | | | | $ | 24,212 | | | | | $ | 137,002 | | | | | $ | 161,214 | | |
Jonathan New(3) | | | | $ | 62,413 | | | | | $ | 75,002 | | | | | $ | 137,415 | | |
Ignacio Novoa(4) | | | | $ | 6,250 | | | | | $ | 62,000 | | | | | $ | 68,250 | | |
Kent Puckett | | | | $ | 35,870 | | | | | $ | 137,002 | | | | | $ | 172,872 | | |
Name and Principal Position | | | Year | | | Salary ($) | | | Bonus ($) | | | Stock Award ($) Common Shares(1) | | | All Other Compensation | | | Total ($) | | ||||||||||||||||||
David Michery Chief Executive Officer | | | | | 2022 | | | | | $ | 721,154 | | | | | $ | 750,000 | | | | | $ | 4,643,583 | | | | | $ | — | | | | | $ | 6,114,737 | | |
| | | 2021 | | | | | $ | 409,485 | | | | | $ | — | | | | | $ | 1,972,603 | | | | | $ | — | | | | | $ | 2,382,088 | | | ||
Kerri Sadler Former Chief Financial Officer(2) | | | | | 2022 | | | | | $ | 348,539 | | | | | $ | — | | | | | $ | 198,000 | | | | | $ | — | | | | | $ | 546,539 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ||
Jerry Alban Former Chief Operating Officer(3) | | | | | 2022 | | | | | $ | 202,340 | | | | | $ | — | | | | | $ | 280,500 | | | | | $ | 53,846 | | | | | $ | 536,686 | | |
| | | 2021 | | | | | $ | 283,835 | | | | | $ | — | | | | | $ | 25,000 | | | | | $ | — | | | | | $ | 308,835 | | | ||
Calin Popa President – Mullen Automotive | | | | | 2022 | | | | | $ | 295,815 | | | | | $ | — | | | | | $ | 171,555 | | | | | $ | — | | | | | $ | 467,370 | | |
| | | 2021 | | | | | $ | 296,969 | | | | | $ | — | | | | | $ | 87,500 | | | | | $ | — | | | | | $ | 384,469 | | |
Date | | | Tranche | | | % of O/S Shares | | | Shares O/S | | | Shares Issued | | | Stock Price | | | Stock Compensation ($) | | |||||||||||||||
9/21/2022 | | | Russell Index Tranche | | | | | 2% | | | | | | 19,247,780 | | | | | | 384,956 | | | | | $ | 0.41 | | | | | $ | 3,945,795 | | |
10/12/2022 | | | Features Milestone | | | | | 5% | | | | | | 35,907,476 | | | | | | 1,795,374 | | | | | $ | 0.25 | | | | | $ | 11,221,087 | | |
11/9/2022 | | | Non-USA Distribution | | | | | 2% | | | | | | 49,246,006 | | | | | | 984,921 | | | | | $ | 0.27 | | | | | $ | 6,648,211 | | |
11/30/2022 | | | Capital Benchmark | | | | | 2% | | | | | | 57,530,852 | | | | | | 1,150,618 | | | | | $ | 0.19 | | | | | $ | 5,465,431 | | |
Total Shares Awarded | | | | | | | | | | | | | | | | | | | | 4,315,869 | | | | | | | | | | | $ | 27,280,524 | | |
Plan Category | | | (a) Number of securities to be issued upon exercise of outstanding options, warrants and rights | | | (b) Weighted-average exercise price per share of outstanding options, warrants and rights | | | (c) Number of securities remaining available for future issuance under equity compensation plans (excluding securities) | | |||||||||
Equity compensation plans approved by stockholders | | | | | — | | | | | $ | — | | | | | | 6,779,092 | | |
Equity compensation plans not approved by stockholders | | | | | — | | | | | $ | — | | | | | | — | | |
Total | | | | | — | | | | | $ | — | | | | | | 6,779,092(1) | | |
Class | | | Number of Shares | | | Votes/Share | | | Number of Votes | | ||||||
Common Stock | | | | | 1,659,097,754 | | | | One/share | | | | | 1,659,097,754 | | |
Series A Preferred Stock | | | | | 1,925 | | | | 1,000/share | | | | | 1,925,000 | | |
Series B Preferred Stock | | | | | 0 | | | | One/share on an as-converted to common basis | | | | | 0 | | |
Series C Preferred Stock | | | | | 1,211,757 | | | | One/share on an as-converted to common basis | | | | | 1,211,757 | | |
Series D Preferred Stock | | | | | 363,097 | | | | One/share | | | | | 363,097 | | |
Class | | | Number of Shares | | |||
Common Stock | | | | | [263,279,263] | | |
Series A Preferred Stock | | | | | [1,037] | | |
Series B Preferred Stock | | | | | 0 | | |
Series C Preferred Stock | | | | | [1,210,056] | | |
Series D Preferred Stock | | | | | [363,097] | | |
| | | Common Stock(1) | | | Total Voting Power(2) | | ||||||||||||
Name of Beneficial Owners | | | Shares | | | % | | | % | | |||||||||
Named Executive Officers and Directors | | | | | | | | | | | | | | | | | | | |
David Michery(3) | | | | | 690,391,537 | | | | | | 33.4% | | | | | | 33.4% | | |
Jonathan New | | | | | 8,611 | | | | | | * | | | | | | * | | |
Calin Popa | | | | | 309,729 | | | | | | * | | | | | | * | | |
Mary Winter | | | | | 87,453 | | | | | | * | | | | | | * | | |
Jonathan K. Andersen | | | | | 500,000 | | | | | | * | | | | | | * | | |
Mark Betor | | | | | 159,869 | | | | | | * | | | | | | * | | |
William Miltner | | | | | 18,611 | | | | | | * | | | | | | * | | |
Ignacio Novoa | | | | | 283,000 | | | | | | * | | | | | | * | | |
Kent Puckett | | | | | 18,611 | | | | | | * | | | | | | * | | |
Directors and Executive Officers as a Group (9 Persons)(3) | | | | | 691,777,421 | | | | | | 33.4% | | | | | | 33.5% | | |
| | | Common Stock(1) | | | Total Voting Power(2) | | ||||||||||||
Name of Beneficial Owners | | | Shares | | | % | | | % | | |||||||||
5% Beneficial Owners: | | | | | | | | | | | | | | | | | | | |
Acuitas Group Holdings, LLC(4) | | | | | 80,301,289 | | | | | | 4.4% | | | | | | 4.4% | | |
Esousa Holdings LLC(5) | | | | | 81,907,312 | | | | | | 4.5% | | | | | | 4.5% | | |
Davis-Rice Pty Limited(6) | | | | | 40,150,642 | | | | | | 2.3% | | | | | | 2.3% | | |
Name of Beneficial Owners | | | Common Stock(1) | | | Total Voting Power(2) | | ||||||||||||
| | | Shares | | | % | | | % | | |||||||||
Named Executive Officers and Directors | | | | | | | | | | | | | | | | | | | |
David Michery(3) | | | | | [4,409,340] | | | | | | [1.67]% | | | | | | [2.06]% | | |
Jonathan New | | | | | 345 | | | | | | * | | | | | | * | | |
Calin Popa | | | | | 12,390 | | | | | | * | | | | | | * | | |
Mary Winter | | | | | 3,499 | | | | | | * | | | | | | * | | |
Jonathan K. Andersen | | | | | 20,000 | | | | | | * | | | | | | * | | |
Mark Betor | | | | | 6,395 | | | | | | * | | | | | | * | | |
William Miltner | | | | | 745 | | | | | | * | | | | | | * | | |
Ignacio Novoa | | | | | 16,320 | | | | | | * | | | | | | * | | |
Kent Puckett | | | | | 0 | | | | | | * | | | | | | * | | |
Directors and Executive Officers as a Group (9 Persons)(3) | | | | | [4,469,034] | | | | | | [1.7]% | | | | | | [2.1]% | | |
5% Beneficial Owners:** | | | | | | | | | | | | | | | | | | | |
Acuitas Capital LLC(4) | | | | | [26,142,829] | | | | | | — | | | | | | — | | |
Michael Wachs 2022 Dynasty Trust(5) | | | | | [13,016,019] | | | | | | — | | | | | | — | | |
Esousa Holdings LLC(5) | | | | | [13,016,037] | | | | | | — | | | | | | — | | |
Ault Lending, LLC f/k/a Digital Power Lending, LLC(6) | | | | | [5,744,726] | | | | | | — | | | | | | — | | |
Jess Mogul(7) | | | | | [1,895,541] | | | | | | — | | | | | | — | | |
Davis-Rice Pty Limited(8) | | | | | [18,939,392] | | | | | | — | | | | | | — | | |
| | | Beneficial Ownership of Series AA Preferred Stock | | |||||||||
Name of Beneficial Owner | | | Shares | | | Percent | | ||||||
David Michery(1) | | | | | 1 | | | | | | 100% | | |
| Year 1 | | | No Redemption | |
| Year 2 | | | Redemption at 120% of the Series C Redemption Price | |
| Year 3 | | | Redemption at 115% of the Series C Redemption Price | |
| Year 4 | | | Redemption at 110% of the Series C Redemption Price | |
| Year 5 | | | Redemption at 105% of the Series C Redemption Price | |
| Year 6 and thereafter | | | Redemption at 100% of the Series C Redemption Price | |
| Year 1 | | | No Redemption | |
| Year 2 | | | Redemption at 120% of the Series D Redemption Price | |
| Year 3 | | | Redemption at 115% of the Series D Redemption Price | |
| Year 4 | | | Redemption at 110% of the Series D Redemption Price | |
| Year 5 | | | Redemption at 105% of the Series D Redemption Price | |
| Year 6 and thereafter | | | Redemption at 100% of the Series D Redemption Price | |
| Class I | | | 3 Directors | | | Expires 2025 | |
| Class II | | | 2 Directors | | | Expires 2026 | |
| Class III | | | 2 Directors | | | Expires 2024 | |