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SUBSEQUENT EVENTS | 12 Months Ended
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Sep. 30, 2022
SUBSEQUENT EVENTS |
SUBSEQUENT EVENTS | NOTE 20 – SUBSEQUENT EVENTS Company management has evaluated subsequent events through January 13, 2023 which is the date these financial statements were available to be issued. Except as discussed below, management has determined that there were no subsequent events which required recognition, adjustment to or disclosure in the financial statements: Amendment to Amended and Restated By Laws On November 14, 2022, the Board approved the third amendment to the Company’s Amended and Restated Bylaws that amends the following: (1) change the corporate name of the Bylaws to “Mullen Automotive Inc.”, which reflects the Company’s change of corporate name from “Net Element, Inc.” to “Mullen Automotive Inc.” as set forth in a Certificate of Amendment to its Certificate of Incorporation filed with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) on November 3, 2021, and (2) amend Section 2.05 of Article 2 of the Company’s Bylaws to change the quorum requirement for a meeting of stockholders from a majority to 33 1/3% of the outstanding capital stock of the Company entitled to vote. ​ Certificate of Designation of Series AA Preferred Stock On November 14, 2022, the Company filed a certificate of designation (the “Series AA Certificate of Designation”) with the Secretary of State of the State of Delaware, effective as of the time of filing, designating the rights, preferences, privileges and restrictions of the share of Series AA Preferred Stock. The Series AA Certificate of Designation provides that the Series AA Preferred Stock will have 1,300,000,000 votes per share of Series AA Preferred Stock and will vote together with the outstanding shares of the Company’s common stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock as a single class exclusively with respect to any proposal to adopt an amendment to the Company’s Second Amended and Restated Certificate of Incorporation to effect a reverse stock split of the Company’s common stock. The Series AA Preferred Stock will be voted, without action by the holder, on any such proposal in the same proportion as shares of common stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock as a single class are voted. The Preferred Stock otherwise has no voting rights except as otherwise required by the General Corporation Law of the State of Delaware. ​ The Series AA Preferred Stock is not convertible into, or exchangeable for, shares of any other class or series of stock or other securities of the Company. The Series AA Preferred Stock has no rights with respect to any distribution of assets of the Company, including upon a liquidation, bankruptcy, reorganization, merger, acquisition, sale, dissolution or winding up of the Company, whether voluntarily or involuntarily. The holder of the Series AA Preferred Stock will not be entitled to receive dividends of any kind. ​ On November 14, 2022, the Company entered into a Subscription and Investment Representation Agreement with David Michery, its Chief Executive Officer, pursuant to which the Company issued and sold one share of the Company’s Series AA Preferred Stock for $25,000.00 in cash. The outstanding share of Series AA Preferred Stock will be redeemed in whole, but not in part, at any time: (i) if such redemption is ordered by the Board of Directors in its sole discretion or (ii) automatically upon the approval by the Company’s stockholders of an amendment to the Certificate of Incorporation to implement a reverse stock split. Upon such redemption, the holder of the Preferred Stock will receive consideration of $25,000.00 in cash. ​ Series D Preferred Stock Certificate of Designation On October 17, 2022, the Company filed a Certificate of Mullen Automotive Inc. Increasing Number of Shares of Preferred Stock Designated as Series D Convertible Preferred Stock (the “Certificate”) with the Secretary of State of the State of Delaware. The Certificate increased the number of shares of the Company’s Series D Convertible Preferred Stock from 87,500,001 shares to 437,500,001 shares. ELMS Asset Acquisition On October 13, 2022, the United States Bankruptcy Court for the District of Delaware approved the sale of certain assets of Electric Last Mile, Inc. and Electric Last Mile Solutions, Inc. pursuant to the terms and conditions of the Asset Purchase Agreement dated September 16, 2022, for approximately $55.0 million plus the assumption of monetary liabilities related to assumed contracts, which are estimated to be approximately $37.0 million. The asset acquisition closed on November 30, 2022. The ELMS Assets purchased by Mullen consist of:
| ● | Registered intellectual property specifically listed in the Asset Purchase Agreement.
| ● | Inventory including vehicles finished and unfinished, finished goods, part modules component parts, raw materials, tooling, including but not limited to product-specific tooling, all manufacturing data that is required or reasonably helpful for the assembly of the Class 1 Electric commercial delivery vans and Class 3 Commercial Delivery Cab Chassis.
| ● | Real property located in Mishawaka, Indiana, together with all buildings, improvements, and fixtures.
| ● | Tangible personal property, including equipment, machinery, furniture, supplies, computer hardware, data networks, servers (with data and software), communication equipment, software, discs, and all other data storage media.
Mullen Indiana Real Estate LLC On November 9, 2022, the Company formed Mullen Indiana Real Estate LLC, a limited liability company in the State of Delaware to holds the acquired real property located in Mishawaka, IN. Debt and Equity Financing Exchange Agreement On October 14, 2022, the Company entered into an Exchange Agreement (the “Exchange Agreement”) with Esousa pursuant to which Esousa received a new secured convertible promissory note (the “Exchange Note”) in settlement of the outstanding amounts owned on the Amended and Restated Secured Convertible Note and Security Agreement, dated June 17, 2022 (“A&R Note”). The Exchange note had a principal amount of $12,945,914. In November 2022, the Company issued 62,048,666 shares to satisfy the outstanding amount on the Exchange Note. Settlement Agreement On September 30, 2022, Esousa informed the Company that its sustained economic damages due to its inability to receive common stock upon conversion notification (due to the insufficiency of authorized shares) and its internal standstill agreement not to sell any shares of the Company’s common stock. ​ On October 25, 2022, the Company’s Board of Directors approved the settlement agreement and authorized the issuance of 23,000,000 common stock shares to Esousa to settle any potential claims related to the Exchange Agreement. ​ Amendment No. 3 to Securities Purchase Agreement – Series D Preferred Stock ​ On November 14, 2022, the Company entered into Amendment No. 3 to the June 7, 2022 Securities Purchase Agreement (“Amendment No. 3”). The investors paid $150 million and in lieu of receiving shares of Series D Preferred Stock and Warrants, the investors received notes convertible into shares of the Company’s Common Stock (“Notes”). The convertible note bear and interest rate of 28%. ​ Upon conversion of a Note, the holder will receive Warrants exercisable for 185% of the Common Stock at an exercise price ranging from $0.25 to $0.46, subject to further adjustment as provided in the Warrant. The warrant cashless exchange formula is Net number + (A x B)/C = share of common stock, ​ A= the total number of shares with respect to which the Warrant is then being exercised B= Black Scholes Value (as defined in Section 16 of the Warrant). C= the Closing Bid Price of the Common Stock as of two (2) Trading Days prior to the time of such exercise (as such Closing Bid Price is defined in Section 16 of the Warrant). ​ Amendment No. 3 further provides that the remaining $90 million of the Commitment Amount shall be paid in two tranches, on January 24, 2023, and February 24, 2023, (each, a “Purchase Date”). The purchase price per share of Series D Preferred Stock will be the lower of (i) $1.27, the closing price of the Company’s stock on the date the Securities Purchase Agreement was executed, or (ii) the closing price of the Common Stock on the trading day immediately preceding the respective Purchase Date, subject to a floor price of $0.10 per share. For no additional consideration, for every share of Series D Preferred Stock purchased, such investor shall receive Warrants exercisable for 185% shares of Series D Preferred Stock purchased by the investors at an exercise price equal to the purchase price for shares of Series D Preferred Stock. Consummation of the transaction is dependent on certain conditions precedent. ​ Release of Reserved Shares On November 9, 2022, the Board approved for the release of 350,000,000 shares of common stock previously reserved under the 2022 Equity Incentive Plan. This did not result in changes to equity incentive commitments to employees and directors. ​ Registration Statement Form S-3 On October 14, 2022, the Company filed a Registration Statement on Form S-3, which became effective upon filing with the SEC. The Registration Statement registered the resale by certain stockholders of up to 900,000,000 shares of common stock, which consist solely of 23,000,000 shares of common stock, 350,000,000 shares of common stock issuable upon conversion of Series D Preferred Stock and 527,000,000 shares of common stock issuable upon exercise of outstanding warrants to purchase shares of common stock. ​ On November 21, 2022, the Company filed Registration Statement on Form S-3, which became effective upon filing with the SEC. The Company registered the resale by certain stockholders of 220,828,539 shares of common stock issuable upon conversion of convertible notes issued to the selling stockholders on November 15, 2022, pursuant to Amendment No. 3. The investors paid $150 million and in lieu of receiving shares of Series D Preferred Stock and warrants, the investors received the Notes, which outstanding principal and accrued but unpaid interest on the Notes convert into shares of common stock. ​ Preferred Series C and D Conversions and Warrants Exercises During the first quarter of the fiscal year ending September 30, 2023, the Company issued:
| ● | 150,256 shares of Common Stock upon conversion of 150,256 shares of Series C Preferred Stock;
| ● | 208,017,020 shares of Common Stock upon cashless exercise of Warrants to purchase 3,871,848 shares of Common Stock;
| ● | 3,996,554 shares of Common Stock upon conversion of 3,996,554 shares of Series D Preferred Stock; and
| ● | 206,667,644 shares of Common stock upon cashless exercise of Warrants to purchase 147,864,810 shares of Common Stock.
Firm Order Agreement On December 12, 2022, the Company entered into a Firm Order Agreement (the “Order Agreement”) with Randy Marion Isuzu, LLC (“RMI”) pursuant to which RMI agreed during the period ending on December 31, 2023 (unless terminated earlier pursuant to the terms of the Order Agreement) to purchase a total of not less than 6,000 units of the initial production 6,800 units of the vehicles manufactured and produced by the Company. Contemporaneous with the execution of the Order Agreement, RMI issued a purchase order for 1,000 vehicles and agreed to issue another purchase order on or before May 1, 2023, for no less than 1,000 vehicles. All additional purchase orders required to fulfill the order requirement are required to be issued no later than August 1, 2023. Products and vehicles with less than 500 miles that are not sold after 12 months can be returned to the Company at original pricing, subject to certain conditions. The Agreement may be terminated, among other reasons, if RMI ceases to be an authorized Mullen dealer or fails to function in the ordinary course of business or maintain its dealership facilities, voluntary or involuntary bankruptcy, RMI’s conduct adversely affects the Company, or an impairment of RMI’s reputation or financial standing. Series C Preferred Stock Dividend Waiver On January 13, 2023, the Company and holders of Series C Preferred Stock entered into a waiver agreement pursuant to which such holders irrevocably waived their right to receive any and all cumulative 15.0% per annum fixed dividends on such Preferred Stock, including all unpaid accrued and accumulated dividends, pursuant to the terms set forth in the Company’s Second Amended and Restated Certificate of Incorporation. Settlement Agreement– Warrants Exercise and Share Issuance ​ On January 13, 2023, the Company entered into Settlement Agreements and Releases with Acuitas Capital LLC, Jim Fallon and Mank Capital (the “Holders”) pursuant to which the Holders agreed to remit to the Company an aggregate of approximately $17.8 million (collectively, the “Settlement Payment”) for the erroneous issuance by the Company of an aggregate exercise of 1,660,988 warrants for approximately 100 million shares of common stock. These warrant exercises which led to over issuances of common stock occurred after September 30, 2022. ​ In consideration of the settlement, the Holders received the right to purchase (the “Settlement Additional Purchase Right”) additional shares of Series D Preferred Stock and warrants equal to $20 million as provided under the Securities Purchase Agreement, dated as of June 7, 2022 (as amended, the “Series D Securities Purchase Agreement”) of units, consisting of one share of Preferred Stock and 185% Warrants for each share of Preferred Stock issued. The Settlement Additional Purchase Right may be exercised by a Holder in accordance with the same terms that apply to Additional Purchases as described in the Series D Securities Purchase Agreement; provided, however, that if a Holder exercises its Settlement Additional Purchase Right, it shall receive Additional Warrants for shares of Common Stock in exchange for the issue of a promissory note that will bear an annual interest rate of 3.5%. ​ Settlement Agreement– Series D Securities Purchase Agreement ​ On January 13, 2023, the Company entered into a Settlement Agreement and Release in which investors waived the default prior to February 1, 2023 under the Series D Securities Purchase Agreement, and the Notes and the Warrants that were issued pursuant to Amendment No. 3. to the Series D Securities Purchase Agreement. In exchange, the Company grants the investors the right to purchase additional shares of Series D Preferred Stock and warrants in an amount equal to such investor’s pro rata portion of $10 million. ​ Warrants issued pursuant to Settlement Agreements ​ Warrants issued pursuant to the Settlement Additional Purchase Right and the Second Additional Purchase Right will provide for cashless exercise pursuant to which the holder will receive upon exercise a “net number” of shares of Common Stock determined according to the following formula: Net Number = (A x B) / C For purposes of the foregoing formula: A= The total number of shares with respect to which the Warrant is then being exercised. B= The Black Scholes Value (as described in the warrant). C= The Closing Bid Price of the Common Stock in the day prior the time of such exercise, but in any event not less than $0.10 per share of Common Stock, which will not be subject to adjustment. The exercise price and number of shares issuable upon exercise of the warrants will further be adjusted upon the occurrence of certain events and holders will be allowed to participate in certain issuances and distributions (subject to certain limitations and restrictions), including certain stock dividends and splits and distributions of assets. The warrants will provide for certain purchase rights whereby if the Company grants, issues or sells any options, convertible securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock, then the holder will be entitled to acquire such purchase rights which the holder could have acquired if the holder had held the number of shares of Common Stock acquirable upon complete exercise of the warrant. The Company would also agree not to enter into any fundamental, transaction, such as a merger, sale of more than 50% of the outstanding voting shares, sale of substantially all assets, or business combination, unless the successor entity assumes all of the obligations of the Company under the Warrants and the other transaction documents related to the warrants. The Company must reserve out of authorized and unissued shares a number of shares of Common Stock equal to 250% of the maximum number of shares of Common Stock that are issuable upon exercise of the warrants from time to time. If the Company fails to timely deliver shares upon exercise of the Warrant, the Company will be required to either (A) pay the holder for each trading day on which shares are not delivered 1% of the product of the number of shares not so issued multiplied by the closing sale price of the Common Stock on the trading day immediately preceding the required delivery date, or (B) if the holder purchases shares of Common Stock in anticipation of delivery of shares upon exercise of the Warrant, cash in an amount equal to holder’s total purchase price of such shares. The exercisability of the warrants may also be limited if, upon exercise, the holder and its affiliates would in aggregate beneficially own more than 9.99% of the common stock. ​ ​

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- Definition The entire disclosure for significant events or transactions that occurred after the balance sheet date through the date the financial statements were issued or the date the financial statements were available to be issued. Examples include: the sale of a capital stock issue, purchase of a business, settlement of litigation, catastrophic loss, significant foreign exchange rate changes, loans to insiders or affiliates, and transactions not in the ordinary course of business. + References Reference 1: http://www.xbrl.org/2003/role/disclosureRef -Publisher FASB -Name Accounting Standards Codification -Topic 855 -URI https://asc.fasb.org/topic&trid=2122774 Reference 2: http://www.xbrl.org/2003/role/disclosureRef -Publisher FASB -Name Accounting Standards Codification -Topic 855 -SubTopic 10 -Section 50 -Paragraph 2 -Subparagraph (a) -URI https://asc.fasb.org/extlink&oid=6842918&loc=SL6314017-165662 + Details
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