Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to, and on the terms and subject to the conditions of, the Restated Merger Agreement, Merger Sub will be merged with and into Mullen (the "Merger"), with Mullen continuing as the surviving corporation in the Merger.
On
Pursuant to the Restated Merger Agreement:
Subject to the Company's stockholders' approval, at the Merger effective time,
the Company will amend its certificate of incorporation to authorize a
sufficient number of shares of three series of preferred stock of the Company
with identical rights, preferences and privileges currently afforded holders of
Series A preferred stock, Series B preferred stock and Series C preferred Stock
of Mullen and change its name to "
Subject to the Company's stockholders' approval, at the Merger effective time:
? except for the shares of Mullen held by dissenting shareholders (the "Dissenting Shares"), each share of Mullen common stock, Mullen Series A preferred stock andMullen Series B preferred stock (all issued and outstanding shares of Mullen common stock, Series A preferred stock, Series B preferred stock and Series C preferred stock, being hereinafter collectively referred to as the "Mullen Shares") issued and outstanding immediately prior to the Merger effective time (other than anyMullen Shares to be canceled pursuant to the provisions of the Restated Merger Agreement and any Dissenting Shares) will be canceled and converted automatically into the right to receive that number of shares of the Company common stock, the Company newly designated Series A preferred stock, the Company newly designated Series B preferred stock and the Company newly designated Series C preferred stock, as the case may be (collectively the "Parent Shares"), as described on Schedule A to the Restated Merger Agreement; and ? a total of shares of the Company common stock as set forth and further described on Schedule B to the Restated Merger Agreement will be deposited into an escrow account to be released.
The Parties to the Restated Merger Agreement intend that the number of shares of the Company common stock outstanding immediately after the Merger effective time on a fully diluted and fully converted basis will not exceed 75,000,000, with 15% of such common stock outstanding immediately after the Merger effective time on a fully diluted and fully converted basis to be allocated to the persons that hold shares of the Company common stock immediately prior to the Merger effective time (the "Parent Pre-Merger Stockholders") (subject to upward adjustment described below).
Any
2
--------------------------------------------------------------------------------
The Parties to the Restated Merger Agreement intend that, at the Merger effective time, (i) all current directors of the Company will resign, and the individuals nominated by Mullen will become the directors of the Company from and after the Merger effective time; and (ii) all current officers of the Company will resign and the individuals nominated by Mullen will become the officers of the Company from and after the Merger effective time.
As soon as practicable following the Merger, the Company will cause its current ticker symbol "NETE" to be changed to such ticker symbol as Mullen will select after the date hereof upon Nasdaq's approval of the Company's listing application.
The Parties to the Restated Merger Agreement intend that, prior to the Merger effective time but, subject to and after the Company's stockholders' approval, the Company will divest itself of its existing business operations to another party, and will cause such party to assume all liabilities of the Company directly related to its operations of its existing business immediately prior to the closing of such divestiture (the "Divestiture").
The consummation of the Merger is subject to (i) the Merger and the shares of
Company common stock to be issued in connection with the Merger and other
transactions contemplated by the Restated Merger Agreement being approved and
authorized for the listing on Nasdaq and (ii) the Company's and its subsidiaries
aggregate cash and cash equivalents plus amounts lent by the Company to Mullen
pursuant to the Restated Merger Agreement less accounts payable and debt
(exclusive of unfunded warrant proceeds) is
The Company and Mullen may agree that the Company may raise additional capital
beyond the Net Cash Position. In such event, Mullen and its pre-Merger
shareholders shall solely absorb all of the dilution from such additional
capital raise beyond the Net Cash Position for purposes of allocating ownership
between the Company pre-Merger stockholders, on the one hand, and all other
parties, on the other hand. By way of example, if there would have been
75,000,000 shares of the Company common stock outstanding on a fully-diluted and
converted basis prior to the additional capital raised beyond the Net Cash
Position, and the Company issues 3,000,000 shares of the Company common stock to
raise
After Mullen's completion and delivery to the Company, of the audited financial statements for Mullen and its subsidiaries and affiliates required to be included in a registration statement, the Company intends to prepare and file with the Commission a registration statement on Form S-4 (together with all amendments thereto, the "Registration Statement") in which the proxy statement will be included as a part of the prospectus, in connection with the registration under the Securities Act of the shares of Parent Shares to be issued in connection with the transactions contemplated in the Restated Merger Agreement.
The Parties to the Restated Merger Agreement intend that the proxy statement will be sent to the stockholders of the Company relating to the special meeting of the Company stockholders to be held to consider, among other things, approval and adoption, as applicable, of (1) the Restated Merger Agreement, the Merger (including the issuance and reservation for issuance, as applicable, of Parent Shares as more particularly described in the Restated Merger Agreement), the Divestiture, the amendment to the Company's Certificate of Incorporation, the issuance of Parent Shares in furtherance of the Private Placement, and the other transactions contemplated by this Agreement requiring such stockholders approval, including the reservation for issuance, subject to and contingent upon consummation of the Merger and the Company's stockholders approval, in excess of the limitation set forth in the applicable Nasdaq rules, of the Company's common shares issuable upon conversion of certain notes and warrants that, subject to and after the consummation of the Merger, will become convertible into the Company's common shares; and (2) any other proposals the parties deem necessary to effectuate the Merger and the other transactions contemplated in the Restated Merger Agreement.
3
--------------------------------------------------------------------------------
Consummation of the Merger, the Divestiture, the Private Placement and the other transactions contemplated in the Restated Merger Agreement, is subject to customary conditions including, among others, the approval of the Company's stockholders and listing of the Company shares of common stock on the Nasdaq Capital Market after the change of control due to the Merger. In addition, the obligation of each party to consummate the Merger is also conditioned on the other party's representations and warranties being true and correct (subject to certain materiality qualifications) and the other party having performed in all material respects its obligations under the Restated Merger Agreement. The parties' obligations to consummate the Merger are further subject to the absence of a "Material Adverse Effect" (as defined in the Restated Merger Agreement) with respect to Mullen, on the one hand, and the Company, on the other hand, since the date of the Restated Merger Agreement.
The parties to the Restated Merger Agreement agreed that Mullen will pay an
agreed sum of
Each of the Company, Mullen and Merger Sub has made customary representations and warranties and agreed to customary pre-closing covenants in the Restated Merger Agreement. In addition, each of Mullen and the Company has agreed to other customary pre-closing covenants, including, among others, to not take any actions that would reasonably be likely to prevent, interfere with or materially delay the Merger.
The Restated Merger Agreement also provides that the Company shall not (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries, proposals or indications of interest regarding an acquisition proposal; subject to certain exceptions, engage or participate in any negotiations with any third party concerning any acquisition proposal; or subject to certain exceptions provide any information to any third party relating to any acquisition proposal and (ii) subject to certain exceptions, withhold or withdraw the recommendation of its board of directors that the holders of the Company Shares adopt the Restated Merger Agreement.
The Restated Merger Agreement contains termination rights for each of the
Company and Mullen, including, among others, (i) in the event that the Merger
has not been consummated by
In the event of a termination of the Restated Merger Agreement under specified circumstances, Mullen will be required to pay the Company, and the Company will . . .
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
2.1 Amended and Restated Agreement and Plan of Merger, dated as of
2021, amongNet Element, Inc. ,Mullen Technologies, Inc. ,Mullen Acquisition, Inc. andMullen Automotive, Inc.
*Certain schedules (or similar attachments) to the Amended and Restated
Agreement and Plan of Merger have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The registrant agrees to furnish copies of any such schedules
(or similar attachments) to the
6
--------------------------------------------------------------------------------
© Edgar Online, source