Exhibit 10.1


 


Execution Version


 


AMENDMENT NO. 3 


TO 


SECURITIES PURCHASE AGREEMENT 


 


THIS AMENDMENT NO. 3 TO SECURITIES PURCHASE AGREEMENT
(this “Amendment”) is made and entered into effective November 15, 2022 between Mullen Automotive Inc., a Delaware
corporation (the “Company”), and the Buyers listed on the signatures pages hereto (collectively, the “Buyers”
and each, a “Buyer”).Capitalized terms not defined herein shall have the same meaning as set forth in the Securities
Purchase Agreement (as defined below).


 


RECITALS:


 


A.           The
Company and the Buyers entered into the Securities Purchase Agreement dated as of June 7, 2022 (as amended, the “Securities
Purchase Agreement”), pursuant to which, upon the terms and subject to the conditions contained therein, the Buyers shall purchase,
solely upon the Company’s request, on the Purchase Date the Commitment Amount of shares of the Company’s Series D Preferred
Stock, par value $0.001 per share (the “Series D Preferred Stock”), and Warrants.


 


B.            The
Company and the Buyers desire to amend the Securities Purchase Agreement to provide that upon the Company may settle such purchase under
the Securities Purchase Agreement by delivering, in lieu of shares of Series D Preferred Stock, a convertible note in the form attached
hereto as Exhibit F, provided that the Purchase Amount paid by such Buyer is settled either as shares of Series D Preferred Stock
or as such note in such amounts as deemed appropriate by the Company in its sole discretion.


 


NOW, THEREFORE, for due
and adequate consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:


 


1.       The
Securities Purchase Agreement shall be amended to include a new Section 1(b) (and renumber the current Section 1(a) and Section 1(b) and
so forth), which shall read as follows:


 


Second Purchase.
Subject to the satisfaction (or waiver) of the terms and conditions set forth herein, the Company shall issue and sell to the Buyers,
and Buyers shall purchase from the Company, that number of Securities with an aggregate Purchase Price equal to One Hundred and Fifty
Million Dollars ($150,000,000) (the “Second Purchase Amount”), and in the amounts for each Buyer set forth on Exhibit
E, provided, however, that in lieu of delivering to Buyer the number of Purchase Shares and Warrants to which such Buyer is entitled,
the Company shall deliver to the Buyer a convertible note in the form attached hereto as Exhibit F (a “Note”)
such that the principal amount of the Note is equal to the Purchase Amount paid by such Buyer (the “Second Purchase”).
The Second Purchase Amount shall be paid and the issuance of the Note pursuant to the Second Purchase shall occur (the “Second
Closing”) on November 15, 2022 (the “Second Closing Date”).


 


2.       Section
1(c) of the Securities Purchase Agreement (formerly Section 1(b)) shall be amended and restated as follows:


 


Delivery
of Purchase Notice; Purchase of Securities. Subject to the satisfaction (or waiver) of the terms and conditions set forth
herein, on the Purchase Date (provided that if the Purchase Date is not a Trading Day, then the immediately following Trading Day
shall be the Purchase Date) the Company may, in its sole discretion, deliver a Purchase Notice to the Buyers pursuant to which the
Company shall issue and sell to the Buyers, and Buyers shall purchase from the Company, that number of Securities with an aggregate
Purchase Price equal to the Commitment Amount less the Initial Purchase Amount actually paid and less the Second Purchase Amount
actually paid, and in the amounts for each Buyer as set forth on the Purchase Notice (the “Purchase”). The
Purchase Notice shall be in the form attached hereto as Exhibit B and incorporated herein by reference (the “Purchase
Notice”). The Purchase Price set forth in the Purchase Notice shall be the Market Price, subject to a floor price of $0.10
per share, which floor price shall not be adjusted for stock dividends, stock splits, stock combinations and other similar
transactions pursuant to Section 10(l) herein. For no additional consideration, for every Purchase
Share purchased by a Buyer in the Purchase, such Buyer shall receive Warrants exercisable for 185% of shares of Common Stock at an
exercise price equal to the Market Price, subject to a floor price of $0.10 per share, which floor price, for the avoidance of
doubt, shall not be adjusted for stock dividends, subdivisions, or combinations. 


 






     


     


    

 


3.       The
Securities Purchase Agreement shall be amended to include a new Section 3(jj), which shall read as follows:


 


(jj) “Mirror”
Preferred Stock. The Series AA Preferred Stock, par value of $0.001 per share (the “Series AA Preferred Stock”),
was issued on November 14, 2022. The outstanding shares of Series AA Preferred Stock have been validly issued, are fully paid and non-assessable
and their issuance was in full compliance with the Delaware General Corporation Law and Nasdaq Listing Rules. All shares of Series AA
Preferred Stock shall be voted at the meeting of stockholders of the Company held for the purpose of obtaining stockholder approval of
the matters specified in the Certificate of Designation of Preferences, Rights and Limitations of the Series AA Preferred Stock (the “Specific
Matters”), and, if a majority of the shares of Series AA Preferred Stock are voted by the holders thereof at a duly called meeting
of the stockholders of the Company in favor of the Specific Matters, the Specific Matters shall be deemed approved by the stockholders
of the Company under the applicable provisions of the Delaware General Corporation Law and the Nasdaq Listing Rules.


 


4.       The
Securities Purchase Agreement shall be further amended to include a new Section 3(kk), which shall read as follows:


 


(kk) WKSI Status.
As of November 15, 2022, the Company qualifies, and, as of December 23, 2022, the Company will qualify as a “well-known seasoned
issuer” as that term is defined in Rule 405 under the Securities Act.


 


5.       The
Securities Purchase Agreement shall be amended to include a new Section 4(n), which shall read as follows:


 


Registration
of Shares After Initial Purchase.   No later than December 23, 2022, the Company shall file a Registration Statement with the
Commission registering a number of shares of Common stock issuable upon conversion of all Notes and Warrants Shares issuable upon conversion
or exercise of the Securities purchased in the Second Closing (the “Note Registration Statement”) equal to the number
of shares of Common Stock that are to be reserved for issuance pursuant to Section 4(e) hereof. The Company shall promptly notify the
Buyers via facsimile or by e-mail of the effectiveness of the Note Registration Statement on the same Trading Day that the Company telephonically
confirms effectiveness with the Commission. The Company shall keep the Note Registration Statement continuously effective until the date
on which the Securities are no longer outstanding;


 






     


     


    

 


6.       The
Securities Purchase Agreement shall be amended to include a new Section 4(o), which shall read as follows:


 


Stockholder
Approval and Proxy Statement.   No later than December 23, 2022, the Company shall obtain the approval of its stockholders and
file an amendment to its certificate of incorporation such that the number of authorized and unissued shares of Common Stock is equal
to 100% of the maximum number of Conversion Shares, 250% of the maximum number of Warrant Shares and 100% of the maximum number of shares
of Common stock issuable upon conversion of all Notes or otherwise issuable to satisfy the Company's obligations to issue shares of Common
Stock under (i) this Agreement, (ii) any outstanding shares of Series D Preferred Stock, (iii) any Warrants or (iv) any Notes.


 


7.       The
Securities Purchase Agreement shall be amended to include a new Section 4(p), which shall read as follows:


 


Right to Additional
Purchases.   From April 1, 2023 until June 30, 2023, Buyer shall have the right, but not the obligation, at any time from time
to time, in its sole and absolute discretion to purchase from the Company additional shares of Preferred Stock (the “Additional
Purchase Shares”) in an amount equal to such Buyer’s pro rata portion of $100,000,000 on the same terms and conditions
as applicable to the purchase and sale of the Purchase Shares (each an “Additional Purchase” and collectively “Additional
Purchases”). Buyer may exercise such right by the delivery of written notice to the Company, which notice shall include a statement
that the Buyer is exercising its right to an Additional Purchase, the amount of Additional Purchase Shares to be purchased by such Buyer,
and the date on which such purchase and sale shall occur (“Additional Purchase Closing”), which Additional Purchase
Closing shall occur within five (5) days following such notice by such Buyer, or such other date mutually agreed upon by the Buyer and
Company. The terms and conditions of any Additional Purchase shall be identical to the terms and conditions set forth in this Agreement
applicable to the sale of the Purchase Shares. Further, upon each Additional Purchase, Buyer shall receive a proportional amount of warrants
identical to the terms and conditions set forth in this Agreement (the “Additional Warrants”) including, without limitation,
for every Additional Purchase Share purchased by a Buyer in the Additional Purchase, such Buyer shall receive Additional Warrants exercisable
for 110% of shares of Common Stock at an exercise price equal to the Market Price as of the date of the Additional Purchase Closing and
that each Additional Warrant will be in the form attached hereto as Exhibit A, provided that the Expiration Date (as defined in
the Warrants) of the Additional Warrants shall be the fifth (5th) anniversary from the issuance date of such Additional Warrants. If Buyer
elects to execute an Additional Purchase pursuant to this Section 4(p), the Company agrees and covenants that for a period of 30 days
following the delivery of the Purchase Shares and Warrants issued in such Additional Purchase it will not effect a reverse stock split
of the Common Stock unless a reverse split is required to maintain Nasdaq listing requirements.


 


8.       The
Securities Purchase Agreement shall be amended to include a new Section 7(n), which shall read as follows:


 


 the Company
shall have filed with the Commission a preliminary proxy statement relating to the stockholder approval and the amendment to the Company’s
certificate of incorporation described in Section 4(o).


 


9.       The
Securities Purchase Agreement shall be amended to include a new Section 7(o), which shall read as follows:


 


 with regard
to the Purchase Date falling on January 24, 2023 and February 24, 2023, for the ten (10) Trading Days prior to such Purchase Date, the
average Daily Trading Volume of the Common Stock is greater than Twenty Five Million Dollars ($25,000,000).


 






     


     


    

 


10.       The
Securities Purchase Agreement shall be further amended such that references to the Purchase Date shall mean (i) with respect $45 million
of the Commitment Amount, January 24, 2023 and (ii) with respect to another $45 million of the Commitment Amount, February 24, 2023; provided,
however, that, upon delivery of a Purchase Notice by the Company to the Buyers which may or may not be exercised by the Company in its
sole discretion, on each Purchase Date the Company shall issue and sell to the Buyers, and Buyers shall purchase from the Company, that
number of Securities with an aggregate Purchase Price equal their pro rate portion of the Commitment Amount due on such Purchase Date;
provided, further, that if the Company chooses not to deliver a Purchase Notice and purchase Securities with regard to any Purchase Date,
then the Company shall not within ninety (90) days of such Purchase Date sell capital stock of the Company or securities convertible into
capital stock of the Company to any Person other than the Buyers, except pursuant to an agreement or instrument that is outstanding as
of the date of this Amendment.


 


11.       The
Securities Purchase Agreement shall be further amended such that references to the Securities shall also be references to Notes, as appropriate:


 


12.       Exhibit
A to the Securities Purchase Agreement shall be amended and restated as set forth in the attached Exhibit A to this Amendment.


 


13.       Exhibit
B to the Securities Purchase Agreement shall be amended and restated as set forth in the attached Exhibit B to this Amendment.


 


14.       Except
as modified by this Amendment, all other terms and conditions in the Securities Purchase Agreement shall remain in full force and effect
and this Amendment shall be governed by all provisions thereof.


 


15.       This
Amendment may be executed in separate counterparts, all of which taken together shall constitute a single instrument.


 


16.       This
Amendment shall be governed, construed and interpreted in accordance with the laws of the State of New York.


 


[Remainder of Page Intentionally Left Blank]


 






     


     


    

 


IN WITNESS WHEREOF,
Buyers and the Company has caused its signature page to this Amendment No. 3 to Securities Purchase Agreement to the be duly executed
as of the date first written above.


 


	 	COMPANY:
	 	MULLEN AUTOMOTIVE INC.
	 	 
	 	By:	/s/ David Michery
	 	Name:	David Michery
	 	Title:	Chief Executive Officer


 


	 	BUYERS:
	 	Esousa Holdings, LLC
	 	 
	 	By:	/s/ Michael Wachs
	 	Name:	Michael Wachs 
	 	Title:	Managing Member


 


	 	Acuitas Capital, LLC
	 	 
	 	By:	/s/ Terren Peizer
	 	Name:	Terren Peizer
	 	Title:	Chief Executive Officer


 


	 	Davis-Rice Pty Limited
	 	 
	 	By:	/s/ Timothy Davis-Rice
	 	Name:	Timothy Davis-Rice
	 	Title:	Director


 


	 	Digital Power Lending, LLC
	 	 
	 	By:	/s/ David J. Katzoff
	 	Name:	David J. Katzoff
	 	Title:	Manager


 


	 	Jess Mogul
	 	 
	 	 	/s/ Jess Mogul


 


	 	Jim Fallon
	 	 
	 	 	/s/ Jim Fallon


 


	 	Michael Friedlander
	 	 
	 	 	/s/ Michael Friedlander


 


[Signature page to
Amendment No. 3 to Securities Purchase Agreement]


 






     


     


    

 


EXHIBIT A


 


FORM OF WARRANT


 


Attached


 






     


     


    

 


EXHIBIT B


 


FORM OF PURCHASE NOTICE


 


TO: BUYERS LISTED BELOW


 


DATE: ____________________


 


We refer to the Securities Purchase Agreement,
dated June 7, 2022 (the "Agreement"), entered into by and between Mullen Automotive Inc. and you. Capitalized terms
defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.


 


We hereby give you notice that we require you to purchase the Commitment
Amount at the Purchase Price of $________ pursuant to the Agreement as set forth below:


 


	Name of Buyer	 	Shares of Series D
 Preferred Stock1	 	 	Warrants to purchase
 Common Stock2	 	 	Purchase
 Price	 
	Esousa Holdings, LLC	 	 	 	 	 	 	 	 	 	$	33,381,818.00	 
	Acuitas Capital, LLC	 	 	 	 	 	 	 	 	 	$	32,727,273.00	 
	Davis-Rice Pty Limited	 	 	 	 	 	 	 	 	 	$	16,363,635.00	 
	Digital Power Lending, LLC	 	 	 	 	 	 	 	 	 	$	4,909,091.00	 
	Jess Mogul	 	 	 	 	 	 	 	 	 	$	1,636,365.00	 
	Jim Fallon	 	 	 	 	 	 	 	 	 	$	818,182.00	 
	Michael Friedlander	 	 	 	 	 	 	 	 	 	$	163,636.00	 
	TOTAL	 	 	 	 	 	 	 	 	 	$	90,000,000.00	 



 


1. The terms of the Series D Preferred Stock
are set forth in the Certificate of Designation.


 


2. For no additional consideration,
for every Purchase Share purchased by Buyer under the terms of the Agreement Buyer shall receive Warrants exercisable for 185% of shares
of Common Stock at an exercise price of $______ per share.


 


The Warrants may be exercised, in whole
or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise, the Buyer may
elect to redeem the Warrants pursuant 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 applicable Warrant is then being exercised.


 


B= Black Scholes Value (as defined in
the applicable 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 the applicable Warrant),
but in any event not less than a floor price of $0.10, which floor price, for the avoidance of doubt, shall not be adjusted for stock
dividends, subdivisions, or combinations.


 






     


     


    

 


We certify that, as of the date hereof, the conditions set forth in
Section 7 of the Agreement are satisfied.


 


	MULLEN AUTOMOTIVE INC.	 
	 	 
	By:	                   	 
	Name:	 	 
	Title:	 	 



 






     


     


    

 


EXHIBIT E


 


SECOND PURCHASE AMOUNTS


 


	Name of Buyer	 	Purchase
 Price	 
	Esousa Holdings, LLC	 	$	55,636,363.00	 
	Acuitas Capital, LLC	 	$	54,545,456.00	 
	Davis-Rice Pty Limited	 	$	27,272,726.00	 
	Digital Power Lending, LLC	 	$	8,181,819.00	 
	Jess Mogul	 	$	2,727,274.00	 
	Jim Fallon	 	$	1,363,637.00	 
	Michael Friedlander	 	$	272,725.00	 
	TOTAL	 	$	150,000,000.00	 



 






     


     


    

 


EXHIBIT F


 


FORM OF NOTE


 


Attached