UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C
Information Statement Pursuant to Section 14(c) of
the Securities Exchange Act of 1934
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Preliminary Information Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)) |
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Definitive Information Statement |
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| Nxu, Inc. |
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| Payment of Filing Fee (Check the appropriate box): |
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No fee required. |
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Fee paid previously with preliminary materials. |
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Fee computed on table in exhibit required by Item 25(b) of Schedule 14A (17 CFR 240.14a-101) per Item 1 of this Schedule and Exchange Act Rules 14c-5(g) and 0-11. |
Nxu, Inc.
1828 N. Higley Rd., Suite 116
Mesa, Arizona 85205
NOTICE OF STOCKHOLDER ACTION BY WRITTEN CONSENT
BY HOLDERS OF A MAJORITY OF THE AGGREGATE VOTING POWER
OF ALL OUTSTANDING SHARES OF CAPITAL STOCK OF NXU, INC.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
To the Stockholders of Nxu, Inc.:
This notice and the accompanying Information
Statement are being furnished to the stockholders of record, as of the close of business on November 2, 2023 (the “Record Date”),
of Class A common stock, par value $0.0001 per share (“Class A common stock”) and Class B common stock, par value $0.0001
per share (“Class B common stock”) of Nxu, Inc., a Delaware corporation (“we,” “our” or the “Company”),
The accompanying Information Statement is being furnished to inform
you of action taken by written consent on November 2, 2023 (the “Written Consent”), by the holders of a majority of the voting
power of the Company’s issued and outstanding capital stock entitled to vote thereon (the “Consenting Stockholders”),
approving an amendment to the Company’s Certificate of Incorporation (the “Certificate of Incorporation”) to effect
a reverse stock split of the Company’s Class A common stock and Class B common stock by a ratio of any whole number in the range
of 1-for-50 to 1-for-500, with such ratio to be determined in the discretion of the Company’s Board of Directors (the “Board”)
and with such action to be effected at such time and date as determined by the Board on or prior to __________, 2024 (the “Reverse
Stock Split”).
As of the close of business on the Record
Date, the Consenting Stockholders together owned an aggregate of 2,823,911 shares of Class A common stock and 36,075,372 shares of Class
B common stock, representing approximately 62% of the voting power of the Company’s issued and outstanding capital stock, on a combined
basis.
The purpose of this notice and the accompanying
Information Statement is to (1) inform the Company’s stockholders of the action described above before it takes effect in accordance
with Rule 14c-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (2) provide the
notice required under Section 228(e) of the Delaware General Corporation Law (the “DGCL”) and Article XII of the Company’s
Certificate of Incorporation. In accordance with Rule 14c-2 under the Exchange Act, the actions described herein will become effective
no earlier than the 20th calendar day after the date on which the Information Statement has been provided to the Company’s stockholders.
This notice and the accompanying Information Statement are being mailed on or about _________, 2023, to the Company’s stockholders
of record as of the Record Date.
The Written Consent that we have received
approving the actions described herein constitutes the only stockholder approval required under DGCL, the Certificate of Incorporation,
and the bylaws of the Company (the “Bylaws”). Accordingly, the Reverse Stock Split will not be submitted to the other stockholders
of the Company for a vote. The Board is not soliciting your proxy or consent in connection with the Reverse Stock Split and no proxies
or consents are being requested from stockholders. Any proxies or consents provided will be disregarded and have no effect.
THE INFORMATION STATEMENT IS FOR YOUR
INFORMATION ONLY. YOU DO NOT NEED TO DO ANYTHING IN RESPONSE TO THE INFORMATION STATEMENT. THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS
AND NO STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED IN THE INFORMATION STATEMENT. WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
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By Order of the Board of Directors of Nxu, Inc. |
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/s/ Mark Hanchett |
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Chairman and Chief Executive Officer |
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Mesa, Arizona |
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Dated: ___________, 2023 |
Nxu, Inc.
1828 N. Higley Rd., Suite 116
Mesa, Arizona 85205
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
ABOUT THIS INFORMATION STATEMENT
General
This Information Statement is being furnished by Nxu, Inc., a Delaware
corporation (“we,” or the “Company”), in connection with action taken by written consent on November 2, 2023 (the
“Written Consent”), by the holders of a majority of the voting power of the Company’s issued and outstanding capital
stock entitled to vote thereon (the “Consenting Stockholders”), approving an amendment (the “Amendment”) to the
Company’s Certificate of Incorporation (the “Certificate of Incorporation”), to effect a reverse stock split of the
Company’s Class A common stock, par value $0.0001 per share (the “Class A common stock”), and the Company’s Class
B common stock, par value $0.0001 per share (the “Class B common stock”), by a ratio of any whole number in the range of 1-for-50
to 1-for-500, with such ratio to be determined in the discretion of the Company’s Board of Directors (the “Board”) and
with such action to be effected at such time and date as determined by the Board on or prior to ____________, 2024 (the “Reverse
Stock Split”).
On November 2, 2023, the Consenting Stockholders,
who together owned, as of the close of business on November 2, 2023 (the “Record Date”), an aggregate of 2,823,911 shares
of Class A common stock and 36,075,372 shares of Class B common stock, representing approximately 62% of the voting power of the Company’s
issued and outstanding capital stock, executed and delivered to the Company the Written Consent approving the Amendment to effect the
Reverse Stock Split. The “Consenting Stockholders,” which are our controlling stockholders, are Mark Hanchett, Chairman and
Chief Executive Officer of the Company, and Annie Pratt, President of the Company.
The form of Amendment is attached to this
Information Statement as Appendix A.
The purpose of this notice and the accompanying
Information Statement is to (1) inform the Company’s stockholders of the action described above before it takes effect in accordance
with Rule 14c-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (2) provide the
notice required under Section 228(e) of the Delaware General Corporation Law (the “DGCL”) and Article XII of the Company’s
Certificate of Incorporation. In accordance with Rule 14c-2 under the Exchange Act, the actions described herein will become effective
no earlier than the 20th calendar day after the date on which this Information Statement has been provided to the Company’s stockholders.
The Information Statement is being mailed on or about ____________, 2023, to the Company’s stockholders of record as of the close
of business on the Record Date.
Vote Required
As the matters set forth in this Information
Statement have been duly authorized and approved by the written consent of the holders of at least a majority of the voting power of the
Company’s issued and outstanding capital stock entitled to vote thereon, we are not seeking any consent, authorization or proxy
from you.
Section 228 of the DGCL and Article XII
of the Certificate of Incorporation provide that any action required or permitted to be taken by the stockholders of the Company may be
effected by the consent in writing of the holders of outstanding capital stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Pursuant
to the Certificate of Incorporation, approval of the Reverse Stock Split requires the vote of a majority of the votes cast of the issued
and outstanding shares of Class A common stock and Class B common stock present in person or represented by proxy at the meeting and voting
affirmatively or negatively on such matter, voting together as a single class.
Pursuant to the Certificate of Incorporation,
holders of the Company’s Class A common stock are entitled to one vote per share of Class A common stock and holders of the Company’s
Class B common stock are entitled to ten votes per share of Class B common stock on all matters on which stockholders generally are entitled
to vote. As of the close of business on the Record Date, 222,415,409 shares of Class A common stock and 36,075,372 shares of Class B common
stock were issued and outstanding. As of the close of business on the Record Date, the Consenting Stockholders together owned an aggregate
of 2,823,911 shares of Class A common stock and 36,075,372 shares of Class B common stock, representing approximately 62% of the voting
power of the Company’s issued and outstanding capital stock, on a combined basis. Accordingly, the Written Consent executed and
delivered to the Company by the Consenting Stockholders pursuant to Section 228 of the DGCL, Article IV(a)(4) of the Certificate of Incorporation,
and Article XII of the Certificate of Incorporation is sufficient to approve the Reverse Stock Split without any further stockholder vote
or other action.
Notice Pursuant to Section 228(e) of the DGCL and Article
XII of the Certificate of Incorporation
Pursuant to Section 228(e) of the DGCL,
the Company is required to provide prompt notice of the taking of a corporate action by written consent to stockholders of the Company
as of the Record Date who have not consented in writing to such action and who would have been entitled to notice of the meeting if the
action had been taken at a meeting. This Information Statement serves as the notice required by Section 228(e) of the DGCL.
No Dissenter’s Rights of Appraisal
None of the DGCL, the Certificate of Incorporation
or the Bylaws provides for dissenters’ rights of appraisal in connection with the Reverse Stock Split.
Expenses
We will bear all expenses in connection with the distribution
of this Information Statement.
AMENDMENT TO THE CERTIFICATE OF INCORPORATION TO EFFECT A
REVERSE STOCK SPLIT OF CLASS A COMMON STOCK AND CLASS B COMMON STOCK
On November 2, 2023, the Board approved, and recommended that the stockholders
of the Company entitled to vote thereon, approve, via written consent, the Amendment to the Certificate of Incorporation to effect a reverse
stock split of the issued and outstanding Class A common stock and Class B common stock, by a ratio of any whole number in the range of
1-for-50 to 1-for-500, with such ratio to be determined at the discretion of the Board and with such action to be effected at such time
and date as determined by the Board on or prior to __________, 2024. On November 2, 2023, the Consenting Stockholders (i.e., the holders
of a majority of the voting power of the Company’s issued and outstanding capital stock entitled to vote thereon) approved the Reverse
Stock Split by means of the Written Consent.
The same ratio will be used to effect a
reverse stock split of both the Class A common stock and the Class B common stock; accordingly, all stockholders will be affected by the
Reverse Stock Split uniformly. The Reverse Stock Split will not change the number of authorized shares of Class A common stock or Class
B common stock, the terms of the Company’s common stock or the relative voting power of the Company’s stockholders. Because
the number of authorized shares will not be reduced, the number of authorized but unissued shares of the Company’s common stock
will materially increase and will be available for reissuance by the Company.
The Board has the authority, but not the
obligation, to elect, in its sole discretion, without further action on the part of its stockholders and as it determines to be in the
Company’s and its stockholders’ best interest, to effect the Reverse Stock Split and, if so, to select the Reverse Stock Split
ratio from within the approved range of ratios described above, each ratio within such range having been approved by the Consenting Stockholders.
The Consenting Stockholders believe that enabling the Board to decide whether and when to effect the Reverse Stock Split and to set the
ratio within the stated range without further action by the Company’s stockholders will provide the Company with the flexibility
to implement the Reverse Stock Split in a manner designed to maximize the anticipated benefits for its stockholders. In making these decisions,
the Board may consider, among other things, factors such as:
| · | the continued listing requirements of the Nasdaq Capital Market (“Nasdaq”), including the
requirement that, subject to limited exceptions, listed companies maintain a minimum bid price of at least $1.00; |
| · | the number of outstanding shares of the Company’s common stock; |
| · | the historical trading price and trading volume of the Class A common stock; |
| · | the then-prevailing trading price and trading volume of the Class A common stock and the anticipated
impact of the Reverse Stock Split on the trading market for the Class A common stock; |
| · | the anticipated impact of a particular ratio on the Company’s ability to reduce administrative
and transactional costs; and |
| · | prevailing general market and economic conditions. |
If the Board determines to effect the Reverse
Stock Split, the Company will file the Amendment with the Secretary of State of the State of Delaware. The effective time of the Reverse
Stock Split (the “Effective Time”), if effected, will be the date and time on which the Amendment is filed with the Secretary
of State of the State of Delaware (subject to any specific future time and date of effectiveness stated therein) in accordance with Section
103 of the DGCL, but in no case will the Effective Time be earlier than the 20th calendar day after the date on which this Information
Statement has been provided to the Company’s stockholders.
This description of the Amendment is qualified
in its entirety by reference to the complete text of the Amendment, which is attached as Appendix A to this Information Statement
and incorporated herein by reference. You are strongly encouraged to read the actual text of the Amendment. The proposed Amendment is
subject to revision for such changes as may be required by the DGCL and any other changes consistent with the approved terms of the Reverse
Stock Split, as approved by the Board and the Consenting Stockholders, that the Company may deem necessary or appropriate.
If the Reverse Stock Split is effected by the Board, no fewer than
50 and no more than 500 shares of issued and outstanding Class A common stock, as determined by the Board, will be combined into one share
of Class A common stock; and shares of issued and outstanding Class B common stock will be combined at the same ratio. No fractional shares
will be issued in the Reverse Stock Split. Accordingly, any fractional share of common stock to which a holder is entitled resulting from
of the Reverse Stock Split will be rounded up to the nearest whole share of common stock. See the section below titled “Fractional
Shares” for more information. The Amendment, if effected, will include only the reverse stock split ratio determined by the Board
to be in the best interest of the Company and its stockholders and all the other ratios within the range approved by the Consenting Stockholders
will be abandoned.
Whether or not the Amendment is filed and
the exact timing of the filing of the Amendment that will effect the Reverse Stock Split will be determined by the Board in its sole discretion.
At any time prior to the effectiveness of the filing of the Amendment with the Delaware Secretary of State, notwithstanding authorization
of the Amendment by the Company’s stockholders, the Board may abandon the Amendment without further action by the Company’s
stockholders. If the Board does not effect the Reverse Stock Split prior to __________, 2024, the Board will abandon the Reverse Stock
Split.
Reasons for the Reverse Stock Split
Nasdaq Listing Requirements
The Company believes the Reverse Stock Split
is in the Company’s and its stockholders’ best interest, primarily because it may increase the per share trading price of
the Class A common stock and enable continued listing on Nasdaq under the symbol “NXU.”
As previously disclosed, on April 11, 2023,
the Company received notice from Nasdaq that the Company was not in compliance with the continued listing standard set forth in Nasdaq
Rule 5550(a)(2) because the closing bid price of the Company’s Class A common stock was below $1.00 per share for 30 consecutive
business days and that the Company had 180 calendar days to regain compliance with Nasdaq’s minimum bid price requirement (the “Minimum
Bid Requirement”). In addition, on August 29, 2023, the Company received a notice from Nasdaq stating that the Company’s reported
stockholders’ equity no longer meets the minimum stockholders’ equity of $2,500,000 required (the “Minimum Stockholder’s
Equity Requirement”) for continued listing of the Company’s Class A common stock on Nasdaq under Nasdaq Listing Rule 5550(b)(1).
On October 10, 2023, the Company received a notice from Nasdaq stating that it did not regain compliance with the Minimum Bid Requirement
within the 180-day period provided and is not eligible for a second 180-day period because the Company does not comply with the $5 million
initial listing requirement for Nasdaq. As a result, Nasdaq determined that, unless the Company timely requested a hearing before the
Nasdaq Hearings Panel (the “Panel”), its Class A common stock would be suspended. the Company timely requested a hearing,
and on October 17, 2023, it received formal notice from Nasdaq that such hearing is scheduled to be held on December 14, 2023. The delisting
action has been stayed, pending a final written decision by the Panel. At the hearing, the Company will present a plan to the Panel that
includes a discussion of the events that it believes will enable it to regain compliance.
If Nasdaq approves the Company’s request
to extend the period to regain compliance with the Minimum Bid Requirement following the hearing, the Company expects that in order to
regain compliance with the Minimum Bid Requirement, the Class A common stock must have a closing bid price of at least $1.00 for 10 consecutive
business days by an extended deadline as determined by Nasdaq. Failure to regain compliance during by this extended deadline could result
in delisting. Furthermore, even if the Company regains compliance with the Minimum Bid Requirement, the Company may be unable to meet
the Minimum Stockholder’s Equity Requirement, which may result in the delisting of the Class A common stock from Nasdaq. Any delisting
may cause the Class A common stock to be subject to “penny stock” regulations promulgated by the Securities and Exchange Commission
(the “SEC”). Under such regulations, broker-dealers would be required to, among other things, comply with disclosure and special
suitability determinations prior to the sale of shares of Class A common stock. If the Class A common stock becomes subject to these regulations,
the market price of the Class A common stock and the liquidity thereof would be materially and adversely affected. Absent other factors,
the Company believes that reducing the number of outstanding shares of Class A common stock is a potentially effective means to increase
the per share market price of the Class A common stock.
If the Class A common stock is delisted
from Nasdaq, the Company believes that the Class A common stock would likely be eligible to be quoted over the counter on an inter-dealer
electronic quotation and trading system operated by OTC Markets Group. These markets are generally considered not to be as efficient as,
and not as broad as, Nasdaq. Selling shares of Class A common stock on these markets could be more difficult because smaller quantities
of shares would likely be bought and sold, and transactions could be delayed. In addition, in the event the Class A common stock is delisted,
broker-dealers would have certain regulatory burdens imposed upon them, which may discourage broker-dealers from effecting transactions
in the Class A common stock, further limiting the liquidity of the Class A common stock. These factors could result in lower prices and
larger spreads in the bid and ask prices for the Class A common stock.
A delisting from Nasdaq and continued or
further declines in the price of the Class A common stock could also greatly impair the Company’s ability to raise or access additional
necessary capital through equity or debt financing, or use shares for business development or other corporate initiatives, and could significantly
increase the ownership dilution to stockholders caused by the issuance of equity in financing or other transactions.
The Board believes that the proposed Reverse
Stock Split would be a potentially effective means for the Company to facilitate compliance with the Minimum Bid Requirement and to avoid
the consequences of the Class A common stock being delisted from Nasdaq by producing the immediate effect of increasing the bid price
of the Class A common stock.
General Investment Considerations
Additionally, the Company believes that
the Reverse Stock Split, if effected, could make the Class A common stock more attractive to a broader range of institutional and other
investors, as the Company has been advised that the current market price of the Class A common stock may affect its acceptability to certain
institutional investors and other members of the investing public. In particular, many brokerage houses, institutional investors and investment
funds have internal policies and practices that may prohibit them from investing in low-priced stocks or discourage individual brokers
from recommending low-priced stocks to their customers. Moreover, because brokers’ commissions on low-priced stocks generally represent
a relatively high percentage of the stock price, transaction costs would represent a higher percentage of total share value, which could
result in decreased trading volume and increased volatility in the trading price of the Class A common stock. The Company believes that
the Reverse Stock Split could make the Class A common stock a more attractive and cost-effective investment for many investors, which
could enhance the liquidity of the Class A common stock.
Risks and Potential Disadvantages Associated with a Reverse
Stock Split
The Board believes that the Reverse Stock
Split is a potentially effective means to increase the per share market price of the Class A common stock and thus enable compliance with
Nasdaq’s Minimum Bid Requirement. However, there are a number of risks and potential disadvantages associated with a reverse stock
split, including the following:
| · | The Board cannot predict the effect of a reverse stock split upon the market
price for the Class A common stock, and the success of similar reverse stock splits for companies in like circumstances has varied. Some
investors may have a negative view of a reverse stock split. Recently, the market price of the Class A common stock has declined substantially,
and the equity markets have experienced and continue to experience substantial volatility due to, among other factors, volatility in the
financial sector, the COVID-19 global pandemic and the wars in Ukraine and Israel. The principal purpose of the Reverse Stock Split would
be to increase the trading price of the Class A common stock to meet the Minimum Bid Requirement. However, the effect of the Reverse Stock
Split, if effected, on the market price of the Class A common stock cannot be predicted with any certainty, and the Company cannot assure
you that the Reverse Stock Split will accomplish this objective for any meaningful period of time, or at all. Even if the Reverse Stock
Split has a positive effect on the market price for the Class A common stock, performance of the Company’s business and financial
results, general economic conditions and the market perception of the Company’s business, and other adverse factors which may not
be in the Company’s control, could lead to a decrease in the price of the Class A common stock following the Reverse Stock Split. |
| · | Although the Board believes that a higher stock price may help generate
the interest of new investors, the Reverse Stock Split may not result in a per-share price that will successfully attract certain types
of investors and such resulting share price may not satisfy the investing guidelines of brokerage houses, institutional investors or investment
funds. Further, other factors, such as the Company’s financial results, market conditions and the market perception of the Company’s
business, may adversely affect the interest of new investors in the Class A common stock. As a result, the trading liquidity of the Class
A common stock may not improve as a result of the Reverse Stock Split and there can be no assurance that the Reverse Stock Split, if completed,
will result in the intended benefits described above. |
| · | Even if the Reverse Stock Split does result in an increased market price
per share of the Class A common stock, the market price per share following such Reverse Stock Split may not increase in proportion to
the reduction of the number of shares of Class A common stock outstanding before the implementation of the Reverse Stock Split. Accordingly,
even with an increased market price per share, the total market capitalization of the shares of Class A common stock after the Reverse
Stock Split could be lower than the total market capitalization before the Reverse Stock Split. Also, even if there is an initial increase
in the market price per share of the Class A common stock after the Reverse Stock Split, the market price many not remain at that level
due to factors described in this Information Statement or other factors, including the risks described in the Company’s Annual Report
on Form 10-K for the year ended December 31, 2022, as updated in reports the Company subsequently files with the SEC. |
| · | If the Reverse Stock Split is effected and the market price of the Class
A common stock then declines, the percentage decline as an absolute number and as a percentage of the Company’s overall market capitalization
may be greater than would occur in the absence of the Reverse Stock Split due to decreased liquidity in the market for the Class A common
stock. Accordingly, the total market capitalization of the Class A common stock following the Reverse Stock Split could be lower than
the total market capitalization before the Reverse Stock Split. |
Effects of the Reverse Stock Split
The principal result of the Reverse Stock Split will be to decrease
proportionately the number of outstanding shares of Class A common stock and Class B common stock based on the reverse stock split ratio
determined by the Board within the approved range of 1-for-50 and 1-for-500. The Class A common stock is currently registered under Section
12 of the Exchange Act, and the Company is subject to the periodic reporting and other requirements of the Exchange Act and the rules
and regulations promulgated thereunder. The Reverse Stock Split would not affect the registration of the Class A common stock under the
Exchange Act. Following the Reverse Stock Split, if the Company meets the Minimum Bid Requirement and the Minimum Stockholder’s
Equity Requirement, it is expected that the Class A common stock would continue to be listed on Nasdaq under the symbol “NXU.”
Following the Reverse Stock Split, the Class A common stock would have a new Committee on Uniform Securities Identification Procedures
(“CUSIP”) number, which is a number used to identify equity securities. Stock certificates with the older CUSIP number will
need to be exchanged for stock certificates with the new CUSIP number by following the procedures described below.
The Class B common stock is neither registered
under the Exchange Act nor listed on a stock exchange.
The actual number of shares issued after
giving effect to the Reverse Stock Split, if effected, would depend on the reverse stock split ratio that is ultimately selected by the
Board. The Reverse Stock Split would affect all holders of the Company’s common stock uniformly and would not affect any stockholder’s
percentage ownership interest or proportionate voting power in the Company, except that, as described below in the section titled “Fractional
Shares,” any fractional share of common stock to which a holder is entitled as a result of the Reverse Stock Split would be rounded
up to the nearest whole share of common stock.
If effected, the Reverse Stock Split may
result in some stockholders owning “odd lots” of fewer than 100 shares of Class A common stock or Class B common stock. Odd
lot shares may be more difficult to sell, and brokerage commissions and other costs of transactions in odd lots are generally somewhat
higher than the costs of transactions in “round lots” of even multiples of 100 shares.
Depending on the ratio for the Reverse Stock Split determined by the
Board, a minimum of 50 and a maximum of 500 shares of existing Class A common stock would be combined into one new share of Class A common
stock, and a minimum of 50 and a maximum of 500 shares of existing Class B common stock would be combined into one new share of Class
B common stock. The table below shows, as of November 2, 2023, the number of outstanding shares of Class A common stock and Class B common
stock that would result from the listed hypothetical reverse stock split ratios (without giving effect to rounding for fractional shares):
| | |
Current | | |
After Reverse
Stock Split if 1-for-
50 Ratio is
Selected | | |
After
Reverse
Stock Split if 1-for-
100 Ratio is
Selected | | |
After
Reverse
Stock Split if 1-for-
200 Ratio is
Selected | | |
After Reverse
Stock Split if 1-for-
300 Ratio is
Selected | | |
After Reverse
Stock Split if 1-for-
400 Ratio is
Selected | | |
After Reverse
Stock Split if 1-for-
500 Ratio is
Selected | |
| Class A common stock | |
| 222,415,409 | | |
| 4,448,308 | | |
| 2,224,154 | | |
| 1,112,077 | | |
| 741,384 | | |
| 556,038 | | |
| 444,830 | |
| Class B common Stock | |
| 36,075,372 | | |
| 721,507 | | |
| 360,753 | | |
| 180,376 | | |
| 120,251 | | |
| 90,188 | | |
| 72,150 | |
Although the Reverse Stock Split will not
have any dilutive effect on the Company’s stockholders, since the Reverse Stock Split will not change the number of authorized shares
of Class A common stock or Class B common stock, it would reduce the proportion of shares owned by the Company’s existing stockholders
relative to the number of shares authorized for issuance, giving the Board an effective increase in the authorized shares available for
issuance, in its discretion. The Board from time to time may deem it to be in the best interest of the Company and its stockholders to
enter into transactions and other ventures that may include the issuance of shares of common stock. If the Board authorizes the issuance
of additional shares subsequent to the Reverse Stock Split, the dilution to the ownership interest of the Company’s existing stockholders
may be greater than would occur had the Reverse Stock Split not been effected. Many stock issuances not involving equity compensation
do not require stockholder approval, and the Board generally seeks approval of its stockholders in connection with a proposed issuance
only if required at that time.
A reverse stock split would not have any
effect on the number of authorized shares of the Company’s preferred stock, par value of $0.0001 per share, which would remain at
10,000,000 shares. Currently no shares of preferred stock are outstanding.
The Reverse Stock Split is not intended
as, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 promulgated under the Exchange Act.
The Reverse Stock Split is not intended to modify the rights of existing stockholders in any material respect.
Fractional Shares
No fractional shares will be issued in the
Reverse Stock Split. If the Reverse Stock Split is effected, each fractional share of Class A common stock or Class B common stock, as
applicable, will be rounded up to the nearest whole share of Class A common stock or Class B common stock, respectively. Accordingly,
stockholders of the Company who otherwise would be entitled to receive a fractional share of common stock in the Reverse Stock Split because
they hold a number of shares not evenly divisible by the Reverse Stock Split ratio will instead automatically be entitled to receive one
whole additional share of Class A common stock or Class B common stock, as applicable. Because any fractional shares will be rounded up
to the next nearest whole share, any reverse stock split is not expected to affect the number of holders of the Company’s common
stock.
Potential Anti-takeover Effects of the Reverse Stock Split
Although the Reverse Stock Split has been
prompted by business and financial considerations and not by the threat of any known or threatened hostile takeover attempt, stockholders
should be aware that the Reverse Stock Split will have the effect of increasing the number of authorized but unissued shares of Class
A common stock and Class B common stock following the Reverse Stock Split, and thus could facilitate future attempts by the Company to
oppose changes in control of the Company and perpetuate the Company's management, including transactions in which the stockholders might
otherwise receive a premium for their shares over then current market prices. The Company cannot provide assurances that any such transactions
will be consummated on favorable terms or at all, that they will enhance stockholder value, or that they will not adversely affect the
Company's business or the trading price of the Class A common stock.
Effect of the Reverse Stock Split on Equity Incentive Plans,
Options, and Warrants.
Based upon the reverse stock split ratio
determined by the Board, proportionate adjustments are generally required to be made to the per share exercise price and the number of
shares issuable upon the exercise or conversion of all outstanding options, and warrants entitling the holders to purchase, shares of
Class A common stock. This would result in approximately the same aggregate price being required to be paid under such options or warrants,
and approximately the same value of shares of Class A common stock being delivered upon such exercise, immediately following the Reverse
Stock Split as was the case immediately preceding the Reverse Stock Split. The number of shares reserved for issuance pursuant to these
securities will be proportionately adjusted based upon the reverse stock split ratio determined by the Board, subject to rounding for
fractional shares, in accordance with the terms of the applicable equity incentive plan, stock option grant or warrant, as the case may
be.
Accounting Matters
Pursuant to the Reverse Stock Split, the
par value of our Class A common stock and Class B common stock each will remain $0.0001 per share. As a result of the Reverse Stock Split,
upon the effectiveness of the Amendment, the stated capital on the Company’s balance sheet attributable to the Class A common stock
and Class B common stock, respectively, will be reduced to the aggregate par value of the issued shares of such class, and the additional
paid-in capital account shall be credited with the amount by which the stated capital is reduced, if any. The Company’s stockholders’
equity, in the aggregate, will remain unchanged.
Also, if the Reverse Stock Split is effected,
reported per share net income or loss would be higher because there will be fewer shares of the Company’s common stock outstanding.
The Reverse Stock Split would be reflected retroactively for all periods presented in the Company’s financial statements. The Company
does not anticipate that any other material accounting consequences, including changes to the amount of stock-based compensation expense
to be recognized in any period, would arise as a result of the Reverse Stock Split.
Procedures
The Reverse Stock Split, if effected, would
become effective upon the filing of the Amendment with the Secretary of State of the State of Delaware. Following are descriptions of
how the Reverse Stock Split would be effected for beneficial holders, registered book entry holders, and certificated holders.
Beneficial Holders of Common Stock
Upon the implementation of the Reverse Stock
Split, we intend to treat shares held by stockholders through a bank, broker or other agent in the same manner as registered stockholders
whose shares are registered in their names. Banks, brokers and other agents would be instructed to effect the Reverse Stock Split for
their beneficial holders holding shares of Class A common stock or Class B common stock in street name. However, these banks, brokers
and other agents may have different procedures than registered stockholders for processing the Reverse Stock Split. Stockholders who hold
shares of Class A common stock or Class B common stock with a bank, broker other agent and who have any questions in this regard are strongly
encouraged to contact their banks, brokers or other agents for more information.
Registered “Book-Entry” Holders of Common Stock
Certain registered holders of Class A common stock and Class
B common stock may hold some or all their shares electronically in book-entry form with Equiniti Trust Company, LLC (“EQ”),
the Company’s transfer agent. These stockholders do not have stock certificates evidencing their ownership of the Class A common
stock or Class B common stock, as applicable. They are, however, provided with a statement reflecting the number of shares registered
in their accounts. If the Reverse Stock Split is effected, stockholders who hold shares electronically in book-entry form with EQ will
not need to take action to receive whole shares of post-Reverse Stock Split common stock as the exchange will be automatic.
Holders of Certificated Shares of Common Stock
If the Reverse Stock Split is effected,
stockholders holding shares of Class A common stock or Class B common stock in certificated form would be sent instructions by EQ after
the effective time of the Amendment indicating how a stockholder should surrender their certificate(s) representing shares of Class A
common stock or Class B common stock (the “Old Certificates”) to EQ in exchange for certificates representing the appropriate
number of whole shares of post-Reverse Stock Split Class A common stock or Class B common stock, as applicable (the “New Certificates”).
No New Certificates would be issued to a stockholder until such stockholder has surrendered all Old Certificates to EQ in accordance with
its instructions. No stockholder would be required to pay a transfer or other fee to exchange their Old Certificates. Stockholders would
then receive one or more New Certificate(s) representing the number of whole shares of Class A common stock or Class B common stock to
which they are entitled as a result of the Reverse Stock Split. Until surrendered, the Company would deem outstanding Old Certificates
held by stockholders to be cancelled and only to represent the number of whole shares of post-Reverse Stock Split Class A common stock
or Class B common stock to which these stockholders are entitled. Any Old Certificates submitted for exchange, whether because of a sale,
transfer or other disposition of stock, would automatically be exchanged for New Certificates. If an Old Certificate has a restrictive
legend on it, the New Certificate would be issued with the same restrictive legend that is on the Old Certificate. If the Reverse Stock
Split is effected, the Company expects that EQ would act as the exchange agent for purposes of implementing the exchange of stock certificates.
No service charges would be payable by holders of shares of common stock in connection with the exchange of certificates. The Company
would bear all such expenses.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK
CERTIFICATE(S). STOCKHOLDERS SHOULD NOT SUBMIT ANY STOCK CERTIFICATE(S) FOR EXCHANGE UNLESS AND UNTIL REQUESTED TO DO SO, AND THEN STOCK
CERTIFICATES SHOULD BE SUBMITTED ONLY IN THE MANNER INSTRUCTED. STOCK CERTIFICATES SHOULD NOT BE SUBMITTED DIRECTLY TO THE COMPANY.
Certain Federal Income Tax Consequences of the Reverse Stock
Split
The following summary describes, as of the
date of this Information Statement, certain U.S. federal income tax consequences of the Reverse Stock Split to holders of our common stock.
This summary addresses the tax consequences only to a U.S. holder, which is a beneficial owner of our common stock that, for U.S. federal
income tax purposes, is:
| · | an individual who is a citizen or resident of the United States; |
| · | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created
or organized in or under the laws of the United States, any state thereof, or the District of Columbia; |
| · | an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or |
| · | a trust (i) the administration of which is subject to the primary supervision of a U.S. court and which
has one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) who have the authority to
control all substantial decisions of the trust or (ii) that has made a valid election under applicable U.S. Treasury regulations to be
treated as a United States person. |
This summary is based on the provisions
of the Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury regulations, administrative rulings and judicial
authority, all as in effect as of the date of this Information Statement. Subsequent developments in U.S. federal income tax law, including
changes in law or differing interpretations, which may be applied retroactively, could have a material effect on the U.S. federal income
tax consequences of the Reverse Stock Split.
This summary does not address all of the
tax consequences that may be relevant to any particular U.S. holder, including tax considerations that arise from rules of general application
to all taxpayers or to certain classes of taxpayers or that are generally assumed to be known by investors. This summary also does not
address the tax consequences to (i) persons that may be subject to special treatment under U.S. federal income tax law, such as banks,
insurance companies, thrift institutions, regulated investment companies, real estate investment trusts, tax-exempt organizations, U.S.
expatriates, persons subject to the alternative minimum tax, persons whose functional currency is not the U.S. dollar, partnerships or
other pass-through entities, traders in securities that elect to mark to market and dealers in securities or currencies, (ii) persons
that hold our common stock as part of a position in a “straddle” or as part of a “hedging transaction,” “conversion
transaction” or other integrated investment transaction for federal income tax purposes or (iii) persons that do not hold our common
stock as “capital assets” (generally, property held for investment). This summary does not address backup withholding and
information reporting. This summary does not address U.S. holders who beneficially own common stock through a “foreign financial
institution” (as defined in Code Section 1471(d)(4)) or certain other non-U.S. entities specified in Code Section 1472. This summary
does not address tax considerations arising under any state, local or foreign laws, or under federal estate or gift tax laws.
If a partnership (or other entity classified
as a partnership for U.S. federal income tax purposes) is the beneficial owner of our common stock, the U.S. federal income tax treatment
of a partner in the partnership will generally depend on the status of the partner and the activities of the partnership. Partnerships
that hold our common stock, and partners in such partnerships, should consult their own tax advisors regarding the U.S. federal income
tax consequences of the Reverse Stock Split.
Each U.S. holder should consult his, her
or its own tax advisors concerning the particular U.S. federal tax consequences of the Reverse Stock Split, as well as the consequences
arising under the laws of any other taxing jurisdiction, including any foreign, state, or local income tax consequences.
General Tax Treatment of the Reverse Stock Split
If the Reverse Stock Split is effected,
it is intended to qualify as a “reorganization” under Section 368 of the Code that should constitute a “recapitalization”
for U.S. federal income tax purposes. Assuming the Reverse Stock Split qualifies as a reorganization, a U.S. holder generally is not expected
to recognize gain or loss upon the exchange of our common stock for a lesser number of shares of common stock, based upon the Reverse
Stock Split ratio. A U.S. holder’s aggregate tax basis in the shares of common stock received pursuant to the Reverse Stock Split
should equal such U.S. holder’s aggregate tax basis in the shares of our common stock that such U.S. holder owned immediately prior
to the Reverse Stock Split. The holding period for the shares of common stock received pursuant to the Reverse Stock Split should include
the period during which a U.S. holder held the shares of our common stock that were surrendered in the Reverse Stock Split. The United
States Treasury regulations provide detailed rules for allocating the tax basis and holding period of the shares of our common stock surrendered
to the shares of our common stock received pursuant to the Reverse Stock Split. U.S. holders of shares of our common stock acquired on
different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period
of such shares.
THE FOREGOING IS INTENDED ONLY AS A SUMMARY OF CERTAIN FEDERAL
INCOME TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT AND DOES NOT CONSTITUTE A TAX OPINION. EACH U.S. HOLDER OF SHARES OF OUR COMMON STOCK
SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT TO THEM AND FOR REFERENCE TO APPLICABLE PROVISIONS
OF THE CODE.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information
regarding the beneficial ownership of the Company’s Class A common stock as of November 14, 2023, unless otherwise noted below for
the following:
| · | each person, or group of affiliated persons, who we know to beneficially
own more than 5% of our Class A common stock; |
| · | each of our named executive officers; |
| · | each of our directors; and |
| · | all our executive officers, and directors as a group. |
Beneficial ownership is determined in accordance
with the rules of the SEC. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting
power or investment power with respect to such securities. Except as otherwise indicated, all persons listed below have sole voting and
investment power with respect to the shares beneficially owned by them, subject to applicable community property laws. Common stock subject
to options exercisable on or within 60 days after November 14, 2023, are deemed outstanding for the purpose of computing the percentage
ownership of the person holding those options but are not deemed outstanding for computing the percentage ownership of any other person.
The beneficial ownership of voting securities
of the Company is based on 225,410,351 and 36,975,372 shares of Nxu’s Class A common stock and Class B common stock, respectively,
issued and outstanding as of November 14, 2023.
| Name of Beneficial Owner(1) | |
Class A
Shares | | |
% of
Class | | |
Class B
Shares | | |
% of
Class | | |
Combined
Voting
Power(2) | |
| Directors and Executive Officers | |
| | |
| | |
| | |
| | |
| |
| Mark Hanchett | |
| 28,215,641 | (3) | |
| 11.2 | % | |
| 26,803,676 | (4) | |
| 72.5 | % | |
| 45.4 | % |
| Annie Pratt | |
| 11,583,642 | (5) | |
| 4.9 | % | |
| 10,171,696 | (6) | |
| 27.5 | % | |
| 17.5 | % |
| Apoorv Dwivedi | |
| 851,906 | (7) | |
| * | | |
| - | | |
| - | | |
| * | |
| Britt Ide | |
| 412,768 | (8) | |
| * | | |
| - | | |
| - | | |
| * | |
| Caryn Nightengale | |
| 394,749 | (9) | |
| * | | |
| - | | |
| - | | |
| * | |
| Jessica Billingsley | |
| 194,444 | (10) | |
| * | | |
| - | | |
| - | | |
| - | |
| All directors and executive officers as a group (6 individuals) | |
| 41,653,150 | | |
| 30.6 | % | |
| 36,975,372 | | |
| 100.0 | % | |
| 69.8 | % |
| (1) | The business address of each of the individuals is c/o Nxu, Inc., 1828 N. Higley Rd., Suite 116, Mesa, Arizona 85205. |
| (2) | Represents the percentage of voting power with respect to all shares
of the Company’s outstanding capital stock voting together as a single class. Does not include shares underlying stock options that
are currently exercisable or exercisable within 60 days of November 14, 2023 or restricted stock units that vest within 60 days. The holders
of our Class B common stock are entitled to 10 votes per share and the holders of our Class A common stock are entitled to one vote per
share. |
| (3) | Includes 26,308,830 shares of Class A common stock underlying options that are currently exercisable or are exercisable within 60
days and 600,000 restricted stock units that vest within 60 days. |
| (4) | Includes 600,000 restricted stock units that vest within 60 days. |
| (5) | Represents 10,276,831 shares of Class A common stock underlying options that are currently exercisable or are exercisable within 60
days and 300,000 restricted stock units that vest within 60 days. |
| (6) | Includes 300,000 restricted stock units that vest within 60 days. |
| (7) | Includes 190,000 shares of Class A common stock underlying options that are currently exercisable or are exercisable within 60 days
and restricted stock units that vest within 60 days. |
| (8) | Includes 218,324 shares of Class A common stock underlying options that are currently exercisable or are exercisable within 60 days
and 194,444 restricted stock units that vest within 60 days. |
| (9) | Represents 200,305 shares of Class A common stock underlying options that are currently exercisable or are exercisable within 60 days
and 194,444 restricted stock units that vest within 60 days. |
| (10) | Represents 194,444 restricted stock units that vest within 60 days. |
HOUSEHOLDING
The SEC has adopted rules that permit companies
to deliver a single copy of stockholder materials to multiple stockholders sharing an address unless a company has received contrary instructions
from one or more of the stockholders at that address. This means that only one copy of this Information Statement may have been sent to
multiple stockholders in your household. We will promptly deliver a separate copy of this Information Statement to you if requested by
(i) mailing a request to Attn: Secretary, 1828 N. Higley Rd., Suite 116, Mesa, Arizona 85205 or (ii) calling (408) 674-9027. If you want
to receive separate copies of stockholder materials in the future, or if you are receiving multiple copies and would like to receive only
one copy for your household, you should contact your bank, broker, or other nominee record holder, or you may contact the Company at the
above address or telephone number.
APPENDIX A
FORM OF CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
NXU, INC.
____________, 202__
Nxu, Inc. (the “Corporation”), a corporation duly
organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY CERTIFY THAT:
| 1. | The Certificate of Incorporation of the Corporation as heretofore in effect is hereby amended by inserting
Subsection C at the end of ARTICLE IV, which shall read as follows: |
“C. REVERSE STOCK SPLIT
Upon this Certificate of Amendment becoming effective pursuant to the
DGCL (the “Amendment Effective Time”), the shares of the Corporation’s Class A Common Stock (the “Old
Class A Common Stock”) and the shares of the Corporation’s Class B Common Stock (the “Old Class B Common Stock”),
issued and outstanding immediately prior to the Amendment Effective Time will automatically be reclassified by combining such shares into
a lesser number of shares such that (i) each [any whole number between 50 and 500] shares of Old Class A Common Stock will, at the Amendment
Effective Time, be combined into one validly issued, fully paid and non-assessable share of Class A Common Stock, par value $0.0001 per
share (the “New Class A Common Stock”), of the Corporation, and (ii) each [any whole number between 50 and 500] shares
of Old Class B Common Stock will, at the Amendment Effective Time, be combined into one validly issued, fully paid and non-assessable
share of Class B Common Stock, par value $0.0001 per share (the “New Class B Common Stock”), of the Corporation, in
each case, without any further action by the Corporation or the holder thereof, subject in each case to the treatment of fractional share
interests as described below (the “Reverse Stock Split”). No fractional shares of New Class A Common Stock or New Class
B Common Stock shall be issued in connection with the Reverse Stock Split. Stockholders who otherwise would be entitled to receive fractional
shares of New Class A Common Stock or New Class B Common Stock shall be entitled to receive the number of shares of New Class A Common
Stock or New Class B Common Stock to which each such stockholder is entitled in connection with the Reverse Stock Split, in each case
rounded up to the next whole number. Any stock certificate that, immediately prior to the Amendment Effective Time, represented shares
of Old Class A Common Stock or Old Class B Common Stock will, from and after the Amendment Effective Time, automatically and without the
necessity of presenting the same for exchange, represent the number of shares of New Class A Common Stock or New Class B Common Stock,
respectively, as such shares of Old Class A Common Stock and Old Class B Common Stock, as applicable, have been combined, subject to the
elimination of fractional share interests as described above. As soon as practicable following the Amendment Effective Time, the Corporation
will cause the transfer agent to issue new certificates representing the appropriate number of whole shares of New Class A Common Stock
and New Class B Common Stock following the Reverse Stock Split for every one share of Old Class A Common Stock or Old Class B Common Stock,
respectively, that is transmitted and held of record as of the Amendment Effective Time.”
| 2. | The forgoing amendment was duly adopted in accordance with the provisions of Section 242 of the DGCL,
by written consent of the stockholders of the Corporation in accordance with the provisions of Section 228 of the DGCL. |
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be
executed by its duly authorized officer on this ___ day of _________, 202_.
| |
NXU, INC. |
| |
|
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| |
By: |
|
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| |
Name: |
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| |
Title: |
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17
Grafico Azioni NXU (NASDAQ:NXU)
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Da Apr 2024 a Mag 2024
Grafico Azioni NXU (NASDAQ:NXU)
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