07/24/2024 | Press release | Distributed by Public on 07/24/2024 15:01
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to § 240.14a-12
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Nxu, Inc.
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(Name of Registrant as Specified in Its Charter)
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(Name of Person(s) Filing Proxy Statement, if Other than the Registrant)
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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) per Exchange Act Rules 14a-6(i)(1) and 0-11
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1.
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To elect four directors to serve until the 2025 annual meeting of stockholders (Proposal 1);
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To consider and vote on a proposal to adopt and approve the Nxu, Inc. Amended and Restated 2023 Omnibus Incentive Plan (the "Amended Plan") (Proposal 2);
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To ratify the appointment of Prager Metis CPAs LLC as Nxu's independent registered public accounting firm for 2024 (Proposal 3);
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To consider and vote on a proposal to amend Nxu's Certificate of Incorporation (Proposal 4);
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For the holders of Class B common stock to consider and vote on the authorization of a Series of Preferred Stock (Proposal5); and
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To transact such other business as may properly come before the meeting of any postponement or adjournment thereof.
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Proposal
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Vote Required to Approve
Proposal
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Abstentions and Broker Non-
Votes
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Proposal 1: To elect four directors to serve until the 2025 annual meeting of stockholders (the "Director Election Proposal")
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Majority of votes cast
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Abstentions and broker non-votes are not considered votes cast and will have no effect
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Proposal 2: To consider and vote on a proposal to adopt and approve the Amended Plan (the "Plan Proposal")
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Majority of votes cast
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Abstentions and broker non-votes are not considered votes cast and will have no effect
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Proposal 3: To ratify the appointment of Prager Metis CPAs LLC as Nxu's independent registered public accounting firm for 2024 (the "Auditor Ratification Proposal")
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Majority of votes cast
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No broker non-votes. Abstentions are not considered votes cast and will have no effect
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Proposal
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Vote Required to Approve
Proposal
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Abstentions and Broker Non-
Votes
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Proposal 4: To consider and vote on a proposal to amend Nxu's Certificate of Incorporation (the "Charter Amendment Proposal")
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Majority voting power of issued and outstanding shares
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Abstentions and broker non-votes will have the effect of a vote against this proposal
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Proposal 5: For the holders of Class B common stock to consider and vote on the authorization of a series of Preferred Stock (the "Preferred Stock Proposal")
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Two-thirds of the shares of Class B common stock issued and outstanding
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Abstentions and broker non-votes with respect to Class B common stock will have the effect of a vote against this proposal
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You can submit a proxy to vote your shares by calling the toll-free number shown on your proxy card and voting over the phone.
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You can submit a proxy to vote your shares by visiting the website shown on your proxy card and voting via the Internet.
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You can submit a proxy to vote your shares by completing, signing, dating, and returning the enclosed proxy card in the postage-paid envelope provided. If you hold your shares of Class A common stock in "street name" through a bank, broker, or other nominee, you will need to follow the instructions provided to you by your bank, broker, or other nominee to ensure that your shares are represented and voted at the Annual Meeting.
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If you submit a proxy card, your "proxy," whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign and return the proxy card but do not give instructions on how to vote your shares, your shares of Class A common stock will be voted as recommended by the Board.
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You can attend the Annual Meeting and vote virtually even if you have previously voted by submitting a proxy pursuant to any of the methods noted above. However, if your shares of Class A common stock are held in the street name of your broker, bank, or other nominee, you must get a proxy from the broker, bank or other nominee. That is the only way Nxu can be sure that the broker, bank, or nominee has not already voted your shares of Nxu Class A common stock.
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you may send another proxy card with a later date or submit a new proxy online or by telephone;
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you may notify Nxu in writing before the Annual Meeting that you have revoked your proxy; or
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you may attend the Annual Meeting virtually, revoke your proxy and vote online as described above.
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As of July 22, 2024, the Company has approximately 16,947 stockholders of record.
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By adopting the Amendment and the accompanying "votes cast" standard, shares held by stockholders who do not vote or return proxies will no longer count as votes against changes to the number of shares of Class A common stock and reverse splits of Class A common stock. However, stockholders may continue to register their dissent against these actions by casting votes "against" any of these actions, if they are taken in the future.
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It is possible that one or more reverse splits of the Class A common stock may be necessary to maintain the trading price of Class A Common Stock at or above $1.00, so that the Class A common stock may continue to be listed on the Nasdaq Global Market. An increase to the authorized number of shares of Class A common stock may be advisable at some point in the future if the Company needs to raise funds through the issuance of Class A common stock. The Company is currently authorized to issue 4,000,000,000 shares of Class A common stock, and a total of 32,022,877 shares of Class A common stock are either issued or reserved for issuance on the conversion or exchange of other securities.
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The "votes cast" standard that would be enacted as a result of the Amendment may have the practical effect of amplifying the voting power of the Insiders if they support a future share increase or reverse stock split of the Class A common stock, since the new voting standard would result in fewer votes "against" these actions through a lack of stockholder voting turn out. However, a share increase or reverse stock split cannot be effected under Delaware law unless it is approved by the Board. Accordingly, a share increase or reverse stock split would be effected only if the directors have determined that the action is advisable and advances the best interests of all stockholders.
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Except as otherwise provided in the Initial Certificate of Designation or required by law, the Series B Preferred Stock shall not entitle the holder thereof to any voting rights on any matter submitted for stockholder action.
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The Series B Preferred Stock is entitled to cast one vote on the election of directors.
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On any Special Action, the Series B Preferred Stock is entitled to cast a number of votes equal to the total number of votes that could be cast by the holders of Class A Common Stock and Class B Common Stock on such Special Action. The holder of Series B Preferred Stock is entitled to vote with the Class A Common Stock and Class B Common Stock as a single class on all Special Actions. A Special Action is defined as any amendment to the Charter to: (1) increase or decrease the number of shares of Class A Common Stock authorized for issuance; or (2) reclassify by combining the issued shares of Class A Common Stock and Class B Common Stock into a fewer number of shares of such respective classes, provided that the shares of Class A Common Stock and Class B Common Stock are proportionately combined.
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The holder of the Series B Preferred Stock is required to execute a joinder to the Certificate of Designation (the "Joinder") that requires the holder to vote in a specified manner on a Special Action. Specifically, the holder must vote the voting power of the Series B Preferred Stock by (1) casting a number of votes "for" the Special Action that is determined by multiplying the total voting power of the Series B Preferred Stock by a fraction, where the numerator is the total number of votes cast "for" the Special Action by the holders of Class A Common Stock and Class B Common Stock, and the denominator is the total number of votes cast "for" or "against" the Special Action by the holders of Class A Common Stock and Class B Common Stock, and (2) casting the balance of the voting power of the Series B Preferred Stock "against" the Special Action.
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The Series B Preferred Stock may be redeemed at any time at the option of the Board of Directors of the Corporation (acting in its sole discretion) for $1.00, payable in cash and only out of funds legally available therefor.
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The share of Series B Preferred Stock may only be owned by a person or entity who has executed the Joinder, and the holder of the share of Series B Preferred Stock may not directly or indirectly transfer the Series B Preferred Stock to any other person or entity without the prior approval of the Board of Directors (acting in its sole discretion).
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With respect to each action voted upon, or proposed to be voted upon, by the holders of any class or series of capital stock of the Company, the Series B Preferred Stock is entitled to cast a number of votes equal to the total number of votes that could be cast by the holders of Class A Common Stock and Class B Common Stock on such action.
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There are no restrictions or provisions in the Replacement Certificate of Designation with respect to how the share of Series B Preferred Stock will be voted.
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The Series B Preferred Stock may be redeemed at any time at the option of the Board of Directors of the Corporation (acting in its sole discretion) for $1.00, payable in cash and only out of funds legally available therefor.
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There are no restrictions in the Replacement Certificate of Designation with respect to the transfer or ownership of the Series B Preferred Stock.
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As of July 22, 2024, the Company has approximately 16,947 stockholders of record.
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In light of the number of record holders of stock and the issues that the Company has encountered with obtaining a quorum of the Annual Meeting, the Board wishes to preserve the flexibility to issue the share of Series B Preferred Stock at a later date, to assist the Company with obtaining a quorum and potentially the stockholder vote required for future actions, including but not limited to the Special Actions that were listed in the Initial Certificate of Designation.
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The Initial Certificate of Designation was limited to authorizing the Series B Preferred Stock to exercise enhanced voting power on Special Actions to amend the Certificate of Incorporation. However, on May 10, 2024, the Company publicly announced its intention to evaluate strategic alternatives. In a press release dated May 10, 2024, the Company stated that "Nxu's Board of Directors' Strategic Planning Committee will lead the evaluation, with outside assistance from advisors, and has identified targets for a business combination intended to position the newly combined company for sustainable long-term value creation with a strengthened financial profile. Nxu is in discussions with several prospective targets, but there can be no assurances given regarding the outcome or timing of the strategic evaluation process."
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The evaluation of strategic alternatives may result in a proposed transaction that requires stockholder approval. At the time, if ever, the Board of Directors approved a proposed transaction, it may determine it is advisable and in the best interests of all stockholders to issue the share of Series B Preferred Stock, to enhance the voting power of the stockholders who attend or vote by proxy at a special meeting called to approve a transaction. If the share of Series B Preferred Stock were issued, the Board could covenant with the holder of the Series B Preferred Stock about how the share will be voted on a proposed transaction. Without limiting the types of voting covenants that might be determined by the Board:
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The holder of Series B Preferred Stock could be required to vote proportionately with the votes cast "for" or "against" a transaction by holders of Class A common stock and Class B common stock; or
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The holder of Series B Preferred Stock could be required to vote all of the voting power of the Series B Preferred Stock in favor of a transaction if the votes cast "for" the transaction by the holders of Class A common stock and Class B common stock exceed the votes cast "against" the transaction by the holders of Class A common stock and Class B common stock.
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The Board of Directors has not approved a strategic transaction and has not yet determined to issue the Series B Preferred Stock. However, because the authorization of preferred stock with multiple votes per share requires the approval of the holders of Class B common stock before that type of preferred stock may be issued, the Board has determined it is advisable to submit this Proposal 5 for approval at the Annual Meeting when it reconvenes.
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The issuance of the Series B Preferred Stock may have the practical effect of amplifying the voting power of the Class A common stock and Class B common stock held by the Insiders if they support a future transaction. However, no transaction may be effected under Delaware law, and the Series B Preferred Stock will not be issued, unless these actions are approved by the Board and the Board has determined that these actions are advisable and advances the best interests of all stockholders.
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1.
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Designation and Number. This series of Preferred Stock shall be designated as the "Series B Preferred Stock," and one share is hereby designated as the sole share of Series B Preferred Stock.
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Defined Terms.
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(a)
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Capitalized terms that are not defined in this Certificate of Designations have the meaning given those terms in the Certificate of Incorporation.
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(b)
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" Holder " means the person or entity then holding the Series B Preferred Stock.
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Dividends. The Holder shall not be entitled to receive dividends of any kind by reason of his or her ownership of Series B Preferred Stock.
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Liquidation, Dissolution and Winding Up . Following the liquidation, dissolution or winding up of the Corporation, the Holder shall be entitled to receive $1.00, payable in cash and only out of funds legally available therefor, by reason of his or her ownership of Series B Preferred Stock, which shall be paid prior to the payment of any amounts to the holders of Class A Common Stock and Class B Common Stock in connection with such liquidation, dissolution or winding up. The Series B Preferred Stock shall rank junior to the Series A Preferred Stock with respect to distributions paid on a liquidation, dissolution or winding up of the Corporation. Any series of Preferred Stock authorized and issued by the Corporation following the effectiveness of this Certificate of Designations may rank senior or junior to, or on a parity with, the Series B Preferred Stock, as determined by the terms of such series of Preferred Stock.
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Voting Rights . With respect to each action voted upon, or proposed to be voted upon, by the holders of any class or series of capital stock of the Corporation, the Series B Preferred Stock shall entitle the Holder to cast a number of votes equal to the total number of votes that could be cast by the holders of Class A Common Stock and Class B Common Stock on such action. The Holder shall be entitled to vote with the Class A Common Stock and Class B Common Stock as a single class on such actions.
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Redemption. The Series B Preferred Stock may be redeemed at any time at the option of the Board of Directors of the Corporation (acting in its sole discretion) for $1.00, payable in cash and only out of funds legally available therefor.
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Amendments . No amendment to this Certificate of Designations shall be effected without the approval of the Holder.
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Governing Law . This Certificate of Designations shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware, regardless of any laws or legal principles that might otherwise govern under the applicable principles of conflicts of law thereof.
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Severability . The provisions of this Certificate of Designations are severable, so that the invalidity or unenforceability of any provision of this Certificate of Designations shall not affect the validity or enforceability of any other provision of this Certificate of Designations.
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NXU, INC.
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By:
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Mark Hanchett
Chief Executive Officer
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DATED:
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