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United States securities and exchange commission logo
September 8, 2023
Mark Hanchett
Chief Executive Officer
Nxu, Inc.
1828 N Higley Rd., Suite 116
Mesa, Arizona 85205
Re: Nxu, Inc.
Draft Registration
Statement on Form S-1
Submitted on August
18, 2023
CIK No. 0001722969
Dear Mark Hanchett:
We have conducted a limited review of your draft registration
statement. In some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to this letter by providing any requested
information and by publicly
filing your registration statement and non-public draft submission on
EDGAR. If you do not
believe our comments apply to your facts and circumstances or do not
believe an amendment is
appropriate, please tell us why in your response.
After reviewing the information you provide in response to these
comments and your
filed registration statement, we may have additional comments.
Draft Registration Statement on Form S-1
General
1. We note that you did
not check the box on the registration statement cover page that you
are offering the shares
on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act. Please
provide us with your analysis of why Rule 415 does not apply to
your proposed offering
or revise as applicable.
2. We note your
disclosures on the prospectus cover page and on page 90 which indicate that
the selling
stockholders may be deemed to be underwriters. Please revise to state
that
the selling
stockholders are underwriters within the meaning of Section 2(a)(11) of the
Securities Act. To the
extent that any broker-dealer or agent is involved in selling the
securities, indicate
that each will be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act.
In addition, please remove the statement on page 89 that the selling
Mark Hanchett
Nxu, Inc.
September 8, 2023
Page 2
stockholders may sell securities under Rule 144.
3. We note your disclosure on the prospectus cover page that on August 16,
2023, you and
the selling stockholders agreed to register an aggregate of 50,000,000
shares of Class A
common stock, which appears to be an amendment to your Share Purchase
Agreement.
Please file this agreement as an exhibit to the registration statement.
Further, please revise
your filing throughout to discuss the material terms of this agreement
as well as the Share
Purchase Agreement and the Common Stock Purchase Warrant, each dated
June 25, 2021,
including:
the terms of each agreement;
the material conditions under which you may access the funds
available under each
agreement;
the possibility that you may not have access to the full amount
available to you under
each agreement;
the full discounted price (or formula for determining it) at which
the selling
stockholders will receive the shares under the Share Purchase
Agreement and
Common Stock Purchase Warrant; and
the dilutive effect of the formula or pricing mechanism under the
Share Purchase
Agreement and Common Stock Purchase Warrant on your share price.
Finally, we note your disclosure on page 89 that the selling
stockholders may engage in
short-selling activities. Please revise your Risk Factors section to
discuss how any sales
activities after announcement of a put may negatively affect your share
price.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
We also remind you that your registration statement must be on file no
later than 48 hours
prior to the requested effective date and time. Refer to Rules 460 and 461
regarding requests for
acceleration. Please allow adequate time for us to review any amendment prior
to the requested
effective date of the registration statement.
Please contact Jenny O'Shanick at 202-551-8005 or Erin Purnell at
202-551-3454 with
any questions.
Sincerely,
FirstName LastNameMark Hanchett
Division of
Corporation Finance
Comapany NameNxu, Inc.
Office of
Manufacturing
September 8, 2023 Page 2
cc: James R. Brown
FirstName LastName