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Item 9A. Controls and Procedures

2024-03-28 compared with 2023-09-25 · 140 added, 227 removed, 388 unchanged (49% of the section changed)

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Evaluation of Disclosure Controls and Procedures

Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (Exchange Act)) as of the end of the period covered by this Annual Report.

Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that our disclosure controls and procedures (a) were not effective to ensure that information that we are required to disclose in reports that we file or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and (b) include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Management ’

s Report on Internal Control over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.

Section 404 of the Sarbanes- Oxley Act of 2002 (the “Sarbanes-Oxley Act”) requires that we evaluate and determine the effectiveness of our internal control over financial reporting and provide a management report on the internal control over financial reporting.

Once we are no longer either an “emerging growth company”

or a smaller reporting company, such report must be attested to by our independent registered public accounting firm.

The Sarbanes-Oxley Act also requires that our principal executive officer and principal financial officer conclude as to the effectiveness of our disclosure controls and procedures on a quarterly basis.

Based on such evaluation, our chief executive officer and chief financial officer concluded that, as of December 31, 2022, our disclosure controls and procedures (a) were not effective to ensure that information that we are required to disclose in reports that we file or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and (b) include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act is accumulated and communicated to our management, including chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding required disclosure.

Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, as amended (Exchange Act)) as of the end of the period covered by this Annual Report.

Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer have concluded that our disclosure controls and procedures were not effective to ensure that information that we are required to disclose in reports that we file or submit under the Exchange Act is (a) recorded, processed, summarized and reported within the time periods specified in SEC rules and forms and (b) accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Management ’ s Report on Internal Control over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act, designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.

Section 404 of the Sarbanes- Oxley Act requires that we evaluate and determine the effectiveness of our internal control over financial reporting and provide a management report on the internal control over financial reporting.

Once we are no longer a smaller reporting company, such report must be attested to by our independent registered public accounting firm.

Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our internal control over financial reporting as of December 31, 2023 using the framework established by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control—Integrated Framework (2013 framework).

Based on such evaluation, our management concluded that, as of December 31, 2023, our internal control over financial reporting was not effective as of December 31, 2023.

Deficiencies existed in the design or operation of our internal control over financial reporting that adversely affect our internal controls.

A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.

In making such conclusion, our management determined that such deficiencies were determined to be material weaknesses that are primarily due to certain staff reductions and voluntary resignations we experienced beginning in the fourth quarter of 2020 and continuing through the date of this filing.

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As a result of such changes, our management concluded that we were unable to maintain the levels of segregation of duties during such periods at the levels of prior periods, and that such changes to our disclosure controls and procedures significantly affected our internal control over financial reporting during the year ended December 31, 2023.

Although we have yet to fully resolve such deficiencies as of the date of this prospectus, we have engaged, and continue to seek the assistance of additional, experienced accounting professionals with relevant expertise to supplement our efforts and mitigate the negative effects of the above- described deficiencies in the effectiveness of our disclosure controls and procedures.

Although we have yet to fully resolve such deficiencies as of the date of this Annual Report, we have engaged, and continue to seek the assistance of additional, experienced accounting professionals with relevant expertise to supplement our efforts and mitigate the negative effects of the above-described material weaknesses.

If we fail to detect errors on a timely basis, our financial statements may be materially misstated and if we are unable to comply with the requirements of Section 404 of the Sarbanes Oxley Act, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal control over financial reporting, if and when required, investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our common stock could be negatively affected, and we could become subject to investigations by the stock exchange on which our securities are listed, the SEC, or other regulatory authorities, which could require additional financial and management resources.

This report does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting.

Management’s report was not subject to attestation by our independent registered public accounting firm pursuant to exemptions available to issuers that are non-accelerated files or qualify as “emerging growth companies,”

as defined in Section 2(a) of the Securities Act, as modified by the JOBS Act.

Other than the material weaknesses and remediation efforts described above, there were no changes in our internal control over financial reporting (as defined in Rules 13a1513a-15(f) and 15d-15(f) under the Exchange Act) during the most recent fiscal quarter covered by this Annual Report on Form 10-K that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Changes in Internal Control over Financial Reporting

Other than the material weakness described above, there were no changes in our internal control over financial reporting (as defined in Rules 13a15(f) and 15d-15(f) under the Exchange Act) during the most recent fiscal quarter covered by this Annual Report on Form 10-K that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Other than the material weakness described above, there were no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the most recent fiscal quarter covered by this Annual Report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

OTHER INFORMATION

DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTION

Not applicable.

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The following table sets forth information regarding our executive officers and directors as of the date of this report:

The following table sets forth information regarding our executive officers and directors at the date of this report:

Executive Officers

Chief Executive Officer, Chairman of the Board and Director

Executive Vice President, Corporate Secretary and Director

 Douglas M.

Chief Financial Officer and Treasurer

Executive Vice President and Corporate Secretary

Chief Financial Officer

Melissa Barcellos (1)(2)(3)

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The Board believes that Mr.

Oldridge’s extensive senior executive management and board experience in private and public companies qualifies him to serve on the Board of Directors.

Emry, Executive Vice President, Corporate Secretary, and Director

Oldridge’s extensive senior executive management and board experience in private and public companies qualifies him to serve on the Board of Directors.

Emry, Executive Vice President and Corporate Secretary

Emry has served as our Executive Vice President since December 2021 and as a director since January 7, 2022.

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In April 2021, Ms.

Emry was appointed to serve as the Company’s Controller.

From 2017 until March 2021, Ms.

Emry was appointed to serve as the Company’s Controller.

From 2017 until March 2021, Mrs.

Emry was a Director, and the President, Chief Financial Officer and Secretary, of Envirotech Drive Systems, Inc.

until we acquired that company upon the closing of the Merger.

In addition, from 2006 to 2020, Ms.

In addition, from 2006 to 2020, Mrs.

Emry also served as Chief Financial Officer of Sardo Bus and Coach Upholstery, a company specializing in transit vehicle refurbishment.

From 1992 to 2020, Ms.

From 1992 to 2020, Mrs.

Emry held various roles of increasing responsibility with Michael Di Pietro, CPA, where she provided management advisory and tax preparation services primarily in the high-net-worth client division.

The Board believes that Ms.

Emry’s extensive experience in transportation, vehicle manufacturing and financial industries experience qualifies her to serve on the Board of Directors.

Campoli, Chief Financial Officer and Treasurer

Campoli joined the Company as Chief Financial Officer since April 2023.

Prior to joining the Company, he was the Chief Financial Officer and Treasurer of Arcimoto, Inc., a publicly listed company that manufactures three-wheeled fun utility electric vehicles, from June 2015 to April 2023. He was the Founder of Strategic Financial Consulting from February 2013 to June 2015, providing financial consulting services for startup and existing businesses.

From September 2012 to September 2013, Mr.

Campoli was Chief Financial Officer of ManaFuel, bringing energy independence to Pacific Island Nations.

From May 2007 to February 2011, he was Chief Financial Officer of GarageGames.com, Inc.

From 2004 to May 2007, Mr.

Campoli was Chief Financial Officer of SeQuential Biofuels, Inc.

Prior to 2004, he held various financial positions at Genuity Inc.

(previously GTE Internetworking), and AT&T Paradyne Corp.

Campoli is a Certified Cash Manager and holds a B.S.

in Business and Finance from the University of South Florida and an M.B.A.

with a concentration in Finance from the University of Tampa.

Franklin Lim, Chief Financial Officer

Lim, 62, has served as the Company’s Controller since April 2023.

From August 2021 to April 2023, he served as the Controller of Arcimoto, Inc.

Lim served as Senior Manager of American Credit Acceptance from July 2019 to July 2021 and Manager of Financial Reporting of Diversey from January 2018 to June 2019.

He began his career as an audit and tax consultant with Deloitte and Touche in 1989 and has extensive financial and SEC reporting experience with both large multinational corporations and small to medium enterprises.

Lim has a Master’s Degree in Accountancy from the Weatherhead School of Management at Case Western Reserve University in Ohio and a Bachelor’s Degree with Honors in Business Economics with concentrations in Mathematics and Philosophy from the College of Wooster in Ohio.

He is a licensed Certified Public Accountant and has passed both the Certified Management Accountant and Certified in Financial Management Examinations conducted by the Institute of Management Accountants.

Non-Employee Directors

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Melissa Barcellos has served as a director since March 2021.

Barcellos is the Manager of Economic Development of the City of Prince George, British Columbia, a position she has held since September 2015.

She has also served as Principal and Benefit Auctioneer of Melissa Lynn Auctions in Prince George, British Columbia, since May 2011.

From February 2013 through September 2015, Ms.

Barcellos was an Economic Development Officer of Initiatives of the City of Prince George.

Barcellos received a Bachelor of Commerce in Marketing and General Business from the University of Northern British Columbia, a Post Graduate Certificate in Economic Development from the University of Waterloo, and a Post Graduate Certificate in Real Property Valuation from the Sauder School of Business of the University of British Columbia.

Barcellos is employed in the mining industry and currently works on Environmental, Social and Governance ("ESG") initiatives that focus on community and indigenous business development including involvement in supply chain and construction.

She has experience in the clean technology industry, including international government relations and held economic development positions for over 14 years.

Her governance experience includes Chairman of the Board and Director positions on multiple non-profit organizations and being a member of governance, finance, audit and human resources executive committees.

She currently sits on the Board of Directors of the Prince George Airport Authority.

Barcellos received a Bachelor of Commerce in Marketing and General Business from the University of Northern British Columbia and obtained a Post Graduate Certificate in Economic Development from the University of Waterloo.

Based on these qualifications, the Board believes that Ms.

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Board Composition and Filling Vacancies

Currently, our board of directors consists of five directors.

Currently, our board of directors consists of four directors.

The authorized number of directors may be changed only by resolution of our board of directors.

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This classification of our board of directors may have the effect of delaying or preventing changes in control of our company or management.

Each director serves until such director’s successor is duly elected and qualified or such director’s earlier resignation, death or removal.

Our board of directors is responsible for our business and affairs and considers various matters that require its approval.

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Di Pietro and Mmes.

Barcellos and White Elk do not have a material relationship with us that could compromise his or her ability to exercise independent judgment in carrying out his or responsibilities and that each of these directors is “independent”

as that term is defined under the NASDAQ Listing Rules.

Board Leadership Structure and Board ’

s Role in Risk Oversight

Board Leadership Structure and Board ’ s Role in Risk Oversight

The Chairman of our board of directors is Phillip W.

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Accordingly, of our board of directors may periodically review its leadership structure.

In addition, of our board of directors will hold executive sessions in which only independent directors are present.

In addition, our board of directors will hold executive sessions in which only independent directors are present.

Our board of directors is generally responsible for the oversight of corporate risk in its review and deliberations relating to our activities and, either as a whole or through its committees, regularly liaises with management to assess and manage our major risk exposures, the potential impact of such risks on our business and the steps we should take to mitigate or manage such risks.

Our board of directors’

risk oversight process complements and supplements management’s risk assessment and mitigation processes, which include reviews of strategic and operational planning, executive development and evaluation, regulatory and legal compliance, and financial reporting and internal controls.

Our board of directors’ risk oversight process complements and supplements management’s risk assessment and mitigation processes, which include reviews of strategic and operational planning, executive development and evaluation, regulatory and legal compliance, and financial reporting and internal controls.

The risk oversight process also includes receiving reports from committees of our board of directors and members of senior management to enable our board of directors to understand our risk identification, management and mitigation strategies with respect to areas of potential material risk.

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Our Compensation Committee is expected to oversee risk management as it relates to our compensation plans, policies and practices for all employees including executives and directors, particularly whether our compensation programs may create incentives for our employees to take excessive or inappropriate risks, which could have a material adverse effect on us.

Our Nominating and Corporate Governance Committee manages risks associated with the independence of the Board, corporate disclosure practices and potential conflicts of interest.

Our Nominating and Corporate Governance Committee manages risks associated with the independence of the board of directors, corporate disclosure practices and potential conflicts of interest.

While each of our committees is responsible for evaluating certain risks and overseeing the management of such risks, our entire board of directors is regularly informed about such risks and matters involving significant risk are considered by our board of directors as a whole.

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Our board of directors has determined that Mr.

Di Pietro is an “audit committee financial expert”

as defined by the regulations promulgated by the SEC and within the meaning of the NASDAQ Listing Rules.

Di Pietro is an “audit committee financial expert” as defined by the regulations promulgated by the SEC and within the meaning of the NASDAQ Listing Rules.

Our Audit Committee is responsible for, among other things:

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reviewing and evaluating, at least annually, its own performance and the adequacy of the committee charter.

The Audit Committee met as a committee three times during the fiscal year ended December 31, 2022.

The Audit Committee met as a committee seven times during the fiscal year ended December 31, 2023.

Compensation Committee

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In carrying out these responsibilities, the Compensation Committee will review all components of executive compensation for consistency with our compensation philosophy and with the interests of our stockholders.

The Compensation Committee met as a committee three times during the fiscal year ended December 31, 2022.

The Compensation Committee met as a committee eight times during the fiscal year ended December 31, 2023.

Compensation Committee Interlocks and Insider Participation

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Our Nominating and Corporate Governance Committee currently consists of Ms.

Barcellos (Chairperson) and Mr.

Barcellos (Chairperson), Ms.

White Elk and Mr.

The Nominating and Corporate Governance Committee operates under a written charter, which is available on our website at www.evtvusa.com.

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his or her reputation in the business community;

the interplay of the candidate’s experience with the experience of other members of our board of directors;

the availability of such candidate to perform all responsibilities that will be expected of them as a member of our board and any committees;

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The Nominating and Corporate Governance Committee reviews and assesses at least annually the skills and characteristics of the members of our board of directors, as well as the composition of our board of directors as a whole.

The Nominating and Corporate Governance Committee’s assessment includes a review of our directors’

respective independence qualifications, skills and experience in the context of the needs of our board of directors.

The Nominating and Corporate Governance Committee’s assessment includes a review of our directors’ respective independence qualifications, skills and experience in the context of the needs of our board of directors.

Additionally, the Nominating and Corporate Governance Committee considers diversity of experience at policy-making levels in business and technology, and in areas that are relevant to our activities.

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In assessing the composition of our board of directors, the Nominating and Corporate Governance Committee considers the current and anticipated needs of our board of directors, and seeks to maintain an appropriate balance of different business backgrounds, skills and expertise based on the nature and requirements of our business.

In evaluating potential director candidates, the Nominating and Corporate Governance Committee considers all relevant information regarding such candidates, including the membership criteria stated above, and whether such candidates would meet the Nominating and Corporate Governance Committee’s objectives for the overall composition of our board of directors, as well as the candidates’

ability and willingness to devote adequate time to the related responsibilities.

When appropriate, the Nominating and Corporate Governance Committee will recommend qualified candidates for nomination by our entire board of directors.

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EXECUTIVE COMPENSATION

We have opted to comply with the executive compensation disclosure rules applicable to “smaller reporting companies,”

as such term is defined in the rules promulgated under the Securities Act.

We have opted to comply with the executive compensation disclosure rules applicable to “smaller reporting companies,” as such term is defined in the rules promulgated under the Securities Act.

The following tables and accompanying narrative disclosure set forth information about the compensation provided to certain of our executive officers during the years ended December 31, 2023 and 2022.

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Emry, our Executive Vice President;

Rodich, our former Chief Financial Officer.

We refer to these individuals in this section as our “Named Executive Officers.”

Summary Compensation Table

Campoli, our Chief Financial Officer and Treasurer.

We refer to these individuals in this section as our “Named Executive Officers.”

Summary Compensation Table (to update)

The following table presents summary information regarding the total compensation that was awarded to, earned by or paid to our Named Executive Officers for services rendered during the years ended December 31, 2023 and 2022:

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Executive Vice President

Former Chief Financial Officer

Former Chief Financial Officer and Treasurer

The amounts shown in this column represent the aggregate grant date fair value of option awards granted in the year computed in accordance with FASB ASC Topic 718.

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These amounts reflect our accounting expense for these awards and do not correspond to the actual value that may be recognized by our Named Executive Officers.

For the year ended December 31, 2021, Mr.

Oldridge was paid $250,000 of the annual $300,000 included in his employment agreement that was effective March 1, 2021.

This amount represents the salary paid to Ms.

Emry from her April 16, 2021 hire date as Controller through December 31, 2021.

Emry was an unpaid officer of Envirotech Drive Systems, Inc.

from January 1, 2021 through April 15, 2021.

Rodich was appointed as Chief Financial Officer on February 3, 2022.

Campoli was appointed as Chief Financial Officer and Treasurer on April 17, 2023.

The reported salary represents the amount paid to Mr.

Rodich from his hire date of February 3, 2022 through December 31, 2022.

Campoli from his hire date of April 17, 2023 through December 31, 2023.

Under the terms of his offer letter, Mr.

Rodich received a signing/relocation bonus of $20,000.

Rodich resigned as Chief Financial Officer effective February 24, 2023.

Campoli received a signing bonus of $10,000.

Campoli resigned as Chief Financial Officer and Treasurer effective February 23, 2024.

All other compensation for Mr.

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The options were granted to Mr.

Rodich on January 31, 2022, and vest ratably at 1/60th  

per month over five years from the grant date.

Campoli on April 19, 2023, and vest ratably at 1/36th per month over three years from the grant date.

The options to Mr.

Oldridge and Mrs.

Emry were fully vested upon grant.

Compensation Arrangements with Named Executive Officers

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We entered into an employment agreement with Mr.

Oldridge, dated as of December 31, 2021 (the “Oldridge Agreement”).

Oldridge’s base salary increased to $300,000 per year from the previously disclosed $1 per year effective March 31, 2021.

He was paid $250,000 of that amount in 2021.

Oldridge, dated as of December 31, 2021 (the “Oldridge Agreement”).

Oldridge’s base salary is $300,000.

The auto allowance of $1,500 per month contained in his contract commenced being paid in 2022.

Under the Oldridge Agreement, Mr.

Oldridge will also receive an amount equal to five percent of the net income of the Company on an annual basis and will be eligible for a bonus at the sole discretion of the Company’s Board of Directors.

Oldridge’s employment shall continue until terminated in accordance with the Oldridge Agreement.

Oldridge is terminated without cause or if he terminates his employment for good reason, Mr.

Oldridge will be entitled to receive (i) one-year of base salary, (ii) reimbursement of reimbursable expenses in accordance with the Oldridge Agreement, (iii) any bonus that would have been payable within the twelve months following the date of termination, and (iv) the value of any accrued and unused paid time off as of the date of termination.

On January 7, 2021, we granted Mr.

Oldridge an option to purchase 250,000 shares of our common stock under the 2017 Equity Incentive Plan (the “2017 Plan”) at an exercise price of $9.00 per share with an accounting value of $1,714,449.

The shares subject to such option were initially scheduled to vest over a three-year period, with one-third of the shares vesting on the one-year anniversary of the grant date and the remainder vesting in equal monthly installments thereafter, subject to continued service with us through each vesting date;

however, upon the closing of our acquisition of Envirotech Drive Systems, Inc.

on March 16, 2021, our board of directors elected to accelerate the vesting of all outstanding options, whereupon such option vested in full and became exercisable by Mr.

On August 4, 2021, we granted Mr.

Oldridge an option to purchase 22,000 shares of our common stock under the 2017 Plan at an exercise price of $5.506 per share, with an accounting value of $121,132.

Oldridge was immediately vested in the option on the grant date, and exercised it on November 30, 2021.

On January 7, 2022, under the 2017 Plan, we granted Mr.

Oldridge options to purchase 150,000 shares of our common stock at an exercise price of $2.00 per share, with an accounting value of $710,729, and options to purchase 50,000 shares of our common stock at an exercise price of $2.40 per share, with an accounting value of $236,592.

The options granted on January 7, 2022 vested immediately and expire on the tenth anniversary of the grant date.

On July 11, 2023, under the 2017 Plan, we granted Mr.

Oldridge options to purchase 174,257 shares of our common stock at an exercise price of $2.10 per share, with an accounting value of $322,073.

The options granted on July 11, 2023 vested immediately and expire on the tenth anniversary of the grant date.

All options were vested at December 31, 2023.

Emry has been our Executive Vice President since December 1, 2021.

She was appointed as a member of our board of directors on January 7, 2022.

We entered into an employment agreement, dated as of December 31, 2021 (the “Emry Agreement”), with Mrs.

Emry, whose base salary was increased to $200,000 per year effective on January 1, 2022.

Emry, formerly an executive with Envirotech Drive Systems, Inc., as described above who did not get paid a salary, joined the Company on April 16, 2021 as Controller.

The compensation paid to Mrs.

Emry in 2021 reflects the Controller salary for the period April 16, 2021 through December 31, 2021.

Emry’s employment shall continue until terminated in accordance with the Emry Agreement.

We entered into an employment agreement, dated as of December 31, 2021 (the “Emry Agreement”), with Mrs.

Emry, whose base salary is $200,000 per year.

Emry’s employment shall continue until terminated in accordance with the Emry Agreement.

Emry is terminated without cause or if she terminates her employment for good reason, Mrs.

Emry will be entitled to receive (i) one-year of base salary, (ii) reimbursement of reimbursable expenses in accordance with the Emry Agreement, and (iii) the value of any accrued and unused paid time off as of the date of termination.

On January 7, 2022, under the 2017 Plan, we granted Mrs.

Emry options to purchase 100,000 shares of our common stock at an exercise price of $2.00 per share, with an accounting value of $473,819, and options to purchase 40,893 shares of our common stock at an exercise price of $2.40 per share, with an accounting value of $193,498.

The options granted on January 7, 2022 vested immediately and expire on the tenth anniversary of the grant date.

Rodich was appointed as our Chief Financial Officer on February 3, 2022.

The Company entered into an offer letter with Mr.

Rodich, pursuant to which Mr.

Rodich received an annual base salary of $160,000, payable in semi-monthly installments consistent with the Company’s payroll practices.

Under the offer letter, Mr.

Rodich would also receive stock options to purchase 3,874 shares of the Company’s common stock, vesting over five years, subject to his continued service through the applicable vesting date.

Under the offer letter, Mr.

Rodich would also receive a signing/relocation bonus of $20,000.

On January 31, 2022, under the 2017 Plan, we granted Mr.

Rodich options to purchase 2,763 shares of our common stock at an exercise price of $3.62 per share, with an accounting value of $150, and options to purchase 1,111 shares of our common stock at an exercise price of $9.00 per share, with an accounting value of $56.

The options vest ratably at 1/60th per month over five years and expire on the tenth anniversary of the grant date.

Rodich resigned as Chief Financial Officer of the Company effective February 24, 2023.

On July 11, 2023, under the 2017 Plan, we granted Mrs.

Emry options to purchase 78,238 shares of our common stock at an exercise price of $2.10 per share, with an accounting value of $144,605.

The options granted on July 11, 2023 vested immediately and expire on the tenth anniversary of the grant date.

All options were vested at December 31, 2023.

Campoli served as the Chief Financial Officer and Treasurer from April 17, 2023 to February 23, 2024.

Campoli was granted options to purchase 10,000 shares of our common stock at an exercise price of $2.65 per share on April 19, 2023, with an accounting value of $21,167.

The options granted on April 19, 2023 vest ratably over 3 years and expire on the tenth anniversary of the grant date.

Severance and Change in Control Payments and Benefits

above and in award agreements that set forth the terms and conditions of the stock options granted to such individuals pursuant to the 2017 Plan.

Each such award agreement provides that, in the event of a “transfer of control,”

any unvested portion of such option may vest immediately, subject to the Compensation Committee deciding that.

For such purposes, a “transfer of control”

includes the direct or indirect sale or exchange by our stockholders of all or substantially all of our capital stock, (a) where our stockholders before such sale or exchange do not retain, directly or indirectly, at least a majority of the beneficial interest in our voting stock after such sale or exchange;

Our Named Executive Officers are not entitled to any severance or change in control payments or benefits, other than as provided in the section entitled “Compensation Arrangements with Named Executive Officers” above and in award agreements that set forth the terms and conditions of the stock options granted to such individuals pursuant to the 2017 Plan.

Each such award agreement provides that, in the event of a “transfer of control,” any unvested portion of such option may vest immediately, subject to the Compensation Committee deciding that.

For such purposes, a “transfer of control” includes the direct or indirect sale or exchange by our stockholders of all or substantially all of our capital stock, (a) where our stockholders before such sale or exchange do not retain, directly or indirectly, at least a majority of the beneficial interest in our voting stock after such sale or exchange;

(b) a merger in which we are not the surviving corporation;

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Indemnification of Directors and Officers

Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents.

As permitted by Delaware law, our amended and restated certificate of incorporation provides that, to the fullest extent permitted by Delaware law, no director will be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director.

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They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and other stockholders.

Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions.

At present, there is no pending litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought, and we are not aware of any threatened litigation that may result in material claims for indemnification.

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In addition to the indemnification required in our amended and restated certificate of incorporation and amended and restated bylaws, we have entered into indemnification agreements with each of our directors and executive officers.

These agreements generally provide for the indemnification of such persons for all reasonable expenses and liabilities, including attorneys’

fees, judgments, penalties, fines and settlement amounts, incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were serving in such capacity, to the extent indemnifiable under the law.

These agreements generally provide for the indemnification of such persons for all reasonable expenses and liabilities, including attorneys’ fees, judgments, penalties, fines and settlement amounts, incurred in connection with any action or proceeding brought against them by reason of the fact that they are or were serving in such capacity, to the extent indemnifiable under the law.

We believe that these charter and bylaw provisions and indemnity agreements are necessary to attract and retain qualified persons as directors and executive officers.

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This reserve automatically increased on January 1, 2018 and will continue to increase on each subsequent anniversary through 2027, by an amount equal to the smaller of (a) 3% of the number of shares of common stock issued and outstanding on the immediately preceding December 31, or (b) an amount determined by the Board.

Appropriate adjustments will be made in the number of authorized shares and other numerical limits in the 2017 Plan and in outstanding awards to prevent dilution or enlargement of participants’

rights in the event of a stock split or other change in our capital structure.

Appropriate adjustments will be made in the number of authorized shares and other numerical limits in the 2017 Plan and in outstanding awards to prevent dilution or enlargement of participants’ rights in the event of a stock split or other change in our capital structure.

Shares subject to awards, which expire or are cancelled or forfeited will again become available for issuance under the 2017 Plan.

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The Compensation Committee has the authority to construe and interpret the terms of the 2017 Plan and awards granted under it.

The 2017 Plan provides, subject to certain limitations, for indemnification by us of any director, officer or employee against all reasonable expenses, including attorneys’

fees, incurred in connection with any legal action arising from such person’s action or failure to act in administering the 2017 Plan.

The 2017 Plan provides, subject to certain limitations, for indemnification by us of any director, officer or employee against all reasonable expenses, including attorneys’ fees, incurred in connection with any legal action arising from such person’s action or failure to act in administering the 2017 Plan.

The 2017 Plan authorizes the Compensation Committee, without further stockholder approval, to provide for the cancellation of stock options or stock appreciation rights with exercise prices in excess of the fair market value of the underlying shares of common stock in exchange for new options or other equity awards with exercise prices equal to the fair market value of the underlying common stock or a cash payment.

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Emry, our Executive Vice President.

Their compensation is addressed above under “ Executive Compensation ."

We have a formal policy pursuant to which our non-employee directors are eligible to receive equity awards and annual cash retainers as compensation for service on our Board and committees of our Board.

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Melissa Barcellos

Bradley Dixon

In addition, each non-employee director received 112,000 options (grant date fair value of $207,000) each on July 11, 2023.

These options vested immediately.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth information known to us regarding the beneficial ownership of our common stock as of February 28, 2023, for:

The following table sets forth information known to us regarding the beneficial ownership of our common stock as of March 14, 2024, for:

each person, or group of affiliated persons, known to us to beneficially own more than 5% of our common stock;

each of our directors and nominees for election to the Board;

each of our executive officers named in the summary compensation table included in the Annual Report;

each of our directors;

each of our named executive officers included in the Summary Compensation Table included in this Annual Report;

all of our directors and executive officers as a group.

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The information does not necessarily indicate beneficial ownership for any other purpose, including for purposes of Section 13(d) and Section 13(g) of the Securities Act.

On June 28, 2022, we effected a 1-for-20 reverse stock split of our common stock with no change to authorized shares of common stock.

All share information presented below and elsewhere in this Annual Report on Form 10-K has been retroactively adjusted to reflect the stock split.

Applicable percentage ownership in the following table is based on 15,021,088 shares of our common stock outstanding as of February 28, 2023.

Shares of our common stock subject to options, warrants or other convertible securities that are currently exercisable or exercisable within 60 days after February 28, 2023 are deemed to be outstanding and to be beneficially owned by the person or entity holding such option, warrant or convertible security for the purpose of computing the number and percentage ownership of outstanding shares of that person or entity.

Applicable percentage ownership in the following table is based on 15,520,637 shares of our common stock outstanding as of March 22, 2024.

Shares of our common stock subject to options, warrants or other convertible securities that are currently exercisable or exercisable within 60 days after March 22, 2024 are deemed to be outstanding and to be beneficially owned by the person or entity holding such option, warrant or convertible security for the purpose of computing the number and percentage ownership of outstanding shares of that person or entity.

We did not deem these shares outstanding, however, for the purpose of computing the percentage ownership of any other person or entity.

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Directors and Executive Officers:

Franklin Lim (4)

Melissa Barcellos (5)

Di Pietro (6)

Terri White Elk (7)

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Gerald Douglas Conrod (8)

162315 Family Trust (8)

Represents beneficial ownership of less than 1%.

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Consists of (i) 22,000 shares of our common stock held of record by Phillip W.

Oldridge and (ii) 450,000 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after February 28, 2023.

Oldridge, (ii) 486,609 shares owned indirectly through a family relationship and (iii) 1,537,588 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after March 22, 2024.

Consists of (i) 105,100 shares of our common stock held of record by Susan M.

Emry and (ii) 140,893 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after February 28, 2023.

Consists of 774 shares of our common stock underlying options that were vested and exercisable upon Mr.

Rodich’s employment termination date of February 24, 2023.

Emry and (ii) 550,188 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after March 22, 2024.

Consists of 115,159 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after March 22, 2024.

Represents (i) 94,293 shares of our common stock held of record by Provident Trust Group FBO Cornelia P.

Doherty ROTH IRA, over which Ms.

Barcellos has voting and investment control pursuant to a Voting Trust Agreement dated March 20, 2017 and (ii) 408 shares of our common stock held of record by Melissa Barcellos.

Consists of (i) 250,132 shares of our common stock and (ii) 591,667 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after February 28, 2023.

Barcellos has voting and investment control pursuant to a Voting Trust Agreement dated March 20, 2017, (ii) 809 shares of our common stock held of record by Melissa Barcellos and (iii) 138,302 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after March 22, 2024.

Consists of (i) 8,830 shares of our common stock held of record by Michael A.

Di Pietro and (ii) 138,302 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after March 22, 2024.

Consists of 138,302 shares of our common stock underlying options that are currently exercisable or exercisable within 60 days after March 22, 2024

The information reported is based in part on, and in reliance upon, and without independent investigation of, information provided by Gerald Douglas Conrod in a Schedule 13G filed with the SEC on March 26, 2021.

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In addition to the information reported in such Schedule 13G, the information set forth above includes:

(i) an additional 162,500 shares of our common stock purchased by 162315 Family Trust at the second closing of our previously announced private investment in public equity, or PIPE, transaction, on May 7, 2021, pursuant to that certain Securities Purchase Agreement, dated as of December 24, 2020 (the “Purchase Agreement”), that we entered into with certain institutional and accredited investors and pursuant to which, among other things, we sold and issued, and the investors purchased, shares of our common stock and related warrants to purchase additional shares of our common stock in a series of two closings (the “Financing”);

and (ii) an additional 81,250 shares of common stock underlying warrants issued to 162315 Family Trust at the second closing of the Financing that are exercisable.

The address of Gerald Douglas Conrod is 1961 Douglas Street, Victoria, British Columbia, V8T 4K7, Canada.

The information reported is based in part on, and in reliance upon, and without independent investigation of, information provided by 162315 Family Trust in a Schedule 13G filed with the SEC on March 26, 2021.

As reported in such Schedule 13G, 162315 Family Trust is the beneficial owner of 1,100,884 shares of our common stock, and has sole voting and dispositive power over such shares.

In addition to the information reported in such Schedule 13G, the information set forth above includes:

(i) an additional 162,500 shares of our common stock purchased by 162315 Family Trust at the second closing of the Financing on May 7, 2021;

and (ii) an additional 81,250 shares of common stock underlying warrants issued to 162315 Family Trust at the second closing of the Financing that are exercisable.

The address of 162315 Family Trust is 1103 Goldstream Avenue, Victoria, British Columbia, V9B 2Y9, Canada.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

Other than compensation arrangements for our directors and Named Executive Officers, which are described in the sections titled “Management”

and “Executive Compensation,”

below we describe transactions since January 1, 2021 to which we were a party or will be a party, in which:

Other than compensation arrangements for our directors and Named Executive Officers, which are described in the sections titled “Management” and “Executive Compensation,” below we describe transactions since January 1, 2022 to which we were a party or will be a party, in which:

the amounts involved exceeded or will exceed $120,000;

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As more fully discussed in the audited financial statements of Envirotech Vehicles, Inc.

for the years ended December 31, 2022 and 2021 located at Item 8 of this Annual Report on Form 10-K, the Company has entered into leases with SRI Professional Services, Incorporated (“SRI”), including the SRI Equipment Leases and the SRI Office Leases.

Oldridge, the Company’s Chief Executive Officer and Chairman of the Board, and a member of its board of directors, serves as an executive officer and a member of the board of directors of SRI.

In addition to the SRI Equipment Leases, and the SRI Office Leases, during 2021, the Company purchased a heavy-duty pick-up truck and a trailer from SRI for $81,293.

The Company uses such equipment to transport its electric vehicles to and from customer demonstration sites and to and from equipment outfitters when the vehicles have custom bodies and accessories added for specific customers.

During 2021, the Company purchased two used automobiles from Mr.

Oldridge for an aggregate purchase price of $33,250.

The Company purchased such vehicles from Mr.

Oldridge for use by the Company’s employees for sales calls and other business purposes.

In connection with the closing of the Merger in March 2021, the Company purchased two electric trucks from Mr.

Oldridge for an aggregate purchase price of $128,000.

The purchase price for such vehicles was paid in full to Mr.

Oldridge during 2021.

Prior to the closing of the Merger, Mr.

Oldridge had permitted the vehicles to be used by the Company as customer demonstration vehicles for no cost.

The purchase price of $64,000 per vehicle was less than the purchase price of $83,000 per vehicle that ADOMANI, Inc.

had paid to Envirotech Drive Systems, Inc.

for similar vehicles in prior transactions.

One of the vehicles purchased by the Company was subsequently sold to a customer of the Company in March 2021 and the second truck remains in the Company’s inventory at December 31, 2022.

The Company has also entered into a commercial lease agreement (the “ABCI Office Lease”) with Alpha Bravo Charlie, Inc.

(“ABCI”) that commenced on April 1, 2020, for the lease of office space in Porterville, California.

for the years ended December 31, 2023 and 2022 located at Item 8, Part II of this Annual Report, the Company has entered into leases with SRI Professional Services, Incorporated (“SRI”), including the SRI Equipment Leases and the SRI Office Leases.

Oldridge, the Company’s Chief Executive Officer and Chairman of the Board, and a member of its board of directors, serves as an executive officer and a member of the board of directors of SRI.

The Company has also entered into a commercial lease agreement (the “ABCI Office Lease”) with Alpha Bravo Charlie, Inc.

(“ABCI”) that commenced on April 1, 2020, for the lease of office space in Porterville, California.

Oldridge is a director of ABCI.

During the second quarter of 2023, the Company purchased a vehicle from Phillip W.

Oldridge for $45,216, which remains unpaid as of December 31, 2023.

The following table summarizes these related party transactions for the years ending December 31, 2023 and 2022:

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SRI Office Lease

Truck & trailer purchase from SRI

Vehicles purchased from Phillip W.

ABCI Office leases

Indemnification of Directors and Officers

Our amended and restated bylaws provide that we will indemnify each of our directors and officers to the fullest extent permitted by the Delaware General Corporation Law.

Further, we have entered into indemnification agreements with each of our directors and executive officers.

These agreements require us, among other things, to indemnify these individuals for certain expenses (including attorneys’

fees), judgments, fines and settlement amounts reasonably incurred by such person in any action or proceeding, including any action by or in our right, on account of any services undertaken by such person on behalf of our company or that person’s status as a member of our Board of Directors to the maximum extent allowed under Delaware law.

We also maintain directors’

and officers’

liability insurance.

For further information, see the section titled “Executive Compensation—Limitations of Liability;

Indemnification of Directors and Officers.”

Policies and Procedures for Related Person Transactions

All future transactions, if any, between us and our officers, directors and principal stockholders and their affiliates, as well as any transactions between us and any entity with which our officers, directors or principal stockholders are affiliated will be reviewed and approved or ratified in accordance with policies and procedures adopted by our board of directors.

Such policies and procedures require that related person transactions be approved by the Audit Committee or our board of directors or otherwise in accordance with the then applicable SEC rules and regulations governing the approval of such transactions.

The Audit Committee and the board of directors have adopted policies and procedures for review of, and standards for approval of related party transactions.

These policies and procedures have not been and will not be applied to the related party transactions described above.

All future affiliated transactions will be made or entered into on terms that are no less favorable to us than those that can be obtained from any unaffiliated third party.

A majority of the independent, disinterested members of our board of directors will approve future affiliated transactions, and we will maintain at least two independent directors on our board of directors to review all material transactions with affiliates.

PRINCIPAL ACCOUNTING FEES AND SERVICES

Barton CPA, PLLC served as our independent registered public accounting firm for the fiscal year ended December 31, 2022.

MaloneBailey, LLP served as our independent registered public accounting firm for the fiscal year ended December 31, 2021 and served in this capacity for ADOMANI, Inc.

each of the eight fiscal years ended December 31, 2020.

During this time, through and including December 31, 2022, there were no disagreements between us and Barton CPA, PLLC and MaloneBailey, LLP on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.

PRINCIPAL ACCOUNTING FEES AND SERVICES

Barton CPA, PLLC served as our independent registered public accounting firm for the fiscal year ended December 31, 2023for the fiscal year ended December 31, 2022 .

Independent Registered Public Accounting Firm Fees

The following table shows the fees that were billed for audit and other services provided during the fiscal years ended December 31, 2022 and 2021:

The following table shows the fees that were billed for audit and other services during the fiscal years endedDecember 31, 2023 and 2022 :

For the Fiscal Year Ended

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All Other Fees (4)

Audit Fees consist of professional services rendered in connection with the audit of our annual financial statements, including the audited financial statements presented in our 2022 Annual Report on Form 10-K, and the review of our financial statements included in 2022 quarterly reports, along with services that are normally provided by the independent registered accountants in connection with statutory and regulatory filings or engagements for those fiscal years and timely review of our quarterly consolidated financial statements.

Audit-related fees consist of fees for professional services rendered for assurance and related services that were reasonably related to the performance of the audit or review of our consolidated financial statements that are not reported under “Audit Fees.” There were no separate charges in either period related to such services.

Audit Fees consist of professional services rendered in connection with the audit of our annual financial statements, including the audited financial statements presented in our 2023 Annual Report, and the review of our financial statements included in 2023 quarterly reports, along with services that are normally provided by the independent registered accountants in connection with statutory and regulatory filings or engagements for those fiscal years and timely review of our quarterly consolidated financial statements.

Audit-related fees consist of fees for professional services rendered for assurance and related services that were reasonably related to the performance of the audit or review of our consolidated financial statements that are not reported under “Audit Fees.” There were no separate charges in either period related to such services.

Tax Fees consist of fees for professional services for tax compliance, tax advice and tax planning.

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Financial Statements .

The financial statements filed as part of this Annual Report are listed in the “Index to Consolidated Financial Statements”

under Part II, Item 8 of this Annual Report.

The financial statements filed as part of this Annual Report are listed in the “Index to Consolidated Financial Statements” under Part II, Item 8 of this Annual Report.

Financial Statement Schedules .

14 unchanged sentences

Form of Warrant

Description of Registrant’s Securities

Voting Trust Agreement, by and among Provident Trust Group FBO Cornelia P.

Description of Registrant’s Securities

Voting Trust Agreement, by and among Provident Trust Group FBO Cornelia P.

Doherty ROTH IRA, Connie Doherty Living Trust Dated May 1, 1996, Gary Nettles as Voting Trustee, and the Company, dated March 20, 2017

Form of Indemnity Agreement

Patent License-Use and Manufacturing Agreement, by and between Silicon Turbine Systems, Inc.

Patent License-Use and Manufacturing Agreement, by and between Silicon Turbine Systems, Inc.

and the Company, dated November 7, 2014

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Rodich dated February 3, 2022

Letter of MaloneBailey, LLP, date August 11, 2023.

Incorporated by Reference

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Subsidiaries of the Company

Consent of Barton CPA, PLLC, independent registered public accounting firm

Consent of MaloneBailey, LLP, independent registered public accounting firm

Consent of Barton CPA, PLLC, independent registered public accounting firm

Power of Attorney (included on signature page)

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Section 1350 Certification of Chief Executive Officer and Chief Financial Officer, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

[Clawback Policy] 68

Inline XBRL Instance Document (the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document).*

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Indicates a management contract or compensatory plan.

The information in Exhibit 32.1 shall not be deemed “filed”

for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Securities Act, or the Exchange Act (including this report), unless the Registrant specifically incorporates the foregoing information into those documents by reference.

In accordance with Rule 402 of Regulation S-T, this interactive data file is deemed not filed or part of this Annual Report on Form 10-K for purposes of Sections 11 or 12 of the Securities Act or Section 18 of the Exchange Act and otherwise is not subject to liability under these sections.

The information in Exhibit 32.1 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Securities Act, or the Exchange Act (including this Annual Report), unless the Registrant specifically incorporates the foregoing information into those documents by reference.

In accordance with Rule 402 of Regulation S-T, this interactive data file is deemed not filed or part of this Annual Report for purposes of Sections 11 or 12 of the Securities Act or Section 18 of the Exchange Act and otherwise is not subject to liability under these sections.

FORM 10-K SUMMARY

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

ENVIROTECH VEHICLES INC. 

September 25, 2023

ENVIROTECH VEHICLES INC.

March 28, 2024

/s/ Phillip W.

Chief Executive Officer

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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Phillip W.

Oldridge, Christian S.

Rodich and Susan M.

Oldridge, Franklin Lim and Susan M.

Emry, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this report, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.

2 unchanged sentences

Chief Executive Officer and Director

September 25, 2023

March 28, 2024

(Principal Executive Officer)

/s/ Douglas M.

Chief Financial Officer and Treasurer

September 25, 2023

/s/ Franklin Lim

Chief Financial Officer

March 28, 2024

/s/ Melissa Barcellos

September 25, 2023

March 28, 2024

Melissa Barcellos

/s/ Michael Di Pietro

September 25, 2023

March 28, 2024

Michael Di Pietro

September 25, 2023

/s/ Terri White Elk

September 25, 2023

March 28, 2024

Terri White Elk

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures