What changed in this filing

/stocks — the workspaceLOADING

Item 9A. Controls and Procedures

2024-03-06 compared with 2023-03-30 · 43 added, 75 removed, 114 unchanged (51% of the section changed)

4 unchanged sentences

Under the supervision of the Company’s Board of Directors and with the participation of management, including the Company’s Chief Executive Officer and Chief Financial Officer (the “certifying officers”), the Company conducted an evaluation of the effectiveness of the design and operation of its disclosure controls and procedures (as defined in and pursuant to Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of December 31, 2023.

The certifying officers concluded that, as a result of the material weaknesses in internal control over financial reporting described below in “Management’s Report on Internal Control Over Financial Reporting”, the Company’s disclosure controls and procedures were not effective as of December 31, 2022;

accordingly, the Company is implementing additional policies and procedures to remediate these shortcomings as outlined below.

Notwithstanding the identified material weaknesses, the Company’s management believes the consolidated financial statements included in this Annual Report present fairly, in all material respects, the Company’s financial position, results of operations and cash flows as of and for the periods presented, in accordance with U.S.

The certifying officers concluded that, as a result of the material weakness in internal control over financial reporting described below in “Management’s Report on Internal Control Over Financial Reporting”, the Company’s disclosure controls and procedures were not effective as of December 31, 2023;

accordingly, the Company is implementing additional procedures to remediate these shortcomings as outlined below.

Notwithstanding the identified material weakness, the Company’s management believes the consolidated financial statements included in this Annual Report present fairly, in all material respects, the Company’s financial position, results of operations and cash flows as of and for the periods presented, in accordance with U.S.

Management’s Report on Internal Control Over Financial Reporting

11 unchanged sentences

In connection with enhancing the Company’s accounting, control and compliance functions during 2023, the Company undertook a comprehensive approach to this evaluation, which included a review of any material weaknesses previously identified as of December 31, 2022.

Based on that evaluation, management concluded that the Company’s internal control over financial reporting was not effective as of December 31, 2022 due to the material weaknesses identified in the paragraph below, which include all material weaknesses as of December 31, 2021 that were identified in the Company’s annual report for the period then ended and that continue to persist.

The following material weaknesses in internal control over financial reporting were identified:

as a result of the Company lacking a sufficient number of trained resources to fulfill internal control responsibilities, the Company did not have an effective risk assessment process that evaluated risks at a sufficient level of detail to identify all relevant risks of material misstatement across the entity and the Company did not have an effective information and communication process that identified and assessed the controls necessary to ensure the reliability of information used in financial reporting.

As a consequence, the Company did not effectively design, implement and operate process-level controls and effective general information technology (“IT”) controls relevant to all of its financial reporting processes.

Notwithstanding the material weaknesses in internal control over financial reporting identified above, they did not result in any material misstatements to the Company’s consolidated financial statements as of and for the year ended December 31, 2022.

Based on that evaluation, management concluded the Company’s internal control over financial reporting was not effective as of December 31, 2023 due to the material weakness identified in the paragraph below.

The following material weakness in internal control over financial reporting was identified as of December 31, 2023:

due to an ineffective information and communication process to ensure the completeness and accuracy of underlying data and reports, the Company did not effectively design, implement and operate process-level controls and effective general information technology (“IT”) controls relevant to its financial reporting processes.

Notwithstanding the material weakness in internal control over financial reporting identified above, this did not result in any material misstatements to the Company’s consolidated financial statements as of and for the year ended December 31, 2023.

This Annual Report does not include an attestation report of the Company’s independent registered public accounting firm due to the established rules of the SEC.

Remediation Plan for Existing Material Weaknesses in Internal Control over Financial Reporting

In order to address the identified material weaknesses, the Company has established a remediation plan which includes the following measures:

● Evaluating skill set gaps and hiring additional accounting, financial reporting, and compliance personnel (including both internal and external resources), as needed, with public company experience to develop and implement additional policies, procedures and controls;

● Providing ongoing training for key personnel responsible for accounting, financial reporting and internal control over financial reporting;

● Designing and implementing a comprehensive and continuous risk assessment process that identifies and assesses risks of material misstatement across the entity and helps ensure that related internal controls are properly designed and in place to respond to those risks in the Company’s financial reporting;

● Designing and implementing controls over the completeness and accuracy of information used in financial reporting;

● Designing and implementing process-level controls and effective general IT controls relevant to all of the Company’s financial reporting processes.

The Company is committed to remediating the material weaknesses and is making progress in that effort.

Remediation Plan for Existing Material Weakness in Internal Control over Financial Reporting

During 2023, the Company implemented remediation plans including hiring qualified personnel with the appropriate level of knowledge related to accounting transactions, accounting matters, and relevant systems.

The Company also engaged an outside internal audit service provider to assist the Company with completing a risk assessment based on criteria established by COSO to identify internal control over financial reporting risks and control objectives.

The Company also evaluated its IT systems and related processes, and the Company is expanding the functionality of its internal systems to provide for higher levels of automation and assurance in its financial reporting function.

These changes are expected to result in the generation of reliable information that can be used to execute process and IT controls in a repeatable manner.

The actions the Company is taking are subject to ongoing senior management review, as well as oversight from the Company’s Board of Directors.

When fully implemented and operational, the Company believes the measures described above will remediate the underlying causes of the control deficiencies that gave rise to the material weaknesses and strengthen the Company’s internal control over financial reporting.

When fully implemented and operational, the Company believes the measures described above will remediate the underlying causes of the control deficiencies that gave rise to the material weakness and strengthen the Company’s internal control over financial reporting.

However, remediation efforts may continue beyond the fiscal year ending December 31, 2024.

The Company will not be able to fully remediate these material weaknesses until these steps have been completed and have been operating effectively for a sufficient period of time.

The Company may also identify additional measures that may be required to remediate the material weaknesses in the Company’s internal control over financial reporting, necessitating further action.

The Company will not be able to fully remediate this material weakness until these steps have been completed and have been operating effectively for a sufficient period of time.

The Company may also identify additional measures that may be required to remediate the material weakness in the Company’s internal control over financial reporting, necessitating further action.

Changes in Internal Control over Financial Reporting

Other than the material weaknesses discussed above, there has been no change in the Company’s internal control over financial reporting during the quarter ended December 31, 2022 that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting.

Other than the remediation progress discussed above, there has been no change in the Company’s internal control over financial reporting during the quarter ended December 31, 2023 that has materially affected, or is reasonably likely to materially affect, its internal control over financial reporting.

Other Information.

Change in Control Plan

On March 27, 2023, the Compensation Committee of the Board, with input from Pay Governance — the compensation advisor it retained in connection with these matters, including regarding market practices therefor — recommended and the Board approved the EVgo Inc.

Executive Change in Control and Severance Plan (the “Change in Control Severance Plan”), for the benefit of employees in certain senior positions from time to time.

Under the Change in Control Severance Plan, in the event that, within the period beginning on the date that is three months prior to a “change in control” (which is generally consistent with the change in control definition in the 2021 Incentive Plan) and ending on the date that is 12 months following such change in control, a plan participant’s employment is terminated either by the participant for “good reason,” or by the Company, its subsidiaries or any successor entity other than for “cause,” death or “disability” (as such terms are defined in the Change in Control Severance Plan), such participant will receive the following benefits, provided the participant timely signs and does not revoke a separation agreement and release of claims in the Company’s favor and otherwise complies with the terms of the Change in Control Severance Plan:

(a) cash severance payments equal to two times base salary and target bonus for EVgo’s Chief Executive Officer and one times base salary and target bonus for “C-level” direct reports of EVgo’s Chief Executive Officer;

(b) full acceleration of time-based Company equity awards, and pro rata acceleration of performance-based Company equity awards based on target performance;

and (c) payment of the employer-portion of COBRA premiums for continued medical coverage for up to 18 months for EVgo’s Chief Executive Officer and up to 12 months for “C-level” direct reports of EVgo’s Chief Executive Officer, and each of their respective eligible dependents, if any.

The change in control benefits provided for in the Change in Control Severance Plan supersede any conflicting change in control provisions in the employment agreements and offer letters entered into between the Company and each participant;

however, the change in control features of any Management Holdings Incentive Units held by a participant are not impacted by the Change in Control Severance Plan.

The foregoing is a summary of the Change in Control Severance Plan and should be read in conjunction with the full text of the Change in Control Severance Plan, which is attached as Exhibit 10.12 to this Annual Report.

Capitalized terms used in the foregoing summary of the Change in Control Severance Plan but not defined herein have the meanings ascribed to them in the Change in Control Severance Plan.

Resignation of John King and Appointment of Peter Anderson to the Board

On March 27, 2023, John King resigned as a member of the Board.

King’s resignation as a director was not the result of any disagreement with the Company on any matter relating to the Company’s operations, policies or practices.

On March 27, 2023, the Board, in order to fill the newly created directorship that resulted from Mr.

King’s resignation and upon the recommendation of its Nominating and Governance Committee, elected Peter Anderson as a member of the Board, effective immediately.

Anderson is a Senior Vice President and member of the investment team at LS Power.

Anderson’s role at LS Power, his responsibilities include origination, mergers and acquisitions, financing, due diligence, and asset management for LS Power’s energy transition and conventional generation investments.

During his time at LS Power, Mr.

Anderson has engaged in a variety of transactions across the energy sector, including transportation electrification, renewable natural gas, distributed generation, and conventional and renewable generation.

Prior to joining LS Power in 2014, Mr.

Anderson was an associate in Barclays’s Power and Gas Commodities Group from 2011 to 2014.

In that role, he focused on structured power and gas commodity transactions.

Anderson holds a B.S.

in Commerce with a concentration in Finance and a B.S.

in Mathematics from the University of Virginia.

EVgo believes Mr.

extensive experience in the transportation electrification, power generation and renewable energy sectors makes him well suited to serve on the Board.

Anderson was elected to the Board pursuant to the A&R Nomination Agreement, which grants EVgo Holdings the right to designate up to five directors to the Board.

There are no family relationships between Mr.

Anderson and any director or executive officer of the Company, and Mr.

Anderson does not have any direct or indirect material interest in any transaction or proposed transaction required to be reported under Item 404(a) of Regulation S-K.

During the three months ended December 31, 2023, the following Section 16 officer adopted , modified or terminated a “Rule 10b5-1 trading arrangement” (as defined in Item 408 of Regulation S-K of the Exchange Act):

Badar Khan , the Company’s Chief Executive Officer and a member of the Company’s Board of Directors, adopted a new 10b5-1 trading plan on December 21, 2023 (with the first trade under the new plan scheduled for May 18, 2024).

The trading plan will be effective until December 31, 2024 (or such earlier time as provided pursuant to the terms of the trading plan) to sell 246,596 shares of the Company’s Class A Common Stock.

There were no “non-Rule 10b5-1 trading arrangements” (as defined in Item 408 of Regulation S-K of the Exchange Act) adopted, modified or terminated during the fiscal quarter ended December 31, 2023 by any of the Company’s Section 16 officers or directors.

Each of the existing Rule 10b5-1 trading arrangements of the Company’s Section 16 officers are in compliance with the Company’s Insider Trading Policy, and any actual sale transactions made pursuant to such trading arrangements are disclosed publicly in Section 16 filings with the SEC in accordance with applicable securities laws, rules and regulations.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

16 unchanged sentences

Consolidated Balance Sheets

Consolidated Statements of Operations and Comprehensive Income (Loss)

Consolidated Statements of Stockholders’ and Member’s Equity (Deficit)

Consolidated Statements of Operations

Consolidated Statements of Stockholders’ Deficit

Consolidated Statements of Cash Flows

4 unchanged sentences

Business Combination Agreement, dated as of January 21, 2021, by and among the Company, CRIS Thunder Merger LLC, EVgo Holdings, LLC, EVgo Holdco, LLC and EVgo OpCo, LLC (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on January 22, 2021).

Stock Purchase Agreement, dated July 9, 2021, by and among innogy e-Mobility US LLC, innogy SE solely in its capacity as guarantor and EVgo Recargo HoldCo LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 14, 2021).

Second Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 8, 2021).

Third Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 22, 2023).

Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 8, 2021).

4 unchanged sentences

Warrant Agreement, dated September 29, 2020, between the Company and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on October 5, 2020).

Description of Securities.

Description of Securities (incorporated by reference to Exhibit 4.4 to the Company’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission on March 30, 2023).

Sponsor Agreement, dated as of January 21, 2021, by and among the Company, EVgo Holdco, LLC, Climate Change Crisis Real Impact I Acquisition Holdings, LLC and certain investors (incorporated by reference to Exhibit E to the Business Combination Agreement, filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on January 22, 2021).

9 unchanged sentences

2021 Long Term Incentive Plan (incorporated by reference to Exhibit 10.10 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 8, 2021).

Form of Restricted Stock Unit Agreement (Executive) adopted pursuant to the EVgo 2021 Long Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on November 8, 2023).

Form of Restricted Stock Unit Agreement (Performance-Based) adopted pursuant to the EVgo 2021 Long Term Incentive Plan.

Form of Stock Option Agreement adopted pursuant to the EVgo Inc.

2021 Long Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on May 13, 2022).

Executive Change in Control and Severance Plan.

Form of Stock Option Agreement (Executive) adopted pursuant to the EVgo Inc.

2021 Long Term Incentive Plan.

Executive Change in Control and Severance Plan (incorporated by reference to Exhibit 10.12 to the Company’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission on March 30, 2023).

Employment Agreement, dated August 1, 2023, between EVgo Services LLC and Badar Khan (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 2, 2023).

Employment Agreement between EVgo Services LLC and Catherine Zoi, dated as of January 15, 2020 (incorporated by reference to Exhibit 10.11 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 8, 2021).

Transition Agreement, dated August 1, 2023, between EVgo Inc., EVgo Services LLC, EVgo Holdings, LLC, EVgo Management Holdings, LLC and Catherine Zoi (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 2, 2023).

Employment Agreement, dated as of January 15, 2020, between EVgo Services LLC and Olga Shevorenkova (incorporated by reference to Exhibit 10.12 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 8, 2021).

Employment Agreement, dated as of January 1, 2022, between EVgo Services LLC and Dennis Kish.

Distribution Agreement, dated as of November 10, 2022, by and among the Company and J.P.

Morgan Securities LLC, Evercore Group L.L.C.

and Goldman Sachs & Co.

LLC (incorporated by reference to Exhibit 1.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on November 10, 2022).

Amended & Restated Employment Agreement, dated January 17, 2024, between EVgo Services LLC and Dennis Kish (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on January 17, 2024).

Insider Trading Policy, amended and restated as of December 21, 2023.

List of Subsidiaries.

4 unchanged sentences

Section 1350.

Executive Compensation Clawback Policy, effective December 1, 2023.

XBRL Instance Document.

5 unchanged sentences

Cover Page Interactive Data File (formatted as Inline XBRL document and included in Exhibit 101).

The schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2).

The schedules to this Exhibit have been omitted in accordance with Regulation S-K Items 601(a)(5) and 601(b)(2).

The Company agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon its request.

13 unchanged sentences

Allowance for deferred tax asset

1 Represents an allowance on the deferred tax asset related to the Company’s investment in EVgo OpCo and therefore is an adjustment to equity.

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, on March 6, 2024.

/s/ Catherine Zoi

Catherine Zoi

/s/ Badar Khan

Chief Executive Officer and Director

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below on March 6, 2024 by the following persons on behalf of the registrant and in the capacities indicated:

/s/ Catherine Zoi

/s/ Badar Khan

Chief Executive Officer and Director

Catherine Zoi

(Principal Executive Officer)

6 unchanged sentences

Chairman of the Board and Director

/s/ Kate Brandt

/s/ Peter Anderson

Peter Anderson

/s/ Joseph Esteves

2 unchanged sentences

Darpan Kapadia

/s/ Badar Khan

/s/ Peter Anderson

Peter Anderson

/s/ Katherine Motlagh

Katherine Motlagh

/s/ Rodney Slater

Rodney Slater

/s/ Jonathan Seelig

Jonathan Seelig

/s/ Paul Segal

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