Item 8.01 Other Events.
On June 29, 2021, EVgo Inc. (the
“Company”), then operating under the name Climate Change Crisis Real Impact I Acquisition Corporation
(“CRIS”), held a virtual special meeting (the “Special Meeting”) to approve certain matters relating to its
proposed business combination transaction (the “Business Commination”) with EVgo Holdings, LLC, EVgo Holdco, LLC and
EVgo OpCo, LLC (collectively, the “EVgo Parties”) pursuant to which CRIS and the EVgo Parties would combine to organize
in a customary “Up-C” structure. One of these matters was a proposal to amend CRIS’s certificate of incorporation
(the “Charter Amendment Proposal”) in order to, among other things, increase authorized shares of Class A common stock,
par value $0.0001 per share (the “Class A common stock”), from 100,000,000 shares to 1,200,000,000 shares and Class B
common stock, par value $0.0001 per share (the “Class B common stock”), from 10,000,000 shares to 400,000,000 shares and amend the terms of the Class B common stock.
At the Special Meeting, CRIS’s stockholders approved all proposals relating to the Business Combination, including the Charter
Amendment Proposal, which was approved by a majority of the outstanding shares of Class A common stock and Class B common stock,
voting as a single class. On July 1, 2021, the parties closed the Business Combination and the Company’s certificate of
incorporation, as amended to give effect to the Charter Amendment Proposal (the “New Charter”), became effective.
Due in part to a recent ruling by the Delaware Court of Chancery, there is uncertainty as to whether Section 242(b)(2) of the Delaware
General Corporation Law (the “DGCL”) would have required the Charter Amendment Proposal to obtain separate votes of the Class
A common stock and Class B common stock. In particular, the Company has identified uncertainty with respect to whether (i) the increase
in the number of authorized shares should have been approved by separate votes of each of the majority of CRIS's then-outstanding shares
of Class A common stock and Class B common stock and (ii) the terms of the Class B common stock should have been approved by a majority
of CRIS's then-outstanding shares of Class B common stock.
The Company has been proceeding with the
understanding that the Charter Amendment Proposal and the New Charter are valid, including by issuing securities in reliance
thereon. In light of this recent ruling, however, the Company filed a petition in the Delaware Court of Chancery pursuant to
Section 205 of the DGCL on February 3, 2023 seeking (i) the validation of the stockholder vote approving the Charter Amendment
Proposal and (ii) the validation and declaration of effectiveness of (a) the New Charter (including its filing and effectiveness, in
each case as of July 1, 2021) and (b) the securities issued or to be issued in reliance on the approval of the Charter Amendment
Proposal and/or the validity of the New Charter, as of the respective dates of their issuance (including the 5,750,000 shares of
Class A common stock into which the shares of Class B common stock converted upon the consummation of the Business Combination). A
copy of the petition in the form filed with the Delaware Court of Chancery is available at investors.evgo.com. Section 205 of the
DGCL permits the Delaware Court of Chancery, in its discretion, to ratify and validate potentially defective corporate acts after
considering a variety of factors.
If the Company is not successful in the
Section 205 proceeding, the uncertainty with respect to its capitalization resulting from the Delaware Court of Chancery’s
ruling referenced above could have a material adverse impact on the Company, including on its ability to issue stock-based
compensation to its employees, directors and officers or complete equity or debt
financing transactions until the underlying issues are definitively resolved. The Company believes
that the persistence of such uncertainty could also cast doubt on the validity of future stockholder votes and impair its ability to
pursue strategic combinations and attract and retain employees.
The information that may be obtained solely through the websites referenced in this report is not incorporated by reference herein.
Forward-Looking Statements
This report contains “forward-looking statements”
within the meaning of the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking
statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,”
“intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target”
or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These
forward-looking statements are based on management’s current expectations or beliefs and are subject to numerous assumptions, risks
and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements.
These forward-looking statements include, but
are not limited to, statements regarding the outcome or the timing of the Section 205 proceeding described above, which is subject to
uncertainties inherent in the litigation process and may not be resolved timely, or at all, or regarding the consequences if the
Company is unsuccessful in the Section 205 proceeding and the effects of persistent uncertainty on the Company’s operations.
Additional risks and uncertainties that
could affect the Company’s financial results are included under the captions “Risk Factors” and
“Management’s Discussion and Analysis of Financial Condition and Results of Operations of EVgo” in the
Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Securities and Exchange Commission
(the “SEC”) on March 24, 2022 and the caption “Risk Factors” in its Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 2022, June 30, 2022 and September 30, 2022, in each case filed with the SEC, as well as its other filings with the SEC, copies of which are available on the
Company’s website
at investors.evgo.com, and on the SEC’s website at www.sec.gov. All forward-looking statements in this report are based
on information available to us as of the date hereof, and the
Company does not assume any obligation to update the forward-looking
statements provided to reflect events that occur or circumstances that exist after the date on which they were made, except as
required by applicable law.