As filed with the Securities and Exchange Commission on June
20, 2014
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
___________________________
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF
1933
KANDI TECHNOLOGIES GROUP,
INC.
(Exact Name of Registrant as Specified in Its
Charter)
Delaware
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90-0363723
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(State or Other Jurisdiction of Incorporation or Organization)
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(I.R.S. Employer Identification Number)
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Jinhua City Industrial Zone
Jinhua, Zhejiang
Province
Peoples Republic of China
Post Code 321016
(86 - 579) 82239856
(Address, Including Zip Code, and
Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Hu Xiaoming, Chief Executive Officer
Kandi
Technologies Group, Inc.
Jinhua City Industrial Zone
Jinhua, Zhejiang Province
Peoples Republic of China
Post Code 321016
(86 - 579) 82239856
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent
for Service)
Copies to:
Elizabeth F. Chen, Esq.
Eric M. Hellige,
Esq.
Pryor Cashman LLP
7 Times Square
New York,
New York 10036
(212) 421-4100
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this registration
statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. [_]
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to rule
413(b) under the Securities Act, check the following box. [_]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer,
accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act:
Large accelerated filer [_]
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Accelerated filer [X]
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Non-accelerated filer [_]
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Smaller reporting company [_]
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(Do not check if a smaller
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reporting company)
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CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities
To Be Registered
(1)
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Amount
To Be
Registered
(1)
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Proposed
Maximum
Offering Price
Per Share
(2)
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Proposed
Maximum
Aggregate
Offering Price
(2)
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Amount Of
Registration
Fee
(3)
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Common Stock, par value $0.001 per share
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Preferred Stock, par value $0.001 per share
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Debt Securities
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Warrants
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Rights
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Units
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TOTAL
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$300,000,000
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N/A
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$300,000,000
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$
38,640
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(1)
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There are being registered under this Registration
Statement such indeterminate number of shares of common stock and
preferred stock, such indeterminate principal amount of debt securities,
such indeterminate number of warrants to purchase common stock, preferred
stock and/or debt securities, such indeterminate number of rights to
purchase common stock or preferred stock and such indeterminate number of
units as may be sold by the Registrant from time to time, which together
shall have an aggregate initial offering price not to exceed $300,000,000.
If the Registrant issues any debt securities at an original issue
discount, then the offering price of such debt securities shall be in such
greater principal amount at maturity as shall result in an aggregate
offering price not to exceed $300,000,000, less the aggregate dollar
amount of all securities previously issued hereunder. The Registrant may sell any
securities it is registering under this Registration Statement separately
or as units with the other securities it is registering under this
Registration Statement. The Registrant will determine, from time to time,
the proposed maximum offering price per unit in connection with its
issuance of the securities it is registering under this Registration
Statement. The securities it is registering under this Registration
Statement also include such indeterminate number of shares of common stock
and preferred stock and such indeterminate principal amount of debt
securities as the Registrant may issue upon conversion of or exchange for
preferred stock or debt securities that provide for conversion or
exchange, upon exercise of warrants or rights or pursuant to the
anti-dilution provisions of any of such securities. In addition, pursuant
to Rule 416 under the Securities Act of 1933 (the Securities Act), the
shares the Registrant is registering under this Registration Statement
include such indeterminate number of shares of common stock and preferred
stock as may be issuable with respect to the shares the Registrant is
registering as a result of stock splits, stock dividends or similar
transactions.
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(2)
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The Registrant will determine the proposed maximum
aggregate offering price per class of security from time to time in
connection with its issuance of the securities the Registrant is
registering under this Registration Statement and the Registrant is not
specifying such price as to each class of security pursuant to General
Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities
Act.
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___________________
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until the Registration Statement shall
become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not
complete and may be changed. This prospectus is not an offer to sell these
securities, and it is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 20, 2014
PRELIMINARY PROSPECTUS
Kandi Technologies Group, Inc.
$300,000,000
Common Stock
Preferred Stock
Debt
Securities
Warrants
Rights
Units
_________________________________________
We
may offer from time to time shares of our common stock, preferred stock, senior
debt securities (which may be convertible into or exchangeable for common
stock), subordinated debt securities (which may be convertible into or
exchangeable for common stock), warrants, rights and units that include any of
these securities. The aggregate initial offering price of the securities sold
under this prospectus will not exceed $300,000,000. We will offer the securities
in amounts, at prices and on terms to be determined at the time of the offering.
Each
time we sell securities hereunder, we will attach a supplement to this
prospectus that contains specific information about the terms of the offering,
including the price at which we are offering the securities to the public. The
prospectus supplement may also add, update or change information contained or
incorporated in this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these offerings. You
should read this prospectus, the information incorporated by reference in this
prospectus, the applicable prospectus supplement and any applicable free writing
prospectus carefully before you invest in our securities.
The
securities hereunder may be offered directly by us, through agents designated
from time to time by us or to or through underwriters or dealers. If any agents,
dealers or underwriters are involved in the sale of any securities, their names,
and any applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth, or will be calculable from the
information set forth, in the applicable prospectus supplement. See the section
entitled About This Prospectus for more information.
Our common stock is listed on the NASDAQ Global Select Market under the symbol
KNDI.
Investing
in securities involves certain risks. See Risk Factors beginning on page 4 of
this prospectus and in the applicable prospectus supplement, as updated in our
future filings made with the Securities and Exchange Commission that are
incorporated by reference into this prospectus. You should carefully read and
consider these risk factors before you invest in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
_______________________________
The date of this prospectus
is
,
2014
.
TABLE OF CONTENTS
The
distribution of this prospectus may be restricted by law in certain
jurisdictions. You should inform yourself about and observe any of these
restrictions. If you are in a jurisdiction where offers to sell, or
solicitations of offers to purchase, the securities offered by this document are
unlawful, or if you are a person to whom it is unlawful to direct these types of
activities, then the offer presented in this prospectus does not extend to you.
We
have not authorized anyone to give any information or make any representation
about us that is different from, or in addition to, that contained in this
prospectus, including in any of the materials that we have incorporated by
reference into this prospectus, any accompanying prospectus supplement, and any
free writing prospectus prepared or authorized by us. Therefore, if anyone does
give you information of this sort, you should not rely on it as authorized by
us. You should rely only on the information contained or incorporated by
reference in this prospectus and any accompanying prospectus supplement.
You
should not assume that the information contained in this prospectus and any
accompanying supplement to this prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have
incorporated by reference is correct on any date subsequent to the date of the
document incorporated by reference, even though this prospectus and any
accompanying supplement to this prospectus is delivered or securities are sold
on a later date. Neither the delivery of this prospectus, nor any sale made
hereunder, shall under any circumstances create any implication that there has
been no change in our affairs since the date hereof or that the information
incorporated by reference herein is correct as of any time subsequent to the
date of such information.
1
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 we filed with the
Securities and Exchange Commission, or the SEC, using a shelf registration
process. Under this shelf registration process, we may, from time to time, offer
and sell any combination of the securities described in this prospectus in one
or more offerings. The aggregate initial offering price of all securities sold
under this prospectus will not exceed $300,000,000.
This
prospectus provides certain general information about the securities that we may
offer hereunder. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of the
offering and the offered securities. We may also authorize one or more free
writing prospectuses to be provided to you that may contain material information
relating to these offerings. In each prospectus supplement, we will include the
following information:
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the number and type of securities that we
propose to sell;
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the public offering price;
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the names of any underwriters, agents or
dealers through or to which the securities will be sold;
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any compensation of those underwriters, agents
or dealers;
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any additional risk factors applicable to the
securities or our business and operations; and
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any other material information about the
offering and sale of the securities.
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In
addition, the prospectus supplement or free writing prospectus may also add,
update or change the information contained in this prospectus or in documents
incorporated by reference in this prospectus. The prospectus supplement or free
writing prospectus will supersede this prospectus to the extent it contains
information that is different from, or that conflicts with, the information
contained in this prospectus or incorporated by reference in this prospectus.
You should read and consider all information contained in this prospectus, any
accompanying prospectus supplement and any free writing prospectus that we have
authorized for use in connection with a specific offering, in making your
investment decision.
You should also read and consider the information
contained in the documents identified under the heading Incorporation of
Certain Documents by Reference and Where You Can Find More Information in
this prospectus
.
Unless
the context otherwise requires, the terms the Company, we, us, and our
in this prospectus each refer to Kandi Technologies Group, Inc., our
subsidiaries and our consolidated entities. China and the PRC refer to the
Peoples Republic of China.
FORWARD-LOOKING STATEMENTS
Some
of the statements contained or incorporated by reference in this prospectus may
be forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the Securities Act), and Section 21E of
the Exchange Act and may involve material risks, assumptions and uncertainties.
Forward-looking statements typically are identified by the use of terms such as
may, will, should, believe, might, expect, anticipate, intend,
plan, estimate and similar words, although some forward-looking statements
are expressed differently.
Although we believe that the expectations
reflected in such forward-looking statements are reasonable, these statements
are not guarantees of future performance and involve certain risks and
uncertainties that are difficult to predict and which may cause actual outcomes
and results to differ materially from what is expressed or forecasted in such
forward-looking statements. These forward-looking statements speak only as of
the date on which they are made and except as required by law, we undertake no
obligation to publicly release the results of any revision or update of these
forward-looking statements, whether as a result of new information, future
events or otherwise. If we do update or correct one or more forward-looking
statements, you should not conclude that we will make additional updates or
corrections with respect thereto or with respect to other forward-looking
statements. A detailed discussion of risks and uncertainties that could cause
actual results and events to differ materially from our forward-looking
statements is included in our periodic reports filed with the SEC and in the
Risk Factors section of this prospectus.
2
THE COMPANY
We
were incorporated under the laws of the State of Delaware on March 31, 2004. On
August 13, 2007, we changed our name from Stone Mountain Resources, Inc. to
Kandi Technologies, Corp. On December 21, 2012, we changed our name from Kandi
Technologies, Corp. to Kandi Technologies Group, Inc. to better communicate our
current organizational structure to the investment community, our customers and
our business partners.
Headquartered
in Zhejiang Province, we are one of Chinas leading producers and manufacturers
of electric vehicles (EVs), all-terrain vehicles (ATVs), go-karts and a
variety of other specialty vehicles, including specialized utility vehicles, for
the PRC and global markets. In connection with our strategic objective of
becoming a world leader in electric vehicles manufacturing and related services,
we have increased our focus on fuel-efficient, pure EVs, with a particular focus
on expanding our domestic market share in China.
Our Business
Our
primary business is designing, developing, manufacturing and commercializing
EVs, ATVs, go-karts, specialized automobiles and automobile-related products for
the PRC and global markets.
Our
products include EVs, off-road vehicles (which include ATVs, utility vehicles
(UTVs) and go-karts), motorcycles, refitted cars and automobile parts.
According to our market research on consumer demand trends, we have adjusted our
production line strategically and continue to develop and manufacture new
products in an effort to meet market demands and better serve our
customers
.
The
following table shows our production by product type and revenues for the years
ended December 31, 2013 and 2012:
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Year
ended December 31,
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2013
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2012
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Units
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Revenue
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Units
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Revenue
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All-terrain Vehicles (ATVs)
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18,295
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$
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10,407,858
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14,467
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$
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6,402,753
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Electric Vehicles (EVs)
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4,694
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46,619,203
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3,915
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19,034,936
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Go-Kart
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36,499
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33,187,877
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34,517
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30,794,415
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Utility vehicles (UTVs)
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440
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1,155,221
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93
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319,014
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Three-wheeled motorcycles (TT)
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243
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383,760
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1,060
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1,272,898
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Refitted car
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39
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1,058,095
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115
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3,172,417
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Auto generator
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51,588
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1,724,031
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93,881
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3,517,237
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Total
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111,798
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$
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94,536,045
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148,048
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$
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64,513,670
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Our
current business is primarily conducted through our wholly-owned subsidiary,
Zhejiang Kandi Vehicles Co., Ltd. (Kandi Vehicles), and the partial and
wholly-owned subsidiaries of Kandi Vehicles.
Corporate Structure
Our current corporate structure is set forth in the diagram below:
3
Pursuant
to relevant agreements executed in January 2011, Kandi Vehicles is entitled to
100% of the economic benefits, voting rights and residual interests (100%
profits and loss absorption rate) of Jinhua Kandi New Energy Vehicles Co., Ltd.
(Kandi New Energy), a company in which Kandi Vehicles has a 50% interest.
Jinhua
Three Parties New Energy Vehicles Service Co., Ltd. (Jinhua Service) was
formed as a joint venture, by and among our wholly-owned subsidiary, Kandi
Vehicles, the State Grid Power Corporation and Tianneng Power International. The
Company, indirectly through Kandi Vehicles, has a 30% ownership interest in
Jinhua Service.
In
April 2012, pursuant to a share exchange agreement, we acquired 100% of Yongkang
Scrou Electric Co. (Yongkang Scrou), a manufacturer of automobile and EV
parts.
In
March 2013, pursuant to a joint venture agreement (the JV Agreement) entered
into between Kandi Vehicles and Shanghai Maple Guorun Automobile Co., Ltd.
(Shanghai Maple), a 99% owned subsidiary of Geely Automobile Holdings Ltd.
(Geely), the parties established Zhejiang Kandi Electric Vehicles Co., Ltd.
(the JV Company) to develop, manufacture and sell EVs and related auto parts.
Each of Kandi Vehicles and Shanghai Maple has a 50% ownership interest in the JV
Company. In March 2014, the JV Company changed its name to Kandi Electric
Vehicles Group Co., Ltd.
In
March 2013, Kandi Vehicles formed Kandi Electric Vehicles (Changxing) Co., Ltd.
(Kandi Changxing) in the Changxing (National) Economic and Technological
Development Zone. Kandi Changxing is engaged in the production of EVs. In fourth
quarter of 2013, Kandi Vehicle entered into an ownership transfer agreement with
JV Company to transfer 100% ownership to Kandi Changxing to the JV Company.
Through our wholly-owned subsidiary, Kandi Vehicles, we have a 50% ownership
interest in Kandi Changxing.
In
April 2013, Kandi Electric Vehicles (Wanning) Co., Ltd. (Kandi Wanning) was
formed by Kandi Vehicles and Kandi New Energy in Wanning City of Hainan
Province. Kandi Vehicles has a 90% ownership in Kandi Wanning, and Kandi New
Energy has the remaining 10% interest. However, Kandi Vehicles is, effectively,
entitled to 100% of the economic benefits, voting rights and residual interests
(100% profits and loss absorption rate) of Kandi Wanning because it is entitled
to 100% of the economic benefits, voting rights and residual interests (100%
profits and loss absorption rate) of Kandi New Energy.
4
In
July 2013, Zhejiang ZuoZhongYou Electric Vehicle Service Co., Ltd. (the Service
Company) was formed. The JV Company has a 19% ownership interest in the Service
Company. Through our wholly-owned subsidiary, Kandi Vehicles, we have a 9.5%
ownership interest in the Service Company.
In
November 2013, Zhejiang Kandi Electric Vehicles Jinhua Co., Ltd. (Kandi
Jinhua) was formed by the JV Company. The JV Company has 100% ownership
interest in Kandi Jinhua, and through our wholly-owned subsidiary, Kandi
Vehicles, we have a 50% ownership interest in Kandi Jinhua.
In
November 2013, Zhejiang JiHeKang Electric Vehicle Sales Co., Ltd. (JiHeKang)
was formed by the JV Company. The JV Company has 100% ownership interest in
JiHeKang, and through our wholly-owned subsidiary, Kandi Vehicles, we have a 50%
ownership interest in JiHeKang.
In
December 2013, the JV Company entered into an ownership transfer agreement with
Shanghai Maple in connection with acquiring 100% ownership of Kandi Electric
Vehicles (Shanghai) Co., Ltd. (Kandi Shanghai). Kandi Shanghai is a
wholly-owned subsidiary of the JV Company, and through our 50% ownership
interest in the JV Company, we have a 50% ownership interest in Kandi Shanghai.
In
January 2014, Zhejiang Kandi Electric Vehicles Jiangsu Co., Ltd. (Kandi
Jiangsu) was formed by the JV Company. The JV Company has 100% ownership
interest in Kandi Jiangsu, and the Company, indirectly through its 50% ownership
interest in the JV Company, has a 50% economic interest in Kandi Jiangsu.
Our Corporate Information
We
are headquartered in Zhejiang Province in China. Our principal executive offices
are located at Jinhua City Industrial Zone, Jinhua, Zhejiang Province, Peoples
Republic of China, Post Code 321016, and our telephone number at this location
is +86-579-82239856. Our website address is
http://en.kandivehicle.com.
Information contained on our website is not incorporated by reference into
this prospectus and you should not consider information on our website to be
part of this prospectus.
RISK FACTORS
An
investment in our securities involves a high degree of risk. Before making any
investment decision, you should carefully consider the risk factors set forth
below, the information under the caption Risk Factors in any applicable
prospectus supplement, any related free writing prospectus that we may authorize
to be provided to you and the information under the caption Risk Factors in
our annual report on Form 10-K and quarterly report on Form 10-Q that are
incorporated by reference in this prospectus, as updated by our subsequent
filings under the Securities Exchange Act of 1934, as amended, or the Exchange
Act.
These
risks could materially affect our business, results of operation or financial
condition and affect the value of our securities. Additional risks and
uncertainties that are not yet identified may also materially harm our business,
operating results and financial condition and could result in a complete loss of
your investment. You could lose all or part of your investment. For more
information, see Where You Can Find More Information.
5
Risks Related to Our Securities and the Offering
Future sales or other dilution of our equity could depress the
market price of our common stock.
Sales
of our common stock, preferred stock, warrants, rights or convertible debt
securities, or any combination of the foregoing, in the public market, or the
perception that such sales could occur, could negatively impact the price of our
common stock. We have a number of institutional and individual shareholders that
own significant blocks of our common stock. If one or more of these shareholders
were to sell large portions of their holdings in a relatively short time, for
liquidity or other reasons, the prevailing market price of our common stock
could be negatively affected.
In
addition, the issuance of additional shares of our common stock, securities
convertible into or exercisable for our common stock, other equity-linked
securities, including preferred stock, warrants or rights or any combination of
these securities pursuant to this prospectus will dilute the ownership interest
of our common shareholders and could depress the market price of our common
stock and impair our ability to raise capital through the sale of additional
equity securities.
We
may need to seek additional capital. If this additional financing is obtained
through the issuance of equity securities, debt securities convertible into
equity or options, warrants or rights to acquire equity securities, our existing
shareholders could experience significant dilution upon the issuance, conversion
or exercise of such securities.
Our
management will have broad discretion over the use of the proceeds we receive
from the sale our securities pursuant to this prospectus and might not apply the
proceeds in ways that increase the value of your investment.
Our
management will have broad discretion to use the net proceeds from any offerings
under this prospectus, and you will be relying on the judgment of our management
regarding the application of these proceeds. Except as described in any
prospectus supplement or in any related free writing prospectus that we may
authorize to be provided to you, the net proceeds received by us from our sale
of the securities described in this prospectus will be added to our general
funds and will be used for general corporate purposes. Our management might not
apply the net proceeds from offerings of our securities in ways that increase
the value of your investment and might not be able to yield a significant
return, if any, on any investment of such net proceeds. You may not have the
opportunity to influence our decisions on how to use such proceeds.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings
to fixed charges for each of the periods indicated.
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Three Months
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Ended March
31,
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Years Ended
December 31,
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2014
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2013
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2012
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2011
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2010
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2009
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RATIO OF EARNINGS TO FIXED CHARGES
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-1.1
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1.0
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2.9
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2.5
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2.1
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2.3
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USE OF PROCEEDS
Except
as may be stated in the applicable prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you, we intend to use
the net proceeds we receive from the sale of the securities offered by this
prospectus for general corporate purposes, which may include, among other
things, repayment of debt, repurchases of common stock, capital expenditures,
the financing of possible acquisitions or business expansions, increasing our
working capital and the financing of ongoing operating expenses and overhead.
DESCRIPTION OF CAPITAL STOCK
The
following is a summary of our capital stock and certain provisions of our
certificate of incorporation and bylaws. This summary does not purport to be
complete and is qualified in its entirety by the provisions of our certificate
of incorporation, as amended, our bylaws and applicable provisions of the
Delaware General Corporation Law or the DGCL).
See
Where You Can Find More Information elsewhere in this prospectus for
information on where you can obtain copies of our certificate of incorporation
and our bylaws, which have been filed with and are publicly available from the
SEC. Our authorized capital stock consists of 100,000,000 shares of common
stock, par value $0.001, and 10,000,000 shares of preferred stock, par value
$0.001.
6
DESCRIPTION OF COMMON STOCK
As of
June 16, 2014, there were 41,814,984 shares of
our common stock issued and outstanding, held by approximately 17 stockholders
of record.
Our common stock is currently traded on the NASDAQ Global Select Market under
the symbol KNDI.
The
holders of our common stock are entitled to one vote per share on all matters
submitted to a vote of our stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the shares of common stock
entitled to vote in any election of directors may elect all of the directors
standing for election. The holders of outstanding shares of common stock are
entitled to receive ratably any dividends declared by our board of directors out
of assets legally available. Upon our liquidation, dissolution or winding up,
holders of our common stock are entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference of any
then outstanding shares of preferred stock. Holders of common stock have no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to our common stock. Corporate
Stock Transfer, 3200 Cherry Creek Drive South, Suite 4301, Denver, Colorado
80209, is the registrar and transfer agent of our common stock.
All
issued and outstanding shares of common stock are fully paid and nonassessable.
Shares of our common stock that may be offered, from time to time, under this
prospectus will be fully paid and nonassessable.
Delaware Anti-Takeover Provisions
We
are subject to Section 203 of the Delaware General Corporation Law, which
prohibits a publicly-held Delaware corporation from engaging in a business
combination, except under certain circumstances, with an interested
stockholder for a period of three years following the date such person became
an interested stockholder unless:
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before such person became an interested stockholder, the
board of directors of the corporation approved either the business
combination or the transaction that resulted in the interested stockholder
becoming an interested stockholder;
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upon the consummation of the transaction that resulted in
the interested stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding
shares held by directors who also are officers of the corporation and
shares held by employee stock plans; or
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at or following the time such person became an interested
stockholder, the business combination is approved by the board of
directors of the corporation authorized at a meeting of stockholders by
the affirmative vote of the holders of 66
2
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outstanding voting stock of the corporation which is not owned by the
interested stockholder.
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The
term interested stockholder generally is defined as a person who, together
with affiliates and associates, owns, or, within the three years prior to the
determination of interested stockholder status, owned, 15% or more of a
corporations outstanding voting stock. The term business combination includes
mergers, asset or stock sales and other similar transactions resulting in a
financial benefit to an interested stockholder. Section 203 makes it more
difficult for an interested stockholder to effect various business
combinations with a corporation for a three-year period. The existence of this
provision would be expected to have an anti-takeover effect with respect to
transactions not approved in advance by our board of directors, including
discouraging attempts that might result in a premium over the market price for
the shares of common stock held by stockholders. Presently, we have not opted
out of this provision.
7
DESCRIPTION OF PREFERRED STOCK
As of June 16, 2014, no shares of preferred stock had been issued or were
outstanding.
Our
board of directors has the authority to issue up to 10,000,000 shares of
preferred stock in one or more series and to determine the rights and
preferences of the shares of any such series without stockholder approval. Our
board of directors may issue preferred stock in one or more series and has the
authority to fix the designation and powers, rights and preferences and the
qualifications, limitations or restrictions with respect to each class or series
of such class without further vote or action by the stockholders, unless action
is required by applicable law or the rules of any stock exchange on which our
securities may be listed. The ability of our board of directors to issue
preferred stock without stockholder approval could have the effect of delaying,
deferring or preventing a change of control of us or the removal of existing
management. Further, our board of director may authorize the issuance of
preferred stock with voting or conversion rights that could adversely affect the
voting power or other rights of the holders of our common stock. Additionally,
the issuance of preferred stock may have the effect of decreasing the market
price of our common stock.
We
will file as an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from reports that we file with the
SEC, the form of any certificate of designation that describes the terms of the
series of preferred stock we are offering before the issuance of that series of
preferred stock. This description will include, but not be limited to, the
following:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price;
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the dividend rate, period and payment date and method of
calculation for dividends;
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whether dividends will be cumulative or non-cumulative
and, if cumulative, the date from which dividends will accumulate;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if
applicable, and any restrictions on our ability to exercise those
redemption and repurchase rights;
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whether the preferred stock will be convertible into our
common stock, and, if applicable, the conversion price, or how it will be
calculated, and the conversion period;
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whether the preferred stock will be exchangeable into
debt securities, and, if applicable, the exchange price, or how it will be
calculated, and the exchange period;
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voting rights, if any, of the preferred stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if
any;
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a discussion of any material United States federal income
tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred
stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
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any limitations on the issuance of any class or series of
preferred stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights if we liquidate, dissolve
or wind up our affairs; and
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any other specific terms, preferences, rights or
limitations of, or restrictions on, the preferred stock.
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DESCRIPTION OF DEBT SECURITIES
We
may issue debt securities, in one or more series, as either senior or
subordinated debt or as senior or subordinated convertible debt. When we offer
to sell debt securities, we will describe the specific terms of any debt
securities offered from time to time in a supplement to this prospectus, which
may supplement or change the terms outlined below. Senior debt securities will
be issued under one or more senior indentures, dated as of a date prior to such
issuance, between us and a trustee to be named in a prospectus supplement, as
amended or supplemented from time to time. Any subordinated debt securities will
be issued under one or more subordinated indentures, dated as of a date prior to
such issuance, between us and a trustee to be named in a prospectus supplement,
as amended or supplemented from time to time. The indentures will be subject to
and governed by the Trust Indenture Act of 1939, as amended.
Before
we issue any debt securities, the form of indentures will be filed with the SEC
and incorporated by reference as an exhibit to the registration statement of
which this prospectus is a part or as an exhibit to a current report on Form
8-K. For the complete terms of the debt securities, you should refer to the
applicable prospectus supplement and the form of indentures for those particular
debt securities. We encourage you to read the applicable prospectus supplement
and the form of indenture for those particular debt securities before you
purchase any of our debt securities.
We
will describe in the applicable prospectus supplement the terms of the series of
debt securities being offered, including:
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the title;
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whether or not such debt securities are guaranteed;
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the principal amount being offered, and if a series, the
total amount authorized and the total amount outstanding;
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any limit on the amount that may be issued;
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whether or not we will issue the series of debt
securities in global form, the terms and who the depositary will be;
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the maturity date;
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the annual interest rate, which may be fixed or variable,
or the method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record dates
for interest payment dates or the method for determining such dates;
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whether or not the debt securities will be secured or
unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of
subordinated debt;
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the place where payments will be payable;
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restrictions on transfer, sale or other assignment, if
any;
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our right, if any, to defer payment of interest and the
maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we
may, at our option, redeem the series of debt securities pursuant to any
optional or provisional redemption provisions and the terms of those
redemption provisions;
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the date, if any, on which, and the price at which we are
obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the holders option to purchase,
the series of debt securities and the currency or currency unit in which
the debt securities are payable;
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any restrictions our ability and/or the ability of our
subsidiaries to:
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incur additional indebtedness;
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issue additional securities;
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create liens;
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pay dividends and make distributions in respect of our
capital stock and the capital stock of our subsidiaries;
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redeem capital stock;
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place restrictions on our subsidiaries ability to pay
dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with stockholders and
affiliates;
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issue or sell stock of our subsidiaries; or
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effect a consolidation or merger;
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whether the indenture will require us to maintain any
interest coverage, fixed charge, cash flow-based, asset-based or other
financial ratios;
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a discussion of any material United States federal income
tax considerations applicable to the debt securities;
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information describing any book-entry features;
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provisions for a sinking fund purchase or other analogous
fund, if any;
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the denominations in which we will issue the series of
debt securities;
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the currency of payment of debt securities if other than
U.S. dollars and the manner of determining the equivalent amount in U.S.
dollars; and
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any other specific terms, preferences, rights or
limitations of, or restrictions on, the debt securities, including any
additional events of default or covenants provided with respect to the
debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms on which a series of
debt securities may be convertible into or exchangeable for our common stock or
our other securities. We will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of our common stock or
our other securities that the holders of the series of debt securities receive
would be subject to adjustment.
DESCRIPTION OF WARRANTS
We
may issue warrants for the purchase of common stock, preferred stock and/or debt
securities in one or more series. We may issue warrants independently or
together with common stock, preferred stock and/or debt securities, and the
warrants may be attached to or separate from these securities. While the terms
summarized below will apply generally to any warrants that we may offer, we will
describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement. The terms of any warrants offered under a
prospectus supplement may differ from the terms described below.
We
will file as exhibits to the registration statement of which this prospectus is
a part, or will incorporate by reference from reports that we file with the SEC,
the form of warrant agreement, including a form of warrant certificate, that
describes the terms of the particular series of warrants we are offering before
the issuance of the related series of warrants. The following summaries of
material provisions of the warrants and the warrant agreements are subject to,
and qualified in their entirety by reference to, all the provisions of the
warrant agreement and warrant certificate applicable to the particular series of
warrants that we may offer under this prospectus. We urge you to read the
applicable prospectus supplements related to the particular series of warrants
that we may offer under this prospectus, as well as any related free writing
prospectuses, and the complete warrant agreements and warrant certificates that
contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms of the series of
warrants being offered, including:
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the offering price and aggregate number of warrants
offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the
securities with which the warrants are issued and the number of warrants
issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants
and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the
principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such
exercise;
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in the case of warrants to purchase common stock or
preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the
price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the
exercise price or number of securities issuable upon exercise of the
warrants;
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the dates on which the right to exercise the warrants
will commence and expire;
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the manner in which the warrant agreements and warrants
may be modified;
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a discussion of any material or special United States
federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the
warrants; and
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any other specific terms, preferences, rights or
limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the
right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants
in the applicable indenture; or
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in the case of warrants to purchase common stock or
preferred stock, the right to receive dividends, if any, or payments upon
our liquidation, dissolution or winding up or to exercise voting rights,
if any.
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Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in
the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Holders of the warrants may exercise the
warrants at any time up to the specified time on the expiration date that we set
forth in the applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We will set forth on
the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
If
fewer than all of the warrants represented by the warrant certificate are
exercised, then we will issue a new warrant certificate for the remaining amount
of warrants. If we so indicate in the applicable prospectus supplement, holders
of the warrants may surrender securities as all or part of the exercise price
for warrants.
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DESCRIPTION OF RIGHTS
We
may issue rights to purchase our common stock or preferred stock, in one or more
series. Rights may be issued independently or together with any other offered
security and may or may not be transferable by the person purchasing or
receiving the subscription rights. In connection with any rights offering to our
stockholders, we may enter into a standby underwriting arrangement with one or
more underwriters pursuant to which such underwriters will purchase any offered
securities remaining unsubscribed after such rights offering. In connection with
a rights offering to our stockholders, we will distribute certificates
evidencing the rights and a prospectus supplement to our stockholders on the
record date that we set for receiving rights in such rights offering. The
applicable prospectus supplement or free writing prospectus will describe the
following terms of rights in respect of which this prospectus is being
delivered:
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the title of such rights;
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the securities for which such
rights are exercisable;
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the exercise price for such
rights;
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the date of determining the
security holders entitled to the rights distribution;
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the number of such rights issued to each security holder;
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the extent to which such rights are transferable;
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if applicable, a discussion of the material United States
federal income tax considerations applicable to the issuance or exercise
of such rights;
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the date on which the right to exercise such rights shall
commence, and the date on which such rights shall expire (subject to any
extension);
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the conditions to completion of the rights offering;
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any provisions for changes to or adjustments in the
exercise price or number of securities issuable upon exercise of the
rights;
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the extent to which such rights include an
over-subscription privilege with respect to unsubscribed securities;
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if applicable, the material terms of any standby
underwriting or other purchase arrangement that we may enter into in
connection with the rights offering; and
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any other terms of such rights, including terms,
procedures and limitations relating to the exchange and exercise of such
rights.
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Each
right will entitle the holder thereof the right to purchase for cash such amount
of shares of common stock or preferred stock, or any combination thereof, at
such exercise price as shall in each case be set forth in, or be determinable as
set forth in, the prospectus supplement relating to the rights offered thereby.
Rights may be exercised at any time up to the close of business on the
expiration date for such rights set forth in the prospectus supplement. After
the close of business on the expiration date, all unexercised rights will become
void. Rights may be exercised as set forth in the prospectus supplement relating
to the rights offered thereby. Upon receipt of payment and the proper completion
and due execution of the rights certificate at the office of the rights agent,
if any, or any other office indicated in the prospectus supplement, we will
forward, as soon as practicable, the shares of common stock and/or preferred
stock purchasable upon such exercise. We may determine to offer any unsubscribed
offered securities directly to persons other than stockholders, to or through
agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting
arrangements, as set forth in the applicable prospectus supplement.
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DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue, in one more
series, units consisting of common stock, preferred stock, debt securities
and/or warrants or rights for the purchase of common stock, preferred stock
and/or debt securities in any combination. The applicable prospectus supplement
will describe: .
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the securities comprising the units, including whether
and under what circumstances the securities comprising the units may be
separately traded;
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the terms and conditions applicable to the units,
including a description of the terms of any applicable unit agreement
governing the units; and
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a description of the provisions for the payment,
settlement, transfer or exchange of the units.
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PLAN OF DISTRIBUTION
The
securities covered by this prospectus may be offered and sold from time to time
pursuant to one or more of the following methods:
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through agents;
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to or through underwriters;
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to or through broker-dealers (acting as agent
or principal);
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in at the market offerings within the meaning of Rule
415(a)(4) of the Securities Act, to or through a market maker or into an
existing trading market, on an exchange, or otherwise;
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directly to purchasers, through a specific
bidding or auction process or otherwise; or
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through a combination of any such methods of
sale.
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Agents,
underwriters or broker-dealers may be paid compensation for offering and selling
the securities. That compensation may be in the form of discounts, concessions
or commissions to be received from us, from the purchasers of the securities or
from both us and the purchasers. Any underwriters, dealers, agents or other
investors participating in the distribution of the securities may be deemed to
be underwriters, as that term is defined in the Securities Act, and
compensation and profits received by them on sale of the securities may be
deemed to be underwriting commissions, as that term is defined in the rules
promulgated under the Securities Act.
Each time securities are offered by this prospectus, the prospectus supplement,
if required, will set forth:
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the name of any underwriter, dealer or agent involved in
the offer and sale of the securities;
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the terms of the offering;
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any discounts concessions or commissions and other items
constituting compensation received by the underwriters, broker-dealers or
agents;
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any over-allotment option under which any underwriters
may purchase additional securities from us; and
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any initial public offering price.
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The
securities may be sold at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices relating to the
prevailing market prices or at negotiated prices. The distribution of securities
may be effected from time to time in one or more transactions, by means of one
or more of the following transactions, which may include cross or block
trades:
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transactions on the NASDAQ Global Select Market or any
other organized market where the securities may be traded;
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in the over-the-counter market;
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in negotiated transactions;
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under delayed delivery contracts or other
contractual commitments; or
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a combination of such methods of sale.
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If
underwriters are used in a sale, securities will be acquired by the underwriters
for their own account and may be resold from time to time in one or more
transactions. Our securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. If an underwriter or
underwriters are used in the sale of securities, an underwriting agreement will
be executed with the underwriter or underwriters at the time an agreement for
the sale is reached. This prospectus and the prospectus supplement will be used
by the underwriters to resell the shares of our securities.
In
compliance with the guidelines of the Financial Industry Regulatory Authority,
or FINRA, the aggregate maximum discount, commission or agency fees or other
items constituting underwriting compensation to be received by any FINRA member
or independent broker-dealer will not exceed 8% of the offering proceeds from
any offering pursuant to this prospectus and any applicable prospectus
supplement.
If
5% or more of the net proceeds of any offering of our securities made under this
prospectus will be received by a FINRA member participating in the offering or
affiliates or associated persons of such FINRA member, the offering will be
conducted in accordance with FINRA Rule 5121.
To
comply with the securities laws of certain states, if applicable, the securities
offered by this prospectus will be offered and sold in those states only through
registered or licensed brokers or dealers.
Agents,
underwriters and dealers may be entitled under agreements entered into with us
to indemnification by us against specified liabilities, including liabilities
incurred under the Securities Act, or to contribution by us to payments they may
be required to make in respect of such liabilities. The prospectus supplement
will describe the terms and conditions of such indemnification or contribution.
Some of the agents, underwriters or dealers, or their respective affiliates, may
be customers of, engage in transactions with or perform services for us in the
ordinary course of business. We will describe in the prospectus supplement
naming the underwriter the nature of any such relationship.
Certain
persons participating in the offering may engage in over-allotment, stabilizing
transactions, short-covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. We make no representation or prediction as
to the direction or magnitude of any effect that such transactions may have on
the price of the securities. For a description of these activities, see the
information under the heading Underwriting in the applicable prospectus
supplement.
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LEGAL MATTERS
The validity of the securities offered in this prospectus will be passed upon
for us by Pryor Cashman LLP.
EXPERTS
Our
consolidated financial statements as of December 31, 2013 and 2012, and for each
of the years in the two-year period ended December 31, 2013, have been
incorporated by reference in the registration statement in reliance on the
report of Albert Wong & Co., an independent registered public accounting
firm, and upon the authority of said firm as experts in accounting and
auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with them
into this prospectus. This means that we can disclose important information
about us and our financial condition to you by referring you to another document
filed separately with the SEC instead of having to repeat the information in
this prospectus. The information incorporated by reference is considered to be
part of this prospectus and later information that we file with the SEC will
automatically update and supersede this information. This prospectus
incorporates by reference any future filings made with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act, between the date of the initial
registration statement and prior to effectiveness of the registration statement
and the documents listed below that we have previously filed with the SEC:
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|
our Annual Report on Form 10-K for the year ended
December 31, 2013 filed with the SEC on March 17, 2014, as amended by
Amendment No. 1 thereto filed with the SEC on May 16, 2014;
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our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2014 filed with the SEC on May 12, 2014;
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our Current Reports on Form 8-K, or amendments thereto,
filed with the SEC on March 18, 2014, March 19, 2014 and March 20, 2014;
and
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the description of our common stock contained in the
registration statement on Form 8-A, dated March 17, 2008, File No.
001-33997, and any other amendment or report filed for the purpose of
updating such description.
|
We
also incorporate by reference all documents that we file with the SEC on or
after the effective time of this prospectus pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act and prior to the sale of all the securities
registered hereunder or the termination of the registration statement. Nothing
in this prospectus shall be deemed to incorporate information furnished but not
filed with the SEC.
Any
statement contained in this prospectus or in a document incorporated or deemed
to be incorporated by reference in this prospectus shall be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in the applicable prospectus supplement or in any
other subsequently filed document that also is or is deemed to be incorporated
by reference modifies or supersedes the statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
You
may request a copy of the filings incorporated herein by reference, including
exhibits to such documents that are specifically incorporated by reference, at
no cost, by writing or calling us at the following address or telephone number:
Kandi Technologies Group, Inc
.
Jinhua City
Industrial Zone
Jinhua, Zhejiang Province
Peoples Republic
of China
Post Code 321016
Attn: Zhu Xiaoying, Chief Financial
Officer
+86-579-82239856
16
Statements
contained in this prospectus as to the contents of any contract or other
documents are not necessarily complete, and in each instance you are referred to
the copy of the contract or other document filed as an exhibit to the
registration statement or incorporated herein, each such statement being
qualified in all respects by such reference and the exhibits and schedules
thereto.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement on Form S-3 that we filed with
the SEC registering the securities that may be offered and sold hereunder. The
registration statement, including exhibits thereto, contains additional relevant
information about us and these securities, as permitted by the rules and
regulations of the SEC, we have not included in this prospectus. A copy of the
registration statement can be obtained at the address set forth below or at the
SECs website as noted below. You should read the registration statement,
including any applicable prospectus supplement, for further information about us
and these securities.
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SECs website at http:/www.sec.gov. You may also read and copy
any document we file at the SECs public reference room, 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference room. Because our common
stock is listed on the NASDAQ Global Select Market, you may also inspect
reports, proxy statements and other information at the offices of the NASDAQ
Global Select Market.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses payable by
us in connection with the offering of our securities being registered hereby.
SEC registration fee
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$
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38,640
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|
Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Printing and miscellaneous expenses
|
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*
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Total expenses
|
$
|
*
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|
*
Estimated expenses are presently not known and cannot
be estimated.
Item 15. Indemnification of Directors and Officers.
Section
145 of the DGCL provides that a corporation may indemnify directors and officers
as well as other employees and agents of the corporation against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement, in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation, as a derivative action), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of actions by or in the right of the
corporation, except that indemnification only extends to expenses (including
attorneys fees) actually and reasonably incurred in connection with the defense
or settlement of such action, and no indemnification shall be made where the
person seeking indemnification has been found liable to the corporation, unless
and only to the extent that a court determines is fair and reasonable in view of
all circumstances.
Our
Certificate of Incorporation provides that no director shall be personally
liable to our company or its stockholders for monetary damages for any breach of
fiduciary duty by such director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law,
(i) for breach of the directors duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law or (iv) for any transaction from
which the director derived an improper personal benefit.
We
may enter into indemnification agreements with each of our directors and
officers that are, in some cases, broader than the specific indemnification
provisions permitted by Delaware law, and that may provide additional procedural
protection. At present, we have not entered into any indemnification agreements
with our directors or officers, but may choose to do so in the future. We have
purchased directors and officers liability insurance for our directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and controlling persons pursuant to our
charter documents or the DGCL, or otherwise, we have been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than our payment of expenses
incurred or paid by a director, officer or controlling person of our company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it us against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-1
At
present, there is no pending litigation or proceeding involving any of our
directors, officers or employees in which indemnification is sought, nor are we
aware of any threatened litigation that may result in claims for
indemnification.
Item 16. Exhibits and Financial Schedule
See the Exhibit Index attached to this registration statement and incorporated
herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective
date of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the
effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement;
provided, however
, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act, that are incorporated by reference in
this registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of this registration statement.
(2)
That, for the purposes of determining any liability under the Securities Act,
each post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That, for the purpose of
determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
(ii) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
II-2
(5)
That, for the purpose of determining liability of a Registrant under the
Securities Act to any purchaser in the initial distribution of the
securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned Registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii)
the portion of any other free writing prospectus relating to the offering
containing material information about the undersigned Registrant or its
securities provided by or on behalf of the undersigned Registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(6) The undersigned registrant hereby
undertakes that:
(i)
For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(ii)
For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plans annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof.
II-3
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the indemnification provisions described herein, or otherwise, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Jinhua, the
Peoples Republic of China on the 16
th
day of June, 2014.
KANDI TECHNOLOGIES GROUP, INC.
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By:
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/s/ Hu Xiaoming
|
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Hu Xiaoming
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Chairman of the Board of
Directors, President and Chief
|
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Executive Officer (Principal
Executive Officer)
|
Each
person whose signature appears below constitutes and appoints Hu Xiaoming and
Zhu Xiaoying as his true and lawful attorneys-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement on Form S-3
and any subsequent registration statement the Registrant may hereafter file with
the Securities and Exchange Commission pursuant to Rule 462 under the Securities
Act to register additional securities in connection with this registration
statement, and to file this registration statement, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in order to effectuate the same as fully, to
all intents and purposes, as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated.
Signature
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Title
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Date
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|
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/s/ Hu Xiaoming
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Chairman of the Board of Directors,
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Hu Xiaoming
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President and Chief Executive
|
June 16, 2014
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Officer (Principal Executive Officer)
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/s/ Zhu Xiaoying
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Chief Financial Officer (Principal
|
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Zhu Xiaoying
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Financial Officer and Principal
|
June 16, 2014
|
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Accounting Officer) and Director
|
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|
|
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/s/ Qian
Jingsong
|
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Qian Jingsong
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Director
|
June 16, 2014
|
|
|
|
|
|
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/s/ Ni
Guangzheng
|
|
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Ni Guangzheng
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Director
|
June 16, 2014
|
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/s/ Jerry Lewin
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Jerry Lewin
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Director
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June 16, 2014
|
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/s/ Henry Yu
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Director
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June 16, 2014
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Henry Yu
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|
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/s/Chen Liming
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Director
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June 16, 2014
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Chen Liming
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EXHIBIT INDEX
Exhibit
|
|
Number
|
Description
|
|
|
1.1
|
Form of Underwriting Agreement*
|
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|
3.1
|
Certificate of Incorporation (filed as Exhibit 3.1 to the
Company s Registration Statement on Form SB-2, dated April 1, 2005; File
No. 333-123735).
|
|
|
3.2
|
Certificate For Renewal and Revival of Charter dated May
27, 2007.**
|
|
|
3.3
|
Certificate of Amendment of Certificate of Incorporation
(filed as Exhibit 4.2 to the Companys Form S-3, dated November 19, 2009;
File No. 333-163222)
|
|
|
3.4
|
Certificate of Amendment of Certificate of Incorporation
(filed as Exhibit 3.1 to the Companys Form 8-K, dated December 21, 2012)
|
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3.5
|
Bylaws (filed as Exhibit 3.2 to the Companys Form SB-2,
dated April 1, 2005; File No. 333-123735)
|
|
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4.1
|
Common Stock Specimen**
|
|
|
4.2
|
Form of Indenture, including form of Note*
|
|
|
4.3
|
Form of Warrant Agreement, including form of Warrant*
|
|
|
4.4
|
Form of Unit Agreement*
|
|
|
4.5
|
Form of Pledge Agreement*
|
|
|
4.6
|
Form of Rights Certificate*
|
|
|
5.1
|
Opinion of Pryor Cashman LLP.**
|
|
|
12.1
|
Computation of Ratio of Earnings
to Fixed Charges
|
|
|
23.1
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Consent of Independent Registered Public Accounting
Firm**
|
|
|
23.2
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Consent of Pryor Cashman LLP (included in legal opinion
filed as Exhibit 5.1)**
|
|
|
24.1
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Powers of Attorney (included on signature page)
|
_______________________
*
|
To be filed, if applicable, by amendment or as an exhibit
to a report filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 134, as amended, and incorporated herein by
reference.
|
|
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**
|
Filed herewith
|
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