As filed with the Securities and Exchange Commission on
August 8, 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
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(I.R.S. Employer Identification Number)
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Organization)
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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 Registrant's 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 (Check one):
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
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Title of Securities
To Be
Registered
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Amount
To Be
Registered
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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
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Common Stock, $0.001 par value per share, for sale by
selling stockholders
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1,429,393
(1)
Shares
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$17.435
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$24,921,466.96
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$3,209.88
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TOTAL
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$3,209.88
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__________________
(1)
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Represents 1,429,393 shares of common stock of the
Registrant, par value $0.001 per share, issuable upon exercise of certain
outstanding warrants at an exercise price of $15.00 per share, to be
offered and sold by the selling stockholders identified in this
Registration Statement. In accordance with Rule 416 under the Securities
Act of 1933, as amended (the Securities Act), this Registration
Statement also covers such indeterminate number of additional shares as
may become issuable in connection with the shares registered for sale
hereby to prevent dilution in connection with stock splits, stock
dividends, recapitalizations or similar events.
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(2)
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Estimated solely for the purpose of calculation of the
registration fee pursuant to Rule 457(c) under the Securities Act based on
a per share price of $17.435 the average of the high and low reported
sales prices of the Registrant's Common Stock on the NASDAQ Global Select
Market on August 4, 2014.
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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 of 1933 or until the registration statement
shall become effective on such date as the 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.
PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION, DATED AUGUST 8,
2014
Kandi Technologies Group, Inc.
1,429,393 SHARES OF COMMON STOCK OFFERED BY SELLING STOCKHOLDERS
_______________________________
This
prospectus relates to the resale, from time to time, by the selling stockholders
identified in this prospectus under the caption Selling Stockholders, of up to
1,429,393 shares of our common stock, par value $0.001 per share, issuable upon
the exercise of outstanding common stock purchase warrants. We are not selling
any shares of our common stock under this prospectus and will not receive any
proceeds from the sale of shares by the selling stockholders. However, we will
receive the proceeds from any cash exercise of the warrants which, if all
exercised for cash, would result in gross proceeds to us of approximately
$21,440,895. The selling stockholders will bear all commissions and discounts,
if any, attributable to the sale of the shares. We will bear all costs, expenses
and fees in connection with the registration of the shares.
The
selling stockholder may sell the shares of our common stock offered by this
prospectus from time to time on terms to be determined at the time of sale
through ordinary brokerage transactions or through any other means described in
this prospectus under Plan of Distribution. The prices at which the selling
stockholder may sell the shares will be determined by the prevailing market
price for the shares or in negotiated transactions.
Our
common stock is quoted on the NASDAQ Global Select Market under the symbol
KNDI. On August 7, 2014, the last reported sale price of our common stock on
the NASDAQ Global Select Market was $19.20 per share.
The
1,429,393 shares of common stock covered by this prospectus are issuable upon
the exercise of outstanding warrants that we issued in a private placement
transaction completed on January 15, 2014. Additional information about the
private placement is provided in the section entitled Description of Private
Placement of this Prospectus.
_______________________________
Investing
in our common stock involves certain risks. See Risk Factors beginning on page
5 of this prospectus for risks of an investment in the common stock offered by
the prospectus, which incorporates by reference certain additional risks set
forth under the caption Risk Factors in our Annual Report on Form 10-K, as
amended, filed with the Securities and Exchange Commission and incorporated by
reference into this prospectus. You should carefully read and consider these
risk factors before you invest in our common stock.
_______________________________
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
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Page
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About this Prospectus
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Prospectus Summary
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1
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Forward-Looking
Statements
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4
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Risk Factors
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5
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Use of Proceeds
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5
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Description of Private
Placement
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6
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Selling
Stockholders
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6
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Description of Investor
Warrants
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8
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Description of Capital
Stock
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9
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Plan of Distribution
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10
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Legal Matters
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12
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Experts
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12
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Incorporation of Certain
Documents by Reference
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12
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Where You Can Find More
Information
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13
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ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we have filed with the
Securities and Exchange Commission (the SEC) utilizing a shelf registration
process. Using the shelf registration process, the selling stockholders may,
from time to time, offer and sell shares of our common stock pursuant to this
prospectus. You should not assume that the information contained in 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 is delivered or securities are sold on a
later date. It is important for you to read and consider all information
contained in this prospectus, including the documents incorporated by reference
therein, in making your investment decision. You should also read and consider
the information in the documents to which we have referred you under the caption
Where You Can Find More Information in the prospectus.
We
have not authorized any dealer, salesman or other person to give any information
or to make any representation other than those contained or incorporated by
reference in this prospectus. You must not rely upon any information or
representation not contained or incorporated by reference in this prospectus.
This prospectus does not constitute an offer to sell or the solicitation of an
offer to buy any securities other than the registered securities to which it
relates, nor does this prospectus constitute an offer to sell or the
solicitation of an offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction.
i
Unless
the context otherwise requires, the terms KNDI, 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.
ii
PROSPECTUS SUMMARY
This
summary only highlights the more detailed information appearing elsewhere in
this prospectus or incorporated herein by reference, and may not contain all the
information that may be important to you. You should carefully read this entire
prospectus, as well as the information incorporated by reference, before
deciding whether to invest in our securities.
Our 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 vehicle (EV) products, 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 EV
products, 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.
1
Corporate Structure
Our current corporate structure is set forth in the diagram below:
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.
Kandi New Energy was established in accordance with relevant Chinese government
regulations on automobile manufacturing enterprises, which prohibit foreign
ownership of greater than 50%. Kandi New Energy currently holds vehicle
production rights (license) on manufacturing Kandi brand electric utility
vehicles (Special-purpose Vehicles) and production rights (license) on
manufacturing battery packs used in Kandi brand EVs. Kandi New Energy supplies
battery packs for Kandi brand electrical vehicles (EVs).
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. As of June 30, 2014, Jinhua Service ceased its operations and
will be dissolved. Jinhua Services was established in order to provide public
charging stations for lead-acid batteries for EVs in Jinhua city. Currently,
most of EV customers in Jinhua have the ability to charge their EVs by
themselves. Since self-charging is more cost-effective for customers and most of
its customers have switched to self-charging, Jinhua Service ceased its
operations and will be dissolved.
In
April 2012, pursuant to a share exchange agreement, the Company acquired 100% of
Yongkang Scrou Electric Co, Ltd. (Yongkang Scrou), a manufacturer of
automobile and electric vehicle parts. Yongkang Scrou currently manufactures and
sells EV drive motors, EV controllers, air conditioners and other electrical
products to the JV Company.
2
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 Guorun), 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 Guorun 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. At present, the JV Company is a holding company with
products that are manufactured by its subsidiaries.
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 Vehicles entered into an ownership transfer agreement
with JV Company pursuant to which Kandi Vehicles transferred 100% of its
ownership in Kandi Changxing to the JV Company. The Company, indirectly through
its 50% ownership interest in the JV Company, has a 50% economic interest in
Kandi Changxing.
In
April 2013, Kandi Electric Vehicles (Wanning) Co., Ltd. (Kandi Wanning) was
formed in Wanning City of Hainan Province by Kandi Vehicles and Kandi New
Energy. Kandi Vehicles has a 90% ownership in Kandi Wanning, and Kandi New
Energy has the remaining 10% interest. However, by contract, Kandi Vehicles is,
effectively, entitled to 100% of the economic benefits, voting rights and
residual interests (100% profits and losses ) of Kandi Wanning. Hainan Province
is planned as an international tourism island by the Chinese government and
there is a high possibility that all non-EVs will be banned from use within the
province. Therefore, the Company believes EV business has a great potential for
growth in Hainan province. To capture this opportunity, the Company signed an
agreement with Wanning city government and invest a total of RMB 1 billion to
develop a factory in Wanning with an annual production of 100,000 EV products.
Currently, Kandi Wanning is planning to launch its trial production by 2015.
According to the JV Agreement, once it becomes fully operational, the entire
equity interests of Kandi Wanning will be transferred to the JV Company.
In
July 2013, Zhejiang ZuoZhongYou Electric Vehicle Service Co., Ltd. (the Service
Company) was formed. The Service Company is engaged in various pure EV leasing
business. The JV Company has a 19% ownership interest in the Service Company.
The Company, indirectly through its 50% ownership interest in the JV Company,
has a 9.5% economic 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 the Company, indirectly through its 50% ownership interest in
the JV Company, has a 50% economic interest in Kandi Jinhua. According to the
terms of the JV Agreement, except the JV Company and its subsidiaries, Kandi
Vehicle and its subsidiaries are not allowed to manufacture pure EVs. However,
Kandi New Energy holds the production rights (license) on manufacturing of
Special-purpose Vehicles. Therefore, it is necessary to establish Kandi Jinhua,
which is in charge of the Specialpurpose Vehicle business and entitles to use
Kandi New Energys Special-purpose Vehicle production rights (license).
In
November 2013, Zhejiang JiHeKang Electric Vehicle Sales Co., Ltd. (JiHeKang)
was formed by the JV Company and is engaged in car sales business. The JV
Company has 100% ownership interest in JiHeKang, and the Company, indirectly
through its 50% ownership interest in the JV Company, has a 50% economic
interest in JiHeKang.
In
December 2013, the JV Company entered into an ownership transfer agreement with
Shanghai Guorun pursuant to which the JV Company acquired 100% ownership of
Kandi Electric Vehicles (Shanghai) Co., Ltd. (Kandi Shanghai). As a result,
Kandi Shanghai is a wholly-owned subsidiary of the JV Company, and the Company,
indirectly through its 50% ownership interest in the JV Company, has a 50%
economic 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://www.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.
The Offering
Securities Offered by Us
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None.
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Shares of common stock offered by the selling
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Up to an aggregate of 1,429,393 shares of our common
stock issuable upon the exercise of outstanding warrants (the Investor
Warrants) that were issued in a private placement transaction on January
15, 2014. The Investor Warrants have an exercise price of $15.00* per
share and expire on January 30, 2015.
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Common Stock outstanding at August 5, 2014
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41,910,287 shares.
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3
Use of Proceeds
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We will not receive any proceeds from the sale or other
disposition of the shares of our common stock covered by this prospectus
by the selling stockholders. However, we will receive proceeds upon any
cash exercise of the Investor Warrants, the underlying shares of which are
offered by this prospectus. See the discussion set forth under the caption
Use of Proceeds.
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The NASDAQ Global Select Market Symbol
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KNDI
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Risk Factors
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We are subject to a number of risks that you should be
aware of before you decide to purchase our common stock. These risks are
discussed more fully in the section captioned Risk Factors, beginning on
page 5 of this prospectus.
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The number of shares of Common Stock to be outstanding after
this offering (43,339,680) is based on the actual number of shares outstanding
as of August 5, 2014 and assumes the full exercise of the Investor Warrants held
by the Warrant Holders.
* The exercise price shall be reduced by a credit of $0.01,
which reflects the price per warrant share paid in connection with the issuance
of the Investor Warrants. Consequently, the effective exercise price per warrant
share shall be $14.99.
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 Securities Exchange Act of 1934, as amended (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 of this prospectus. Neither
we nor the holders of the Investor Warrants undertake any obligation to update
or revise publicly any 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.
4
RISK FACTORS
An
investment in our common stock involves a high degree of risk. Before making any
investment decision, you should carefully consider the risk factors set forth
below and the information under the caption Risk Factors in our annual report
on Form 10-K and our quarterly report on Form 10-Q that are incorporated by
reference in this prospectus, as updated by our subsequent filings under the
Exchange Act.
These
risks could materially affect our business, results of operation or financial
condition and affect the value of our common stock. 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. For more information, see Where You Can Find More
Information.
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 upon the cash
exercise of Investor Warrants 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 the cash
exercise of Investor Warrants, and you will be relying on the judgment of our
management regarding the application of those proceeds. It is expected that such
net proceeds received by us will be added to our general funds and will be used
for general corporate purposes. Our management might not apply the net proceeds
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.
USE OF PROCEEDS
All
proceeds from the resale of the shares of our common stock offered by this
prospectus will belong to the selling stockholders identified in this prospectus
under Selling Stockholders. We will not receive any proceeds from the sale or
other disposition by the selling stockholders of the shares of our common stock
covered by this prospectus.
However,
we will receive proceeds upon any cash exercise of the Investor Warrants, the
underlying shares of which are offered by this prospectus. If the Investor
Warrants are all exercised for cash, this would result in gross proceeds to us
of approximately $21,440,895. We intend to use any proceeds from any such
exercise for working capital and general corporate purposes, There is no
assurance that the Investor Warrants will ever be exercised.
5
The
holders of the Investor Warrants are entitled to exercise the Investor Warrants
on a cashless basis if the shares of common stock underlying the Investor
Warrants are not registered pursuant to an effective registration statement. In
the event that the holders exercise the Investor Warrants on a cashless basis,
then we will not receive any proceeds from the exercise of the Investor
Warrants.
DESCRIPTION OF PRIVATE PLACEMENT
On
January 15, 2014, we entered into warrant subscription agreements (the
Subscription Agreements) with certain institutional investors as listed in the
Selling Stockholders section (the Investors). Pursuant to the Subscription
Agreements, we issued and sold to the Investors, in a private placement
transaction consummated in reliance upon exemptions from registration pursuant
to Section 4(2) under the Securities Act of 1933, as amended (the Securities
Act), the Investor Warrants to purchase an aggregate of 1,429,393 shares of our
common stock at an exercise price equal to $15.00 per share. (The exercise price
shall be reduced by a credit of $0.01, which reflects the price per warrant
share paid in connection with the issuance of the Investor Warrants.
Consequently, the effective exercise price per warrant share shall be $14.99. )
The total purchase price we received from the Investors for the purchase of the
Investor Warrants was approximately $14,294. Neither the Investor Warrants nor
the underlying shares of our common stock issuable upon the exercise of the
Investor Warrants had been registered under the Securities Act at the time of
the sale of the Investor Warrants and neither may be offered or sold in the
United States absent registration or an applicable exemption from registration.
We
are under no obligation to register the issuance of the Investor Warrants under
the Securities Act; however, holders of the Investor Warrants are entitled to a
cashless exercise of the Investor Warrants, if, following six months from the
issuance date, at the time of the exercise of the Investor Warrants, a
registration statement filed with the SEC under the Securities Act is not
effective (or the prospectus contained herein is not available for use) for
their issuance and resale. The 1,429,393 shares of our common stock issuable
upon exercise of the Investor Warrants are covered by this prospectus.
SELLING STOCKHOLDERS
This
prospectus covers an aggregate of 1,429,393 shares of our common stock that may
be sold or otherwise disposed of by the selling stockholders and their
transferees. Such shares are issuable to the selling stockholders upon the
exercise of the Investor Warrants in the transactions described under the
caption Description of Private Placement above.
The
following table sets forth certain information with respect to each selling
stockholder, including (i) the shares of our common stock beneficially owned by
the selling stockholder prior to this offering, (ii) the number of shares being
offered by the selling stockholder pursuant to this prospectus and (iii) the
selling stockholders beneficial ownership after completion of this offering,
assuming that all of the shares covered hereby (but none of the other shares, if
any, held by the selling stockholders) are sold. The registration of the shares
of common stock issuable to the selling stockholders upon the exercise of the
Investor Warrants does not necessarily mean that the selling stockholders will
sell all or any particular portion of such shares.
The
table is based on information available to us as of August 7, 2014, with
beneficial ownership and percentage ownership determined in accordance with the
rules and regulations of the SEC and include voting or investment power with
respect to shares of stock. This information does not necessarily indicate
beneficial ownership for any other purpose. In computing the number of shares
beneficially owned by a person and the percentage ownership of that person,
shares of common stock subject to warrants and other convertible securities held
by that person that are convertible or exercisable as of August 7, 2014, or
convertible or exercisable within 60 days of August 7, 2014, are deemed
outstanding. Such shares, however, are not deemed outstanding for the purposes
of computing the percentage ownership of any other person. The percentage of
beneficial ownership after this offering is based on 41,910,287 shares
outstanding on August 5, 2014.
The
registration of these shares of common stock does not mean that the selling
stockholders will sell or otherwise dispose of all or any of those securities.
The selling stockholders may sell or otherwise dispose of all, a portion or none
of such shares from time to time. We do not know the number of shares, if any,
that will be offered for sale or other disposition by any of the selling
stockholders under this prospectus. Furthermore, the selling stockholders may
have sold, transferred or disposed of the shares of common stock covered hereby
in transactions exempt from the registration requirements of the Securities Act
since the date on which the Company filed this prospectus.
6
None
of the selling stockholders have, nor within the past three years have any of
them had, any position, office or other material relationship with us or any of
our predecessors or affiliates.
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Beneficial Ownership
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Before This Offering
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Beneficial Ownership After This Offering
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Shares Underlying
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Number of Shares
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Warrants Offered
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Number of Shares
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Percentage of
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Selling
Stockholder (1)
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Owned
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Hereby
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Owned
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Outstanding Shares
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Capital Ventures
International
(2)
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748,984
(4)
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704,201
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44,783
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(6)
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*
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Hudson Bay Master Fund Ltd.
(3)
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771,309
(5)
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725,192
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46,117
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(7)
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*
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* Less than 1%
(1)
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This table and the information in the notes below are
based upon information supplied by the selling stockholders on or about
August 7, 2014.
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(2)
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Heights Capital Management, Inc., the authorized agent of
Capital Ventures International (CVI), has discretionary authority to
vote and dispose of the shares held by CVI and may be deemed to be the
beneficial owner of these shares. Martin Kobinger, in his capacity as
Investment Manager of Heights Capital Management, Inc., may also be deemed
to have investment discretion and voting power over the shares held by
CVI.
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Capital Ventures International is an affiliate of a
registered broker-dealer. Capital Ventures International has represented
to the Company that it acquired its warrants overlying the shares being
registered for resale hereunder in the ordinary course of business, and at
the time of the acquisition did not have any arrangements or
understandings, directly or indirectly, with any person to distribute the
securities.
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(3)
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Hudson Bay Capital Management LP, the investment manager
of Hudson Bay Master Fund Ltd., has voting and investment power over these
securities. Sander Gerber is the managing member of Hudson Bay Capital GP
LLC, which is the general partner of Hudson Bay Capital Management LP.
Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial
ownership over these securities.
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(4)
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Includes certain other warrant to purchase 44,783 shares
of common stock exercisable within 60 days from the date hereto.
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(5)
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Includes certain other warrant to purchase 46,117 shares
of common stock exercisable within 60 days from the date
hereto.
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(6)
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Assuming the warrant to purchase 44,783 shares of Common Stock remains
unexercised or unsold after the offering under this prospectus.
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(7)
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Assuming the warrant to purchase 46,117 shares of Common
Stock remains unexercised or unsold after the offering under this
prospectus.
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7
DESCRIPTION OF INVESTOR WARRANTS
The
following is a brief description of the terms of the Investor Warrants. This
summary does not purport to be complete in all respects. This description is
subject to and qualified in its entirety by reference to the Warrant
Subscription Agreement and the Investor Warrants, a form of which have been
filed with the SEC, and are also available upon request from us, and the
agreements underlying the Private Placement, as reported on that certain Current
Report on Form 8-K, filed January 16, 2014, which have also been filed with the
SEC and are also available upon request from us.
The Investor Warrants
The
Investor Warrants are exercisable at any time on or after the issuance date and
on or prior to 5:00 p.m., New York time, on January 30, 2015. The exercise price
and the number of shares issuable upon exercise of the Investor Warrants are
subject to certain adjustments upon the occurrence of certain events, including,
but not limited to, stock splits or dividends, business combinations, sale of
assets, similar recapitalization transactions, or other similar transactions and
in the event we issue or are deemed to issue shares of our common stock for less
than the applicable exercise price of the Investor Warrants.
The
exercisability of the Investor Warrants may be limited if, upon exercise, the
holder would beneficially own, either individually or together with its
affiliates, more than 4.99% (the Maximum Percentage) of the then issued and
outstanding shares of our common stock after giving effect to such exercise.
Furthermore, by written notice to the Company, any holder of the Investor
Warrants may increase or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% specified in such notice; provided that (x) any such
increase will not be effective until the 61st day after such notice is delivered
to the Company, and (y) any such increase or decrease will apply only to the
holder sending such notice and not to any other holder of the Investor Warrants.
The
holders of the Investor Warrants may exercise the Investor Warrants at any time
by delivering to us a written notice of exercise and payment of an amount equal
to the effective exercise price (as of the date of exercise) multiplied by the
number of shares of common stock as to which the Investor Warrant is being
exercised. The exercise price shall be reduced by a credit of $0.01, which
reflects the price per warrant share paid in connection with the issuance of the
Investor Warrants. Consequently, the effective exercise price per warrant share
shall be $14.99. Upon receipt of the notice of exercise and payment, we will
issue and deliver to the holder the number of shares of our common stock to
which the holder is entitled pursuant to the exercise. The Investor Warrants
expire on January 30, 2015 and must be exercised prior to such date; thereafter,
we will amend the registration statement of which this prospectus is a part to
withdraw from registration any shares not issued upon exercise of the Investor
Warrants.
Holders
of the Investor Warrants are entitled to a cashless exercise of the Investor
Warrants if, following six months from the issuance date, at the time of the
exercise of the Investor Warrants, a registration statement filed with the SEC
under the Securities Act is not effective (or the prospectus contained herein is
not available for use) for their issuance and resale.
Holders
of the Investor Warrants are entitled to participate in any dividend or other
distribution of assets, or rights to acquire assets, we make to holders of our
common stock, and the holders are entitled to participation rights in the event
we grant, issue or sell any options, convertible securities or rights to
purchase common stock, warrants, securities or other property pro rata to the
record holders of any class of common stock, to the same extent that each holder
would have been entitled to participate if such holder had held the number of
shares of common stock issuable upon a full exercise of the outstanding Investor
Warrants immediately before the date on which record is taken for such a
distribution.
If,
at any time the Investor Warrants are outstanding, we consummate a Fundamental
Transaction (as such term is defined in the Investor Warrants), which generally
includes any consolidation or merger into another corporation, the consummation
of a transaction whereby another entity acquires more than 50% of our
outstanding common stock, or the sale of all or substantially all of our assets,
the successor entity must assume in writing all of our obligations to the holders of the Investor Warrants. In
addition, in the event of a Fundamental Transaction, holders of the Investor
Warrants shall have the right to require us, or our successor, to repurchase the
Investor Warrants for an amount of cash equal to the Black-Scholes value of the
remaining unexercised portion of the Investor Warrants.
8
Other
than as provided herein, holders of the Investor Warrants, solely in their
capacities as such, are not entitled to vote or receive dividends or be deemed
the holder of any share capital of our company, and holders of Investor Warrants
do not have any rights of a stockholder of our company, including any right to
vote, give or withhold consent to any corporate action, receive notice of
meetings, receive dividends or subscription rights or otherwise prior to the due
exercise of the Investor Warrants.
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, and amended and restated bylaws and applicable
provisions of the Delaware General Corporation Law (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 amended and restated 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.
Common Stock
As
of August 15, 2014, there were 41,910,287 shares of our common stock outstanding
held by approximately 16 stockholders of record.
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 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 sold, from time to time, under this
prospectus will be fully paid and nonassessable.
Our common stock is currently traded on the NASDAQ Global Select Market under
the symbol KNDI.
Preferred Stock
As of August 5, 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.
9
Delaware Anti-Takeover Provisions
We
are subject to Section 203 of the DGCL, 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:
-
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;
-
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
-
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 2/3 % of the outstanding voting stock of the corporation 3 which is not
owned by the interested stockholder.
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
corporation's 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.
PLAN OF DISTRIBUTION
The
selling stockholders, which as used herein includes any of their respective
pledgees, donees, transferees, assignees and or other successors-in-interest,
may, from time to time, sell any or all of their shares of common stock covered
hereby on The NASDAQ Global Select Market or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions.
These sales may be at fixed or negotiated prices. A selling stockholder may use
any one or more of the following methods when selling securities:
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ordinary brokerage transactions and transactions in which
the broker dealer solicits purchasers;
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block trades in which the broker dealer will attempt to
sell the securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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purchases by a broker dealer as principal and resale by
the broker dealer for its account;
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an exchange distribution in accordance with the rules of
the applicable exchange;
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privately negotiated transactions;
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settlement of short sales entered into after the
effective date of the registration statement of which this prospectus is a
part;
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in transactions through broker dealers that agree with
the selling stockholders to sell a specified number of such securities at
a stipulated price per security;
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through the writing or settlement
of options or other hedging transactions, whether through an options
exchange or otherwise;
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a combination of any such methods
of sale; or
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any other method permitted
pursuant to applicable law.
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The
selling stockholders may also sell securities under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker
dealers engaged by the selling stockholders may arrange for other brokers
dealers to participate in sales. Broker dealers may receive commissions or
discounts from the selling stockholders (or, if any broker dealer acts as agent
for the purchaser of securities, from the purchaser) in amounts to be
negotiated, but, except as set forth in a supplement to this Prospectus, in the
case of an agency transaction not in excess of a customary brokerage commission
in compliance with FINRA Rule 2440; and in the case of a principal transaction a
markup or markdown in compliance with FINRA IM-2440.
In
connection with the sale of the securities or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the
securities in the course of hedging the positions they assume. The selling
stockholders may also sell securities short and deliver these securities to
close out their short positions, or loan or pledge the securities to
broker-dealers that in turn may sell these securities. The selling stockholders
may also enter into option or other transactions with broker-dealers or other
financial institutions or create one or more derivative securities which require
the delivery to such broker-dealer or other financial institution of securities
offered by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or
amended to reflect such transaction).
The
selling stockholders and any broker-dealers or agents that are involved in
selling the securities may be deemed to be underwriters within the meaning of
the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
securities purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Each selling stockholder has informed the
Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities. In no
event shall any broker-dealer receive fees, commissions and markups which, in
the aggregate, would exceed eight percent (8%).
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the securities. The Company has agreed to
indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
selling stockholders may be deemed to be underwriters within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act including Rule 172 thereunder. In addition, any securities
covered by this prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than under this prospectus. The
selling stockholders have advised us that there is no underwriter or
coordinating broker acting in connection with the proposed sale of the resale
securities by the selling stockholders.
The
resale securities will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states, the resale securities covered hereby may not be sold unless they
have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and is
complied with.
11
Under
applicable rules and regulations under the Exchange Act, any person engaged in
the distribution of the resale securities may not simultaneously engage in
market making activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the selling stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of securities of the common stock by the selling stockholders or any other
person. We will make copies of this prospectus available to the selling
stockholders and have informed them of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act).
LEGAL MATTERS
The
validity of the common stock 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 DOCUMENTS 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 on March 17, 2014, as amended by Amendment No. 1
thereto filed on May 16, 2014;
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our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2014 filed on May 12, 2014;
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our Current Reports on Form 8-K, or amendments thereto,
filed 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.
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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 shares of Common
Stock 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 which 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.
12
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
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 shares of our common stock that may be offered and sold
hereunder. The registration statement, including exhibits thereto, contains
additional relevant information about us and our shares of common stock that, 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 our shares of common stock.
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 SEC's website at http:/www.sec.gov. You may also read and copy
any document we file at the SEC's 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.
13
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 Common Stock being registered hereby. All amounts shown are
estimates except the SEC registration fee.
SEC registration fee
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$
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3,132.56
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Legal fees and expenses
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15,000.00
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Accounting fees and expenses
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-
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Printing and miscellaneous expenses
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500.00
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Total
expenses
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$
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18,632.56
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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 the Corporation 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 director's 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 & Officers Liability insurance for our directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to our charter documents or the DGCL, 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-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; 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, as amended (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) 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.
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-3
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 City of Jinhua, China
on the 8
th
day of August, 2014.
KANDI TECHNOLOGIES GROUP, INC.
By:
/s/ Hu
Xiaoming
Hu Xiaoming
Chairman of the
Board of Directors, President and
Chief 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
|
Title
|
Date
|
|
|
|
/s/ Hu Xiaoming
|
Chairman of the Board of Directors,
|
|
Hu Xiaoming
|
President and Chief Executive
|
August 8, 2014
|
|
Officer (Principal Executive Officer)
|
|
|
|
|
/s/ Zhu Xiaoying
|
Chief Financial Officer (Principal
|
|
Zhu Xiaoying
|
Financial Officer and Principal
|
August 8, 2014
|
|
Accounting Officer) and Director
|
|
|
|
|
/s/ Qian
Jingsong
|
|
|
Qian Jingsong
|
Director
|
August 8, 2014
|
|
|
|
|
|
|
/s/ Ni
Guangzheng
|
|
|
Ni Guangzheng
|
Director
|
August 8, 2014
|
|
|
|
|
|
|
/s/ Jerry Lewin
|
|
|
Jerry Lewin
|
Director
|
August 8, 2014
|
|
|
|
|
|
|
/s/ Henry Yu
|
Director
|
August 8, 2014
|
Henry Yu
|
|
|
|
|
|
/s/ Chen Liming
|
Director
|
August 8, 2014
|
Chen Liming
|
|
|
II-4
EXHIBIT INDEX
Exhibit
|
|
Number
|
Description
|
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. (filed as Exhibit 3.1 to the Companys Registration Statement on
Form S-3 dated June 20, 2014; File No. 333-196938).
|
|
|
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)
|
|
|
3.5
|
Bylaws (filed as Exhibit 3.2 to the Companys Form SB-2,
dated April 1, 2005; File No. 333- 123735).
|
|
|
4.1
|
Common Stock Specimen (filed as Exhibit 4.1 to the
Companys Registration Statement on Form S-3 dated June 20, 2014; File No.
333-196938).
|
|
|
5.1
|
Opinion of Pryor Cashman LLP.**
|
|
|
10.1
|
Form of Investor Warrant Subscription Agreement (filed as
Exhibit 10.1 to the Companys Current Report on Form 8-K, dated January
16, 2014).
|
|
|
10.2
|
Form of Investor Warrant (filed as Exhibit 4.1 to the
Companys Current Report on Form 8- K, dated January 16, 2014).
|
|
|
23.1
|
Consent of Independent Registered Public Accounting
Firm.**
|
|
|
23.2
|
Consent of Pryor Cashman LLP (included in legal opinion
filed as Exhibit 5.1).**
|
|
|
24.1
|
Power of Attorney
(included on the signature page of this Registration Statement) .**
|
_____________
** Filed herewith
E-1
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