As filed with the Securities and Exchange Commission on May
26, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KANDI TECHNOLOGIES GROUP, INC.
(Exact name of registrant as specified in its charter)
| Delaware |
90-0363723 |
| (State or other jurisdiction of |
(I.R.S. Employer Identification No.)
|
| incorporation |
|
| or organization) |
|
Jinhua City Industrial Zone
Jinhua, Zhejiang
Province
People’s Republic of China,
Post Code 321016
(Address of Principal Executive Offices)
Kandi Technologies Group, Inc.
2008 Omnibus
Long-Term Incentive Plan
(Full title of plan)
Hu Xiaoming
Jinhua City Industrial Zone
Jinhua, Zhejiang Province
People’s Republic of China,
Post Code 321016
(Name and address of agent for
service)
(86 - 579) 8223-9700
(Telephone number,
including area code, of agent for service)
With a copy to:
Elizabeth Fei Chen, Esq.
Pryor
Cashman LLP
7 Times Square
New York, New York 10036
(212)
421-4100
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 |
[ ] |
|
Accelerated filer |
[X] |
| Non-accelerated filer |
[ ] |
(Do not check if a smaller reporting company)
|
Smaller reporting company |
[ ]
|
CALCULATION OF REGISTRATION FEE
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Proposed |
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|
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maximum |
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Proposed |
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|
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Amount to |
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|
offering |
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|
maximum |
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Amount of |
|
| Title of securities |
|
|
be |
|
|
price |
|
|
aggregate |
|
|
registration |
|
| to be registered |
|
|
registered(1) |
|
|
per share(2) |
|
|
offering price(2) |
|
|
fee(2) |
|
| Common Stock, par value $.001
per share |
|
|
9,000,000 |
|
$ |
8.93 |
|
$ |
80,370,000
|
|
$ |
9,338.99
|
|
| (1) |
Represents 9,000,000 additional shares of common stock
issuable under the Registrant’s 2008 Omnibus Long-Term Incentive Plan,
effective since November 12, 2008, amended and approved by the
shareholders on May 20, 2015. Pursuant to Rule 416(a) of the Securities
Act of 1933, as amended (the “Securities Act”), the number of shares of
common stock registered under the 2008 Omnibus Long-Term Incentive Plan
will be adjusted in the event of stock splits, stock dividends or similar
transactions effected without receipt of consideration that increases the
number of outstanding shares of the Registrant’s common stock. |
| |
|
| (2) |
Estimated solely for the purpose of calculating the
registration fee and computed in accordance with Rules 457(c) and 457(h)
of the Securities Act upon the basis of the average of the high and low
prices per share of the Registrant’s common stock as reported on the
NASDAQ on May 20, 2015. |
TABLE OF CONTENTS
EXPLANATORY NOTE
Kandi Technologies Group, Inc. (the “Registrant”) has prepared
this registration statement (this “Registration Statement”) in accordance
with the requirements of Form S-8 under the Securities Act of 1933, as amended
(the “Securities Act”), to register an additional 9,000,000 shares of the common
stock issuable under the Registrant’s 2008 Omnibus Long-Term Incentive Plan,
effective since November 12, 2008, amended and approved by the shareholders on
May 20, 2015 (the “2008 Omnibus Plan”). The Registrant filed a registration
statement on Form S-8 on January 6, 2009 (Commission File Numbers 333-156582)
with 4,000,000 shares of common stock under the 2008 Omnibus Plan registered. In
accordance with General Instruction E to Form S-8, the contents of the such a
prior registration statement is hereby incorporated by reference.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Note: |
The documents containing the information specified in
this Part I will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act. Such documents need not be filed with
the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by
reference in the Registration Statement pursuant to Item 3 of Part II of
this form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
|
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in
accordance therewith files reports and other information with the Commission.
The following documents, and all documents the Registrant subsequently files
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and shall be deemed to be a part hereof
from the date of the filing of such documents:
The Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2014, filed with the Commission on March 16, 2015;
The Registrant’s Quarterly Report on Form 10-Q for the three
months ended March 31, 2015, filed with the Commission on May 11, 2015;
The Registrant’s Current Reports on Form 8-K, filed with the
Commission on March 24, 2015 and May 21, 2015;
The Definitive Proxy
Statement on Schedule 14A filed with the Commission on April 10, 2015; and
The description of the Registrant's common stock contained in
the Registrant's registration statement on Form 8-A filed with the Commission
on August 15, 2006, including any amendments or reports filed for the purpose of
updating that description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicated that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
1
You may contact the Registrant in writing or orally to request
copies of the above-referenced filings, without charge (excluding exhibits to
such documents unless exhibits are specifically incorporated by reference into
the information incorporated into this Registration Statement). Requests for
such information should be addressed to:
| Kandi Technologies Group, Inc. |
| Attention: Investor Relations |
| Jinhua City Industrial Zone |
| Jinhua, Zhejiang Province |
| People's Republic of China 321016 |
| 011 86-579-82239856 |
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses, including attorneys’ fees, judgments, fines and
amounts paid in settlement in connection with specified actions, suits and
proceedings whether civil, criminal, administrative, or investigative, other
than a derivative action by or in the right of the corporation, 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 derivative actions, except that
indemnification extends only to expenses, including attorneys’ fees, incurred in
connection with the defense or settlement of such action and the statute
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted
by a corporation’s certificate of incorporation, bylaws, disinterested director
vote, stockholder vote, agreement, or otherwise.
The Registrant’s certificate of incorporation provides that,
pursuant to Delaware law, its directors shall not be liable for monetary damages
for breach of the directors’ fiduciary duty of care to the Registrant and its
stockholders. This provision in the certificate of incorporation does not
eliminate the duty of care, and in appropriate circumstances equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director’s duty of loyalty to the Registrant or its
stockholders, for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of the law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director’s responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Registrant has been advised that in the opinion of the
Commission, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to the Registrant’s directors, officers and
controlling persons pursuant to the foregoing provisions, or otherwise, such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable. In the event a claim for indemnification against
such liabilities (other than the Registrant’s payment of expenses incurred or
paid by the Registrant’s director, officer or controlling person 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 of whether such indemnification by the Registrant is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The Registrant may enter into indemnification agreements with
each of its 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. The
Registrant has not entered into any indemnification agreements with its
directors or officers, but may choose to do so in the future. Such
indemnification agreements may require the Registrant, among other things, to:
2
| • |
indemnify officers and directors against
certain liabilities that may arise because of their status as officers or
directors; |
| |
|
| • |
advance expenses, as incurred, to officers and
directors in connection with a legal proceeding, subject to limited
exceptions; or |
| |
|
| • |
obtain directors’ and officers’ insurance.
|
At present, there is no pending litigation or proceeding
involving any of the Registrant’s directors, officers or employees in which
indemnification is sought, nor is the Registrant aware of any threatened
litigation that may result in claims for indemnification.
See also the undertakings set out in response to Item 9 hereof.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings
A. 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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) 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
(c) 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)(a) and
(1)(b) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in 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.
(2) That, for the purpose of determining any liability under
the Securities Act, each such 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 that time shall be deemed to be the initial bona
fide offering thereof.
3
(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.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
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.
C. 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 foregoing provisions, or otherwise, the
Registrant has been advised that, in the opinion of the Commission, 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.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jinhua, Zhejiang Province, People’s Republic of
China, on this 26th day of May, 2015.
| KANDI TECHNOLOGIES GROUP, INC. |
| |
|
| By: |
/s/ Hu
Xiaoming |
| |
Hu Xiaoming |
| |
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Hu Xiaoming and Wang Cheng
(Henry) and each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution 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, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission and any other regulatory authority, granting unto said
attorney-in-fact and agent, power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
| Signature |
|
Title |
|
Date
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| /s/ Hu Xiaoming
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President and Chief Executive Officer |
|
May 26, 2015 |
| Hu Xiaoming |
|
(Principal Executive Officer) and Chairman of
the Board od Directors |
|
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| |
|
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|
|
| /s/ Wang Cheng
(Henry) |
|
Chief Financial Officer (Principal |
|
May 26, 2015 |
| Wang Cheng (Henry) |
|
Financial and Accounting Officer) and Director
|
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| |
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| /s/ Chen Liming
|
|
Director |
|
May 26, 2015 |
| Chen Liming |
|
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| |
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| /s/ Ni Guangzheng
|
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Director |
|
May 26, 2015 |
| Ni Guangzheng |
|
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| |
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| /s/ Jerry Lewin
|
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Director |
|
May 26, 2015 |
| Jerry Lewin |
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| /s/ Henry Yu |
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Director |
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May 26, 2015 |
| Henry Yu |
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| /s/ Qian Jingsong
|
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Director |
|
May 26, 2015 |
| Qian Jingsong |
|
|
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|
5
Exhibit 5.1
May 26, 2015
Kandi Technologies Group, Inc.
Jinhua City Industrial Zone
Jinhua, Zhejiang Province
People's Republic of China 321016
| Re: |
Registration Statement on Form S-8 of up to 9,000,000 shares
of Common Stock of Kandi Technologies Group, Inc. |
Ladies and Gentlemen:
This opinion letter is furnished in connection with the filing
of the Registration Statement on Form S-8 (the “Registration Statement”) of
Kandi Technologies Group, Inc., a Delaware corporation (the “Company”) pursuant
to the Securities Act of 1933, as amended (the “Securities Act”), on or about
the date hereof relating to the registration of 9,000,000 shares (the “2008
Omnibus Plan Shares”) of common stock, $0.001 par value per share (the “Common
Stock”) of the Company issuable pursuant to the Company’s 2008 Omnibus Long-Term
Incentive Plan, effective November 12, 2008, amended and approved by the
shareholders on May 20, 2015 (the “2008 Omnibus Plan”). We have acted as counsel
to the Company in connection with the preparation and filing of the Registration
Statement.
In connection therewith and for the
purposes of giving the opinion hereinafter set forth, we have examined and relied upon originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary or appropriate for the purposes of this
opinion, including the Certificate of Incorporation, the By-Laws of the Company
(each as currently in effect), the Registration Statement and the 2008 Omnibus
Plan, as in our judgment are necessary or appropriate to form the basis for the
opinions hereinafter set forth. In making the foregoing examination, we have
assumed the genuineness of signatures on original documents and the conformity
to such original documents of all copies submitted to us as certified, conformed
or photographic copies, and as to certificates of public officials, we have
assumed the same to have been properly given and to be accurate. As to matters
of fact material to this opinion, we have relied upon statements and
representations of representatives of the Company and of public officials.
The opinions expressed herein are
specifically limited to the Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion
that the 2008 Omnibus Plan Shares have been duly authorized, and, assuming that
(i) the Company reserves for issuance under the 2008 Omnibus Plan an adequate
number of authorized and unissued shares of Common Stock (ii) the consideration
required to be paid in connection with the issuance and sale of shares of Common
Stock under the 2008 Omnibus Plan is actually received by the Company as
provided in the 2008 Omnibus Plan, when issued and delivered in accordance with
the Company’s Charter, and in accordance with the 2008 Omnibus Plan, the 2008
Omnibus Plan Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are included in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
This opinion letter is rendered as of the date first written
above, and we assume no obligation to update or supplement such opinion to
reflect any facts or circumstances that may hereafter come to our attention or
any changes in law that may hereafter occur. Our opinion is expressly limited to
the matters set forth above, and we render no opinion, whether by implication or
otherwise, as to any other matters.
Very truly yours,
/s/ Pryor Cashman LLP
Pryor Cashman LLP
2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors
Kandi Technologies Group, Inc.
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 (the “Registration Statement”) pertaining to
2008 Omnibus Long-Term Incentive Plan of Kandi Technologies Group, Inc. (the
“Company”), effective since November 12, 2008, amended and approved by the
shareholders on May 20, 2015, of our reports dated March 16, 2015 with respect
to the consolidated financial statements and the effectiveness of internal
control over financial reporting of the Company included in its Annual Report on
Form 10-K for the fiscal year ended December 31, 2014, filed with the Securities
and Exchange Commission on March 16, 2015.
AWC (CPA) Limited
Hong Kong, China
May 26, 2015
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