KNDI Kandi Technolgies Group Inc

As filed with the Securities and Exchange Commission on September 11, 2023

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 Incorporation or Organization)		(IRS Employer Identification Number)

 

Jinhua New Energy Vehicle Town
Jinhua, Zhejiang Province
People’s Republic of China

321016

(Address of Principal Executive Offices) (Zip Code)

 

Kandi Technologies Group, Inc.

2008 Omnibus Long-Term Incentive Plan (Amendment No. 2)

(Full title of the plan)

 

Dong Xueqin, Chief Executive Officer

Kandi Technologies Group, Inc.

Jinhua New Energy Vehicle Town

Jinhua, Zhejiang Province

People’s Republic of China

Post Code 321016

(86 - 579) 8223-9856

(Name, address including zip code, and telephone number, including area code, of agent for service)

 

Copies of all communications to:

 

Elizabeth F. Chen, Esq. Pryor Cashman LLP 7 Times Square New York, NY 10036 (212) 326-0199

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer	☐	Accelerated filer	☒
Non-accelerated filer	☐	Smaller reporting company	☒
		Emerging growth company	☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided Section 7(a)(2)(B) of the Securities Act. ☐

 

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by Kandi Technologies Group, Inc., a Delaware corporation (the “Company”), relating to (i) 5,000,000 unallocated shares of common stock, par value $0.001 per share (the “Common Stock”) which may be issuable pursuant to the 2008 Plan, and (ii) 5,000,000 shares of the Common Stock (the “Stock Option Shares” or “Shares”), issuable upon the exercise of stock options granted under the Kandi Technologies Group, Inc. 2008 Omnibus Long-Term Incentive Plan, as amended on May 20, 2015 and further amended on December 28, 2018 (the “2008 Plan”).

 

This Registration Statement includes a prospectus (the “Reoffer Prospectus”) prepared in accordance with General Instruction C of Form S-8 and in accordance with the requirements of Part I of Form S-3. This Reoffer Prospectus may be used for the reoffer and resale of Stock Option Shares on a continuous or delayed basis that may be deemed to be “restricted securities” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder, that are issuable to certain of our employees identified in the Reoffer Prospectus. The number of shares of Common Stock included in the Reoffer Prospectus represents shares of Common Stock issuable to the selling securityholders pursuant to equity awards, granted to the selling securityholders and does not necessarily represent a present intention to sell any or all such shares of Common Stock.

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.

 

The Company will provide each recipient of a grant under the 2008 Plan (the “Recipients”) with documents that contain information related to the 2008 Plan, and other information including, but not limited to, the disclosure required by Item 1 of Form S-8, which information is not required to be and is not being filed as a part of this Registration Statement on Form S-8 (the “Registration Statement”) or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. The foregoing information and the documents incorporated by reference in response to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. A Section 10(a) prospectus will be given to each Recipient who receives shares of Common Stock covered by this Registration Statement, in accordance with Rule 428(b)(1) under the Securities Act.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

We will provide to each Recipient a written statement advising of the availability of documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in this Section 10(a) prospectus) and of documents required to be delivered pursuant to Rule 428(b) under the Securities Act without charge and upon written or oral request by contacting:

 

Dong Xueqin

Chief Executive Officer

 Jinhua New Energy Vehicle Town
Jinhua, Zhejiang Province
People’s Republic of China

Tel: (86 - 579) 8223-9856

 

 

REOFFER PROSPECTUS

 

5,000,000 Shares

 

Kandi Technologies Group, Inc.

 

Common Stock

Issuable under certain awards

granted under the 2008 Plan

 

 

This Reoffer Prospectus relates to the public resale, from time to time, of an aggregate of 5,000,000 (the “Shares”) of common stock, $0.001 par value per share (the “Common Stock”) of Kandi Technologies Group, Inc. (“Kandi,” the “Company,” “us,” “our,” or “we”) by certain securityholders identified herein in the section entitled “Selling Securityholders.” Such shares may be acquired in connection with awards granted under the Kandi Technologies Group, Inc. 2008 Omnibus Long-Term Incentive Plan (the “2008 Plan”). You should read this prospectus carefully before you invest in our Common Stock.

 

Such resales shall take place on the Nasdaq Global Select Market, or such other stock market or exchange on which our Common Stock may be listed or quoted, in negotiated transactions or otherwise, at market prices prevailing at the time of the sale or at prices otherwise negotiated (see “Plan of Distribution” starting on page 6 of this prospectus). We will receive no part of the proceeds from sales made under this Reoffer Prospectus. The Selling Securityholders will bear all sales commissions and similar expenses. Any other expenses incurred by us in connection with the registration and offering and not borne by the Selling Securityholders will be borne by us.

 

This Reoffer Prospectus has been prepared for the purposes of registering the resale of our shares of Common Stock under the Securities Act to allow for future sales by Selling Securityholders on a continuous or delayed basis to the public without restriction. We have not entered into any underwriting arrangements in connection with the sale of the shares covered by this Reoffer Prospectus. The Selling Securityholders identified in this Reoffer Prospectus, or their pledgees, donees, transferees or other successors-in-interest, may offer the shares covered by this Reoffer Prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices.

 

Investing in our Common Stock involves risks. See “Risk Factors” beginning on page 4 of this Reoffer Prospectus.

 

Our Common Stock is quoted on the Nasdaq Global Select Market under the symbol “KNDI” and the last reported sale price of our Common Stock on September 7, 2023 was $3.23 per share.

 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

 

The date of this prospectus is September 11, 2023

 

 

Kandi Technologies Group, Inc.

 

TABLE OF CONTENTS

 

	Page
Cautionary Statement Regarding Forward-Looking Statements	1
Prospectus Summary	2
Risk Factors	4
Use of Proceeds	5
Selling Securityholders	5
Plan of Distribution	6
Legal Matters	7
Experts	7
Disclosure of Commission Position on Indemnification For Securities Act Liabilities	8
Where You can Find Additional Information	8
Incorporation of Certain Documents by Reference	II-1

 

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus contains forward-looking statements, which reflect our current views with respect to, among other things, future events and financial performance, our operations, strategies and expectations. The words “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “plan” and similar expressions are intended to identify forward-looking statements. Any forward-looking statements contained in this prospectus are based upon our historical performance and on our current plans, estimates and expectations. The inclusion of this or any forward-looking information should not be regarded as a representation by us or any other person that the future plans, estimates or expectations contemplated by us will be achieved. Such forward-looking statements are subject to various risks, uncertainties and assumptions, including but not limited to global and domestic market and business conditions, our successful execution of business and growth strategies and regulatory factors relevant to our business, as well as assumptions relating to our operations, financial results, financial condition, business prospects, growth strategy and liquidity. Accordingly, there are or will be important factors that could cause actual outcomes or results to differ materially from those indicated in these statements. We believe these factors include, but are not limited to, those described under “Risk Factors.” These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this prospectus. We operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. We undertake no obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise.

 

 

 

 

 

 

RISK FACTORS

 

Investing in shares of our Common Stock involves a high degree of risk. You should carefully consider the risks we have described under “Risk Factors” in our annual report on Form 10-K for the year ended December 31, 2022, as filed with the Commission on March 16, 2023, together with all the other information appearing in or incorporated by reference into this prospectus, before deciding to invest in our Common Stock. If any of the events or developments we have described occur, our business, financial condition, or results of operations could be materially or adversely affected. As a result, the market price of our Common Stock could decline, and investors could lose all or part of their investment. The risks and uncertainties we have described are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business operations. The risks we have described also include forward-looking statements, and our actual results may differ substantially from those discussed in these forward-looking statements. See “Cautionary Note Regarding Forward-Looking Statements.”

 

 

USE OF PROCEEDS

 

The shares which may be sold under this Reoffer Prospectus will be sold for the respective accounts of each of the Selling Securityholders listed herein (which includes our executive officers and directors). Accordingly, we will not realize any proceeds from the sale of the shares of our Common Stock. We will receive proceeds from the exercise of the options; however, no assurance can be given as to when or if any or all of the options will be exercised. If any options are exercised, the proceeds derived therefrom will be used for working capital and general corporate purposes. All expenses of the registration of the shares will be paid by us. See “Selling Securityholders” and “Plan of Distribution.”

 

SELLING SECURITYHOLDERS

 

The following table sets forth, as of September 7, 2023 (the “Determination Date”), the names of the Selling Securityholders, the aggregate number of shares of Common Stock beneficially owned by the Selling Securityholders, the aggregate number of shares of Common Stock that the Selling Securityholders may offer pursuant to this Reoffer Prospectus and the number of shares of Common Stock that would be beneficially owned by the Selling Securityholders after the sale of the Shares offered hereby assuming that the Selling Securityholders sell all of the Shares covered by this Reoffer Prospectus. The percentage of beneficial ownership after the offered shares of Common Stock are sold is calculated based on 79,039,558 shares of Common Stock outstanding as of the Determination Date. Each share of Common Stock has the right to one vote per share.

 

The Shares offered by the Selling Securityholders hereunder include restricted shares and shares of Common Stock issuable under restricted stock units held by certain current and former employees of the Company pursuant to the 2008 Plan, as described in this Reoffer Prospectus. When we refer to the “Selling Securityholders” in this Reoffer Prospectus, we mean the persons listed in the table below, and the pledgees, donees, transferees, assignees, successors, designees and others who later come to hold any of the Selling Securityholders’ interest in the Common Stock other than through a public sale.

 

The amount of the Shares to be offered or resold under this Reoffer Prospectus by each Selling Securityholder, and any other person with whom he or she is acting in concert for the purpose of selling our securities, may not exceed, during any three-month period, the amount specified in Rule 144(e) under the Securities Act.

 

Because the Selling Securityholders may offer all or part of the shares of Common Stock, which they own pursuant to the offering contemplated by this Reoffer Prospectus, and because its offering is not being underwritten on a firm commitment basis, no estimate can be given as to the amount of shares that will be held upon termination of this offering. The number of shares in the column “Number of Shares Being Offered” represents all of the shares of our Common Stock that each Selling Securityholder may offer under this prospectus. We do not know how long the Selling Securityholders will hold the shares before selling them or how many shares they will sell. The shares of our Common Stock offered by this prospectus may be offered from time to time by the Selling Securityholders listed below. We cannot assure you that any of the Selling Securityholders will offer for sale or sell any or all of the shares of Common Stock offered by them by this prospectus.

 

		Relationship to the			Number of Shares Beneficially Owned Prior to the Offering (1)						Number of Shares Being			Number of Shares Beneficially Owned After Offering (2)
Securityholders		Company			Number			Percent (%)			Offered			Number			Percent (%)
Guo Zhongyuan		Employee			500,000			*			500,000			0			0	%
Fan Wenbin		Employee			500,000			*			500,000			0			0	%
Sun Chenming		Employee			500,000			*			500,000			0			0	%
Ying Jinfeng		Employee			500,000			*			500,000			0			0	%
Zheng Mingyang		Employee			500,000			*			500,000			0			0	%
Zhu Xiaoying		Employee			400,000			*			400,000			0			0	%
Che Jianhua		Employee			400,000			*			400,000			0			0	%
Ling Jingtong		Employee			400,000			*			400,000			0			0	%
Chen Ming		Employee			300,000			*			300,000			0			0	%
Ying Qingfeng		Employee			250,000			*			250,000			0			0	%
Xu Guoyao		Employee			250,000			*			250,000			0			0	%
Kong Xingran		Employee			250,000			*			250,000			0			0	%
Gao Shuping		Employee			250,000			*			250,000			0			0	%

 

*	less than 1%

 

(1)

The number and percentage of shares beneficially owned is determined in accordance with Rule 13d-3 of the Securities Act, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rule, beneficial ownership includes any shares as to which the Selling Securityholder has sole or shared voting power or investment power and also any shares which the Selling Securityholder has the right to acquire within 60 days. Applicable percentage ownership is based on an aggregate of 79,039,558 shares of Common Stock outstanding as of September 7, 2023.

 

(2)

Assumes that all shares of Common Stock to be offered, as set forth above, are sold pursuant to this offering and that no other shares of Common Stock are acquired or disposed of by the Selling Securityholders prior to the termination of this offering. Because the Selling Securityholders may sell all, some or none of their shares of Common Stock or may acquire or dispose of other shares of Common Stock, no reliable estimate can be made of the aggregate number of shares of Common Stock that will be sold pursuant to this offering or the number or percentage of shares of Common Stock that each Selling Securityholder will own upon completion of this offering.

 

 

PLAN OF DISTRIBUTION

 

We are registering the Shares covered by this prospectus to permit the Selling Securityholders to conduct public secondary trading of these Shares from time to time after the date of this prospectus. We will not receive any of the proceeds of the sale of the Shares offered by this prospectus. The aggregate proceeds to the Selling Securityholders from the sale of the Shares will be the purchase price of the Shares less any discounts and commissions. We will not pay any brokers’ or underwriters’ discounts and commissions in connection with the registration and sale of the Shares covered by this prospectus. The Selling Securityholders reserve the right to accept and, together with their respective agents, to reject, any proposed purchases of Shares to be made directly or through agents.

 

The Shares offered by this prospectus may be sold from time to time to purchasers:

 

●

directly by the Selling Securityholders; or

 

●

through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, commissions or agent’s commissions from the Selling Securityholders or the purchasers of the Shares.

 

Any underwriters, broker-dealers or agents who participate in the sale or distribution of the Shares may be deemed to be “underwriters” within the meaning of the Securities Act. As a result, any discounts, commissions or concessions received by any such broker-dealer or agents who are deemed to be underwriters will be deemed to be underwriting discounts and commissions under the Securities Act. Underwriters are subject to the prospectus delivery requirements of the Securities Act and may be subject to certain statutory liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We will make copies of this prospectus available to the Selling Securityholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. To our knowledge, there are currently no plans, arrangements or understandings between the Selling Securityholders and any underwriter, broker-dealer or agent regarding the sale of the Shares by the Selling Securityholders.

 

The Shares may be sold in one or more transactions at:

 

●

fixed prices;

 

●

prevailing market prices at the time of sale;

 

●

prices related to such prevailing market prices;

 

●

prices related to such prevailing market prices;

 

●

varying prices determined at the time of sale; or

 

●

negotiated prices.

 

These sales may be effected in one or more transactions:

 

●

on any national securities exchange or quotation service on which the Shares may be listed or quoted at the time of sale, including the Nasdaq Global Select Market;

 

●

in the over-the-counter market;

 

●

in transactions otherwise than on such exchanges or services or in the over-the-counter market;

 

●

any other method permitted by applicable law; or

 

●

through any combination of the foregoing.

 

These transactions may include block transactions or crosses. Crosses are transactions in which the same broker acts as an agent on both sides of the trade.

 

 

At the time a particular offering of the Shares is made, a prospectus supplement, if required, will be distributed, which will set forth the name of the Selling Securityholders, the aggregate amount of Shares being offered and the terms of the offering, including, to the extent required, (1) the name or names of any underwriters, broker-dealers or agents, (2) any discounts, commissions and other terms constituting compensation from the Selling Securityholders and (3) any discounts, commissions or concessions allowed or reallowed to be paid to broker-dealers.

 

The Selling Securityholders will act independently of us in making decisions with respect to the timing, manner, and size of each resale or other transfer. There can be no assurance that the Selling Securityholders will sell any or all of the Shares under this prospectus. Further, we cannot assure you that the Selling Securityholders will not transfer, distribute, devise or gift the Shares by other means not described in this prospectus. In addition, any Shares covered by this prospectus that qualify for sale under Rule 144 of the Securities Act may be sold under Rule 144 rather than under this prospectus. The Shares may be sold in some states only through registered or licensed brokers or dealers. In addition, in some states the Shares may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification is available and complied with.

 

The Selling Securityholders and any other person participating in the sale of the Shares will be subject to the Exchange Act. The Exchange Act rules include, without limitation, Regulation M, which may limit the timing of purchases and sales of any of the Shares by the Selling Securityholders and any other person. In addition, Regulation M may restrict the ability of any person engaged in the distribution of the Shares to engage in market-making activities with respect to the particular Shares being distributed. This may affect the marketability of the Shares and the ability of any person or entity to engage in market-making activities with respect to the Shares.

 

The Selling Securityholders may indemnify any broker or underwriter that participates in transactions involving the sale of the Shares against certain liabilities, including liabilities arising under the Securities Act.

 

LEGAL MATTERS

 

The validity of the issuance of the securities offered by this prospectus will be passed upon for us by Pryor Cashman LLP.

 

EXPERTS

 

Our balance sheets as of December 31, 2022 and 2021, and the related statements of operations, stockholders’ equity (deficit), and cash flows for each of those two years have been audited by Kreit & Chiu CPA LLP, an independent registered public accounting firm, as set forth in its report incorporated by reference and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.

 

 

DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant, the registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We file annual, quarterly and other reports, proxy statements and other information with the Commission. Our SEC filings are available to the public over the Internet at the Commission’s website at http://www.sec.gov. Our Transition Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge by linking directly from our website at http://www.kandivehicle.com. These filings will be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Commission. Information contained on our website is not part of this prospectus.

 

The Registrant hereby undertakes to provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of any such person, a copy of any and all of the information that has been incorporated by reference in this prospectus but not delivered with the prospectus other than the exhibits to those documents, unless the exhibits are specifically incorporated by reference into the information that this prospectus incorporates. Requests for documents should be directed to Kandi Technology Group, Inc., Attention: Lin Wang, Jinhua New Energy Vehicle Town, Jinhua, Zhejiang Province, People’s Republic of China, Tel: (86 - 579) 8223-9856, Email: wl@kandigroup.com. 

 

 

 

Kandi Technology Group, Inc.

 

 

5,000,000 SHARES OF COMMON STOCK

 

 

REOFFER PROSPECTUS

 

 

September 11, 2023

 

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, which have been previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”), are hereby incorporated by reference in this Registration Statement:

 

	(a)	The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the Commission on March 16, 2023;
	(b)	The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023, filed with the Commission on May 10, 2023 and August 8, 2023, respectively;
	(c)	The Registrant’s Current Reports on Form 8-K filed on January 5, 2023, January 11, 2023, April 28, 2023 and June 23, 2023; and
	(d)	The description of the Registrant’s securities filed as Exhibit 4.5 to the Registrant’s Annual Report on Form 10-K, filed with the Commission on March 15, 2022.

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. 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 subsequently filed document which also 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.

 

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 the 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 actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The Registrant’s bylaws provide for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law.

 

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any 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) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant’s certificate of incorporation provides for such limitation of liability.

 

The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

 

The Registrant expects to enter into customary indemnification agreements with its executive officers and directors that provide them, in general, with customary indemnification in connection with their service to the Registrant or on the Registrant’s behalf. 

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit No.		Document Description
5.1		Opinion of Pryor Cashman LLP
10.1		Kandi Technologies Group, Inc. 2008 Omnibus Long-Term Incentive Plan (Incorporated herein by reference to Exhibit 10.1 to the Registration Statement on Form S-8 filed with the Commission on January 6, 2009)
10.2		Amendment to the 2008 Omnibus Long-Term Incentive Plan (Incorporated herein by reference to Exhibit A to the Proxy Statement on Schedule 14A filed with the Commission on April 10, 2015)
10.3		Amendment No. 2 to the 2008 Omnibus Long-Term Incentive Plan
23.1		Consent of Kreit & Chiu CPA LLP
23.2		Consent of Pryor Cashman LLP (included as part of Exhibit 5.1)
107		Filing Fee Table

 

 

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:

 

(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 the 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 the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

 

Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) 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 the 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 herein, and the offering of such securities at that 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.

 

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 Section 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 the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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 Securities and Exchange 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.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, 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, the People’s Republic of China, on September 11, 2023.

 

	Kandi Technologies Group, Inc.
	By:	/s/ Dong Xueqin
	Name:	Dong Xueqin
	Title:	Chief Executive Officer

 

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
/s/ Dong Xueqin		President and Chief Executive Officer		September 11, 2023
Dong Xueqin		(Principal Executive Officer)
/s/ Jehn Ming Lim		Chief Financial Officer		September 11, 2023
Jehn Ming Lim		(Principal Financial Officer and Principal Accounting Officer)
/s/ Hu Xiaoming		Chairman of the Board		September 11, 2023
Hu Xiaoming
/s/ Chen Liming		Director		September 11, 2023
Chen Liming
/s/ Lin Yi		Director		September 11, 2023
Lin Yi
/s/ Jerry Lewin		Director		September 11, 2023
Jerry Lewin
/s/ Henry Yu		Director		September 11, 2023
Henry Yu
/s/ Wang Lin		Director		September 11, 2023
Wang Lin

 

Exhibit 5.1

 

 

Kandi Technologies Group, Inc.

Jinhua New Energy Vehicle Town
Jinhua, Zhejiang Province
People’s Republic of China

Telephone: (86 - 579) 82239856

 

Re:	Registration Statement on Form S-8 with respect to up to 10,000,000 shares of common stock, par value $0.001 per share, of Kandi Technologies Group, Inc.

 

Ladies and Gentlemen:

 

We have acted as counsel to Kandi Technologies Group, Inc., a Delaware corporation (the “Company”), in connection with the registration by the Company of an aggregate of 10,000,000 shares (the “Shares”) of common stock, par value $0.001 per share, of the Company (the “Common Stock”), issuable under the Company’s 2008 Omnibus Long-Term Incentive Plan, as amended on May 20, 2015 and further amended on December 28, 2018 (the “Plan”), including 5,000,000 shares of the Common Stock that are issuable upon exercise of stock options granted under certain Non-Qualified Stock Option Agreements dated September 7, 2022 pursuant to the Plan. The Shares are included in a registration statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), filed by the Company with the Securities and Exchange Commission (the “Commission”) on September 11, 2023, including the prospectus (the “Prospectus”) that is a part of the Registration Statement. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus, other than as expressly stated herein with respect to the issue of the Shares.

 

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter, including, without limitation: (A) the Registration Statement, together with the exhibits filed as a part thereof and including any documents incorporated by reference therein; (b) the Certificate of Incorporation of the Company, Certificate of Renewal and Revival of Charter and the subsequent charter amendments; (B) the Bylaws of the Company; (D) the Plan; (E) the Non-Qualified Stock Option Agreements; and (F) corporate resolutions and proceedings of the Company relating to the Plan and the Non-Qualified Stock Option Agreements. We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to any other laws.

 

In making the foregoing examination, we have assumed the genuineness and authenticity of all signatures on all original documents, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies and the due authorization, execution, delivery or recordation of all documents where due authorization, execution or recordation are prerequisites to the effectiveness thereof. We have further assumed that the Company has reserved for issuance an adequate number of authorized and unissued shares of Common Stock for issuance under the Plan.

 

Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein and having regard for such legal considerations as we deem relevant, we are of the opinion that (i) the Shares covered by the Registration Statement have been duly authorized and, when issued and sold in accordance with the Plan or in accordance with the applicable Non-Qualified Stock Option Agreements, as the case may be, will be validly issued, fully paid and nonassessable.

 

In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

 

 

Kandi Technologies Group, Inc.

September 11, 2023

Page 2

 

Our opinions are subject to and limited by (i) the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or secured parties generally, (ii) the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law), including, without limitation, the possible unavailability of specific performance, injunctive relief or another equitable remedy, (iii) concepts of materiality, reasonableness, good faith and fair dealing, and (iv) the public policy against indemnifications for an indemnified party’s gross negligence or for violations of securities law.

  

Our opinion is based on facts and laws as in effect on the date hereof and as of the effective date of the Registration Statement, and we assume no obligation to revise or supplement this opinion after the effective date of the Registration Statement should the law be changed by legislative action, judicial decision or otherwise. Where our opinions expressed herein refer to events to occur at a future date, we have assumed that there will have been no changes in the relevant law or facts between the date hereof and such future date. Our opinions expressed herein are limited to the matters expressly stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Not in limitation of the foregoing, we are not rendering any opinion as to the compliance with any other federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.

 

We hereby consent to the filing of this opinion letter with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are experts with respect to any part of the Registration Statement or Prospectus within the meaning of the term “expert” as used in Section 11 of the 1933 Act or the rules and regulations promulgated thereunder by the Commission, nor do we admit that we are within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the Commission promulgated thereunder.

 

	Very truly yours,
	/s/ Pryor Cashman LLP

 

 

 

Exhibit 10.3

 

Amendment No. 2 to

2008 OMNIBUS LONG-TERM INCENTIVE PLAN

OF KANDI TECHNOLOGIES GROUP, INC.

 

Kandi Technologies Group, Inc. (the “Company”) previously approved and adopted the 2008 Omnibus Long-Term Incentive Plan (the “Plan”) to enhance the Company’s and its affiliates’ ability to attract and retain highly qualified officers, directors, key employees and other persons, and to motivate such officers, directors, key employees and other persons to serve the Company and its affiliates and to expend maximum effort to improve the business results and earnings of the Company. By this Amendment, the Company desires to amend its name as mentioned in the Plan, and amend the Plan to increase the number of shares available under the Plan.

 

1.

Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Plan.

 

2.

The effective date of this Amendment to the Plan shall be November 12, 2018, subject to the shareholders’ approval.

 

3.

The first paragraph under Section 4 of the Plan is amended and restated in its entirety as follows:

 

“Subject to adjustment as provided in Section 15 hereof, the maximum number of shares of Stock available for issuance under the Plan shall be 23,000,000. All such shares of Stock available for issuance under the Plan shall be available for issuance pursuant to Incentive Stock Options. Stock issued or to be issued under the Plan shall be authorized but unissued shares; or, to the extent permitted by applicable law, issued shares that have been reacquired by the Company.”

 

4.

Section 5.1 of the Plan is amended and restated in its entirety as follows:

 

“5.1. Term.

 

The Plan shall be effective as of the Effective Date and shall terminate on the twenty (20) year anniversary of the Effective Date, and may be terminated on any earlier date as provided in Section 5.2.”

 

5.

This Amendment shall amend only the provisions of the Plan as set forth herein. Those provisions of the Plan not expressly amended hereby shall be considered in full force and effect.

 

 

IN WITNESS WHEREOF, the Company has caused this Amendment No. 2 to be executed by its duly authorized representative on this November 12, 2018.

 

	Kandi Technologies Group, Inc.
	By:	/s/ Xiaoming Hu
	Name:	Hu Xiaoming
	Title:	Chief Executive Officer

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Kandi Technologies Group Inc. of our report dated March 16, 2023, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of Kandi Technologies Group, Inc. and subsidiaries (the “Company”) for the years ended December 31, 2022 and 2021, appearing in the Company’s Annual Report on Form 10-K as of and for the year ended December 31, 2022.

 

We also consent to the reference to us under the caption “Experts” appearing in the reoffer prospectus of the Registration Statement

 

/s/ Kreit & Chiu CPA LLP
Los Angeles, California
September 11, 2023

Exhibit 107

 

Calculation of Filing Fee Tables

 

S-8

(Form Type)

 

Kandi Technologies Group, Inc..

(Exact Name of Registrant as Specified in its Charter)

 

Not Applicable

(Translation of Registrant’s Name into English)

 

Table 1: Newly Registered and Carry Forward Securities

 

Security Type

Security Class Title

Fee Calculation or Carry Forward Rule

Amount Registered(1)

Proposed Maximum Offering Price Per Share(2)

Maximum Aggregate Offering Price(2)

Fee Rate

Amount of Registration Fee

Carry Forward Form Type

Carry Forward File Number

Carry Forward Initial effective date

Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward

Newly Registered Securities

Fees to Be Paid

Equity

Common Stock, $0.001 par value per share

Rule 457(c) (2)

5,000,000

(3)

$

3.23

$

16,150,000

0.0001102

$

1,779.43

N/A

N/A

N/A

N/A

Equity

Common Stock, $0.001 par value per share

Rule 457(c) (2)

5,000,000

(4)

$

3.23

$

16,150,000

0.0001102

$

1,779.43

N/A

N/A

N/A

N/A

Fees Previously Paid

N/A

N/A

N/A

N/A

Carry Forward Securities

Carry Forward Securities

Total Offering Amounts

$

32,300,000

$

3,559.46

Total Fees Previously Paid

Total Fee Offsets

Net Fee Due

$

3,559.46

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock, par value $0.001 per share (the “Common Stock”) of Kandi Technologies Group, Inc. (the “Company”) that may become issuable under the terms of the Kandi Technologies Group, Inc. 2008 Omnibus Long-Term Incentive Plan (the “2008 Plan”), by reason of any share split, share dividend, recapitalization or other similar transaction effected without the Company’s receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock.

 

(2)	Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) under the Securities Act of 1933, as amended, based on the average of the high and low prices of the Company’s common stock on September 7, 2023.
(3)	Represents shares of Common Stock underlying certain outstanding stock options previously granted under the 2008 Plan.
(4)	Represents shares of Common Stock reserved for issuance pursuant to future awards under the 2008 Plan.

  

 

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