As
filed with the Securities Exchange Commission on November 19,
2009
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
____________________________
KANDI TECHNOLOGIES,
CORP.
(Exact
name of registrant as specified in its charter)
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Delaware
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90-0363723
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
Number)
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Jinhua
City Industrial Zone
Jinhua,
Zhejiang Province
People’s
Republic of China
Post Code
321016
(86-579)
83906856
(Address,
including zip code, and telephone number, including area code,
of
registrant's principal executive office)
Hu
Xiaoming
Kandi
Technologies, Corp.
Jinhua
City Industrial Zone
Jinhua,
Zhejiang Province
People’s
Republic of China
Post Code
321016
(86-579)
83906856
(Name,
address, including zip code, and
telephone
number, including area code, of agent for service)
Copy
to:
Robert S.
Matlin, Esq.
Robert
Shin, Esq.
K&L
Gates LLP
599
Lexington Avenue
New York,
NY 10022
212-536-3900
_____________________
If the
only securities being registered on this Form are being offered pursuant to
dividend or reinvestment plans, please check the following box.
o
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 of 1933, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.
o
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.
o
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.
o
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 classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following
box.
o
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 definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
Large
accelerated filer
o
Accelerated
filer
o
Non-accelerated
filer
o
Smaller
reporting company
x
CALCULATION
OF REGISTRATION FEE
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TITLE
OF EACH CLASS
OF
SECURITIES TO BE
REGISTERED
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AMOUNT
TO BE
REGISTERED
(1)
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PROPOSED
MAXIMUM
OFFERING
PRICE
PER
UNIT
(1)(2)
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PROPOSED
MAXIMUM
OFFERING
PRICE
(1)(3)
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AMOUNT
OF
REGISTRATION
FEE (1)
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Common
Stock, par value $0.001 per share (4)(9)
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Preferred
Stock, par value $0.001 per share (5)(9)
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Warrants
(6)(9)
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Subscription
Rights (7)(9)
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Debt
Securities (8)(9)
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Total
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$30,000,000
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100
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%
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$30,000,000
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(10)
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$1,674.00
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(1)
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Not
specified as to each class of securities to be registered pursuant to
General Instruction II.D. to Form S-3.
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(2)
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The
proposed maximum offering price per unit will be determined from time to
time by the registrant in connection with the issuance by the registrant
of the securities registered hereunder.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(o).
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(4)
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Subject
to note (10) below, there is being registered an indeterminate number of
shares of common stock.
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(5)
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Subject
to note (10) below, there is being registered an indeterminate number of
shares of preferred stock.
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(6)
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Subject
to note (10) below, there is being registered hereunder an indeterminate
amount and number of warrants. The warrants may represent the right to
purchase common stock, preferred stock or debt securities.
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(7)
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Subject
to note (10) below, there is being registered an indeterminate number of
subscription rights that may represent a right to purchase common stock,
preferred stock or debt securities.
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(8)
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Subject
to note (10) below, there is being registered an indeterminate principal
amount of debt securities.
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(9)
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Subject
to note (10) below, this registration statement also covers an
indeterminate amount of securities as may be issued in exchange for, or
upon conversion or exercise of, as the case may be, the preferred stock,
warrants, subscription rights or debt securities registered hereunder. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder. No separate consideration will be
received for any securities registered hereunder that are issued in
exchange for, or upon conversion of, as the case may be, the preferred
stock, depositary shares, warrants, subscription rights or debt
securities.
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(10)
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In
no event will the aggregate initial offering price of all securities
issued from time to time pursuant to the prospectus contained in this
registration statement exceed $30,000,000 or the equivalent thereof in one
or more foreign currencies or foreign currency units. Such amount
represents the offering price of any common stock and preferred stock, the
principal amount of any debt securities issued at their stated principal
amount, the issue price rather than the principal amount of any debt
securities issued at an original issue discount, the issue price of any
warrants, the exercise price of any securities issuable upon the exercise
of warrants and the issue price of any securities issuable upon the
exercise of subscription rights. The aggregate principal amount of debt
securities may be increased if any debt securities are issued at an
original issue discount by an amount such that the offering price to be
received by the registrant shall be equal to the above amount to be
registered. Any offering of securities denominated other than in United
States dollars will be treated as the equivalent of United States dollars
based on the exchange rate applicable to the purchase of such securities
at the time of initial offering. The securities registered hereunder may
be sold separately or as units with other securities registered
hereunder.
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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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION
8(a), MAY DETERMINE.
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The information in this preliminary prospectus is not
complete and may be changed. We may not sell securities under this
registration statement until the registration statement filed with the
Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell any securities and it is not soliciting
an offer to buy these securities in any state where the offer or sale is
not permitted.
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SUBJECT
TO COMPLETION, DATED November 19, 2009
$30,000,000
KANDI
TECHNOLOGIES, CORP.
Common
Stock
Preferred
Stock
Warrants
Subscription
Rights
Debt
Securities
We may
offer and sell from time to time our common stock, preferred stock, warrants,
subscription rights and debt securities. We may sell any combination of these
securities in one or more offerings with an aggregate initial offering price of
$30,000,000 or the equivalent amount in other currencies or currency
units.
We will
provide the specific terms of the securities to be offered in one or more
supplements to this prospectus. You should read this prospectus and the
applicable prospectus supplement carefully before you invest in our securities.
This prospectus may not be used to offer and sell our securities unless
accompanied by a prospectus supplement describing the method and terms of the
offering of those offered securities.
We may
sell the securities directly or to or through underwriters or dealers, and also
to other purchasers or through agents. The names of any underwriters or agents
that are included in a sale of securities to you, and any applicable commissions
or discounts, will be stated in an accompanying prospectus supplement. In
addition, the underwriters, if any, may over-allot a portion of the
securities.
Investing in our securities involves
risks. See ‘‘Risk Factors’’ beginning on page 2. The prospectus supplement
applicable to each type or series of securities we offer may contain a
discussion of additional risks applicable to an investment in us and the
particular type of securities we are offering under that prospectus
supplement.
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 the prospectus. Any
representation to the contrary is a criminal offense.
The date
of this prospectus is ___________ __ , 2009
TABLE
OF CONTENTS
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Page No.
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ABOUT
THIS PROSPECTUS
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1
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WHERE
YOU CAN FIND MORE INFORMATION
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INFORMATION
WE INCORPORATE BY REFERENCE
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1
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THE
COMPANY
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2
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RISK
FACTORS
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2
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DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
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USE
OF PROCEEDS
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RATIO
OF EARNINGS TO FIXED CHARGES
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4
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DESCRIPTION
OF COMMON STOCK
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4
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DESCRIPTION
OF PREFERRED STOCK
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6
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DESCRIPTION
OF WARRANTS
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6
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DESCRIPTION
OF SUBSCRIPTION RIGHTS
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7
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DESCRIPTION
OF DEBT SECURITIES
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8
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PLAN
OF DISTRIBUTION
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11
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LEGAL
MATTERS
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13
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EXPERTS
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13
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About
this Prospectus
This
prospectus is part of a registration statement that we filed with the SEC
utilizing a “shelf” registration process. Under this shelf process, we may sell
any combination of the securities described in this prospectus. This prospectus
provides you with a general description of the securities we may offer. When we
sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described under the heading “Where You Can Find More
Information” and “Information We Incorporate By Reference.”
You
should rely only on the information contained or incorporated by reference in
this prospectus and in any prospectus supplement or in any free writing
prospectus that we may provide you. We have not authorized anyone to provide you
with different information. You should not assume that the information contained
in this prospectus, any prospectus supplement, any document incorporated by
reference or any free writing prospectus is accurate as of any date, other than
the date mentioned on the cover page of these documents. We are not making
offers to sell the securities in any jurisdiction in which an offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make an offer or solicitation.
References
in this prospectus to the terms “we,” “us” or “the Company” or other similar
terms mean Kandi Technologies, Corp., unless we state otherwise or the context
indicates otherwise.
INFORMATION
WE INCORPORATE BY REFERENCE
The SEC
allows us to incorporate by reference the information we file with them, which
means:
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incorporated
documents are considered part of the
prospectus;
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we
can disclose important information to you by referring you to those
documents; and
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information
that we file with the SEC after the date of this prospectus will
automatically update and supersede the information contained in this
prospectus and incorporated
filings.
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We
incorporate by reference the documents listed below that we filed with the SEC
under the Exchange Act:
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our
Annual Report on Form 10-K for the year ended December 31,
2008;
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009, June
30, 2009 and
September
30, 2009;
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our
Current Report on Form 8-K filed on July 2, 2009;
and
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the
description of our common stock contained in the registration statement on
Form S-8(Registration No. 333-156582) filed with the SEC on January 6,
2009, and all amendments andreports filed for the purpose of updating that
description.
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We also
incorporate by reference each of the documents that we file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of the
initial filing of this registration statement, of which this prospectus forms a
part, prior to the effectiveness of this registration statement and (2) after
the date of this prospectus until the offering of the securities terminates. We
will not, however, incorporate by reference in this prospectus any documents or
portions thereof that are not deemed “filed” with the SEC, including any
information furnished pursuant to Item 2.02 or Item 7.01 of our current reports
on Form 8-K after the date of this prospectus unless, and except to the extent,
specified in such current reports.
We will
provide you with a copy of any of these filings (other than an exhibit to these
filings, unless the exhibit is specifically incorporated by reference into the
filing requested) at no cost, if you submit a request to us by writing or
telephoning us at the following address and telephone number:
Kandi
Technologies, Corp.
Jinhua
City Industrial Zone
Jinhua,
Zhejiang Province
People’s
Republic of China
Post Code
321016
Tel:
(86-579) 83906856
Any
statement contained or 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 any subsequently filed document
which also is incorporated herein by reference, modifies or supersedes such
earlier statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
Any statement made in this prospectus concerning the contents of any contract,
agreement or other document is only a summary of the actual contract, agreement
or other document. If we have filed or incorporated by reference any contract,
agreement or other document as an exhibit to the registration statement, you
should read the exhibit for a more complete understanding of the document or
matter involved. Each statement regarding a contract, agreement or other
document is qualified by reference to the actual document.
The
Company
Kandi Technologies, Corp. (“Kandi” or
the “Company”) founded in 2003 and headquartered in Zhejiang Province, The
Peoples Republic of China, (the PRC), achieved a listing on NASDAQ in March,
2008 with the symbol: KNDI. Kandi is one of China’s leading producers
of All Terrain Recreational Vehicles, including Go-karts, where it has been
China’s number one exporter. Kandi has increased its focus on fuel
efficient vehicles, including the all-electric mini-car, the Kandi
COCO. The Company has also begun to shift its sales away from the
export market to the growing domestic Chinese market. Kandi believes
that its mini-cars will become the Company’s largest revenue and profit
generators. The Company’s products can be viewed at
http://www.chinakandi.com
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RISK
FACTORS
Investing
in our securities involves risk. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors discussed
under the heading “Risk Factors” in our most recent Annual Report on Form 10-K
and in our most recent Quarterly Reports on Form 10-Q, which are incorporated
herein by reference and may be amended, supplemented or superseded from time to
time by other reports we file with the SEC in the future. The risks and
uncertainties we have described are not the only ones we face. Additional risks
and uncertainties not presently known to us or that we currently deem immaterial
may also affect our operations. If any of these risks actually occurs, our
business, results of operations and financial condition could suffer. In that
case, the trading price of our securities could decline, and you could lose all
or a part of your investment.
FORWARD-LOOKING
STATEMENTS
This
prospectus contains forward-looking statements within the meaning of the federal
securities laws that relate to future events or our future financial
performance. In some cases, you can identify forward-looking statements by
terminology, such as “may,” “will,” “should,” “could,” “expect,” “plan,”
“anticipate,” “believe,” “estimate,” “project,” “predict,” “intend,” “potential”
or “continue” or the negative of such terms or other comparable terminology,
although not all forward-looking statements contain such terms. In addition,
these forward-looking statements include, but are not limited to, statements
regarding:
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implementing
our business strategy;
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development,
commercialization and marketing of our products;
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our
intellectual
property;
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our
estimates of future revenue and profitability;
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our
estimates or expectations of continued losses;
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our
expectations regarding future expenses, including research and
development, sales and marketing, manufacturing and general and
administrative expenses;
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difficulty
or inability to raise additional financing, if needed, on terms acceptable
to us;
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our
estimates regarding our capital requirements and our needs for additional
financing;
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attracting
and retaining customers and employees;
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sources
of revenue and anticipated revenue; and
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competition
in our market.
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These
statements are only predictions. Although we believe that the expectations
reflected in these forward-looking statements are reasonable, we cannot
guarantee future results, levels of activity, performance or achievements. We
are not required to and do not intend to update any of the forward-looking
statements after the date of this prospectus or to conform these statements to
actual results. In light of these risks, uncertainties and assumptions, the
forward-looking events discussed in this prospectus might not occur. Actual
results, levels of activity, performance, achievements and events may vary
significantly from those implied by the forward-looking statements. A
description of risks that could cause our results to vary appears under “Risk
Factors” and elsewhere in this prospectus.
In this
prospectus, we refer to information regarding our potential markets and other
industry data. We believe that we have obtained this information from reliable
sources that customarily are relied upon by companies in our industry, but we
have not independently verified any of this information.
Unless we
inform you otherwise in the applicable prospectus supplement, we expect to use
the net proceeds from the sale of securities for general corporate purposes.
These purposes may include, but are not limited to:
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reduction
or refinancing of outstanding indebtedness or other corporate
obligations;
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additions
to working capital;
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capital
expenditures; and
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Pending
any specific application, we may initially invest funds in short-term marketable
securities or apply them to the reduction of short-term
indebtedness.
RATIO
OF EARNINGS TO FIXED CHARGES
The following table sets forth our
ratio of earnings to fixed charges for each of the years ended December 31,
2008, 2007 and the nine months ended September 30, 2009. The table
also includes the ratio of earnings to fixed charges for our predecessor, Stone
Mountain Resources, Inc., for the years ended 2006, 2005 and 2004.
For
purposes of calculating the ratios of earnings to fixed charges:
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Earnings
is the amount of income before income taxes, discontinued operations,
cumulative effect of change in accounting principle charges, and fixed
charges.
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Fixed
charges is the sum of (i) interest expense and (ii) a portion of rental
expense which we believe is representative of the interest component of
rental expense.
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Year
ended December 31,
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Nine
Months Ended September 30,
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2004
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2005
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2006
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2007
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2008
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2009
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Ratio
of earnings to fixed charges
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--
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--
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--
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5.50
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3.15
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1.30
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Ratio
of earnings to combined fixed charges and preferred stock
dividends
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--
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--
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--
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5.50
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3.15
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1.30
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For the periods indicated above, we had
no outstanding shares of preferred stock with required dividend payments.
Therefore, our ratios of earnings to combined fixed charges and preferred stock
dividends for the periods indicated are identical to the ratios presented in the
table above.
DESCRIPTION
OF COMMON STOCK
The following description is a general
summary of the terms of the common stock that we may issue. The description
below and in any prospectus supplement does not include all of the terms of the
common stock and should be read together with our Certificate of Incorporation
and bylaws, copies of which have been filed previously with the
SEC. For more information on how you can obtain copies of our
Certificate of Incorporation and bylaws, see “Where You Can Find More
Information.”
General
Under our Certificate of Incorporation,
we are authorized to issue up to 100,000,000 shares of common stock, par value
$.001 per share.
The
shares of common stock offered by this prospectus and any applicable prospectus
supplement will be, when issued and paid for as described in the applicable
prospectus supplement, validly issued, fully paid and nonassessable. Holders of
common stock have no preemptive rights to subscribe for any of our securities,
nor do they have any preference, conversion, exchange, sinking fund, redemption
or appraisal rights.
Our
common stock is listed on NASDAQ under the symbol “KNDI.”
Voting
Rights
Each
stockholder of record of our common stock is entitled to one vote for each share
held on every matter properly submitted to such stockholders for a vote. Holders
of our common stock do not have cumulative voting rights.
Dividends
Subject
to the rights of holders of any preferred stock, if any, each record holder of
common stock on the applicable record date is entitled to receive dividends on
common stock to the extent authorized by our board of directors out of assets
legally available for the payment of dividends. In addition, subject to the
rights of holders of any preferred stock, holders of common stock are entitled
to share ratably in our assets legally available for distribution to our
shareholders in the event of our liquidation, dissolution or winding up after
payment of or adequate provision for all our known debts and
liabilities.
Transfer
Agent
Corporate
Stock Transfer is the registrar and transfer agent for our common
stock.
Anti-takeover
Provisions
Delaware
Anti-Takeover Law
Section 203
of the Delaware General Corporation Law, or DGCL, provides that, subject to
exceptions specified therein, an “interested stockholder” of a Delaware
corporation shall not engage in any “business combination,” including general
mergers or consolidations or acquisitions of additional shares of the
corporation, with the corporation for a three-year period following the time
that such stockholder becomes an interested stockholder
unless:
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prior
to such time, the board of directors of the corporation approved either
the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
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upon
consummation of the transaction which resulted in the 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 specified
shares); or
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on
or subsequent to such time, the business combination is approved by the
board of directors of the corporation and authorized at an annual or
special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock not
owned by the interested
stockholder.
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Under
Section 203, the restrictions described above also do not apply to
specified business combinations proposed by an interested stockholder following
the announcement or notification of specified transactions involving the
corporation and a person who had not been an interested stockholder during the
previous three years or who became an interested stockholder with the approval
of a majority of the corporation’s directors, if such transaction is approved or
not opposed by a majority of the directors who were directors prior to any
person becoming an interested stockholder during the previous three years or
were recommended for election or elected to succeed such directors by a majority
of such directors.
Except as
otherwise specified in Section 203, an “interested stockholder” is defined
to include:
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any
person that is the owner of 15% or more of the outstanding voting stock of
the corporation, or is an affiliate or associate of the corporation and
was the owner of 15% or more of the outstanding voting stock of the
corporation at any time within three years immediately prior to the date
of determination; and
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the
affiliates and associates of any such
person.
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Under
some circumstances, Section 203 makes it more difficult for a person who is
an interested stockholder to effect various business combinations with us for a
three-year period. Section 203 may also have the effect of preventing
changes in our management and could make it more difficult to accomplish
transactions that our stockholders may deem to be in their best interests. We
have not elected to be exempt from the restrictions imposed under
Section 203.
Certificate
of Incorporation and Bylaw Provisions
Our
bylaws provide that the authorized number of our directors is fixed by our board
of directors, provided that the number of directors shall be at least two. Each
director will serve a one-year
term.
Our
bylaws provide that special meetings of our stockholders may be called by our
President whenever directed in writing by a majority of our Board of Directors
or by the request of the holders of one-third of the number of outstanding
voting shares.
Our
certificate of incorporation and bylaws provide that vacancies in our board of
directors may be filled by the affirmative vote of a majority of the remaining
directors then in office, even if less than a quorum or by the sole remaining
director. In addition, our bylaws provide that any director or the entire Board
of Directors may be removed, with or without cause, by majority vote of the
stockholders.
Our
bylaws provide that our bylaws may be amended at any annual meeting of
stockholders or at any special meeting by holders of a majority of voting shares
or by a majority of the Board of Directors at any Board
meeting.
DESCRIPTION
OF PREFERRED STOCK
We believe that the availability of the
preferred stock under our certificate of incorporation will provide us with
flexibility in structuring possible future financings and acquisitions and in
meeting other corporate needs which might arise. Having these authorized shares
available for issuance will allow us to issue shares of preferred stock without
the expense and delay of a special stockholders’ meeting. The authorized shares
of preferred stock, as well as shares of common stock, will be available for
issuance without further action by our stockholders, unless action is required
by applicable law or the rules of any stock exchange on which our securities may
be listed. The board of directors has the power, subject to applicable law, to
issue series of preferred stock that could, depending on the terms of the
series, impede the completion of a merger, tender offer or other takeover
attempt. For instance, subject to applicable law, series of preferred stock
might impede a business combination by including class voting rights which would
enable the holder or holders of such series to block a proposed transaction. Our
board of directors will make any determination to issue shares based on its
judgment as to our and our stockholders’ best interests. Our board of directors,
in so acting, could issue preferred stock having terms which could discourage an
acquisition attempt or other transaction that some, or a majority, of the
stockholders might believe to be in their best interests or in which
stockholders might receive a premium for their stock over the then prevailing
market price of the stock.
DESCRIPTION
OF WARRANTS
We may
issue warrants for the purchase of common stock, preferred stock, or any
combination thereof. We may issue warrants independently or together with any
other securities offered by any prospectus supplement. Warrants may be attached
to or separate from the other offered securities. Further terms of the warrants
and the applicable warrant agreements will be set forth in the applicable
prospectus supplement.
The
applicable prospectus supplement will describe the terms of the warrants in
respect of which this prospectus is being delivered, including, where
applicable, the following:
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the
title of the warrants;
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the
aggregate number of the warrants;
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the
price or prices at which the warrants will be issued;
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the
designation, number or principal amount and terms of the common stock
and/or preferred stock purchasable upon exercise of the
warrants;
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the
designation and terms of the offered securities, if any, with which the
warrants are issued and the number of the warrants issued with each
offered security;
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the
date, if any, on and after which the warrants and the related underlying
securities will be separately transferable;
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the
price at which each underlying security purchasable upon exercise of the
warrants may be purchased;
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the
date on which the right to exercise the warrants shall commence and the
date on which that right shall expire;
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the
minimum or maximum amount of the warrants which may be exercised at any
one time;
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information
with respect to book-entry procedures, if any;
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a
discussion of certain federal income tax
considerations; and
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any
other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the
warrants.
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DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue to our shareholders
subscription rights to purchase our common stock, preferred stock, or debt
securities. The following description sets forth certain general terms and
provisions of the subscription rights that we may offer pursuant to this
prospectus. The particular terms of the subscription rights and the extent, if
any, to which the general terms and provisions may apply to the subscription
rights so offered will be described in the applicable prospectus
supplement.
Subscription rights may be issued
independently or together with any other security offered by this prospectus and
may or may not be transferable by the shareholder receiving the rights in the
rights offering. In connection with any rights offering, we may enter into a
standby underwriting agreement with one or more underwriters pursuant to which
the underwriter will purchase any securities that remain unsubscribed for upon
completion of the rights offering, or offer these securities to other parties
who are not our shareholders. A copy of the form of subscription rights
certificate will filed with the SEC each time we issue subscription rights, and
you should read that document for provisions that may be important to you. For
more information on how you can obtain a copy of any subscription rights
certificate, see “Where You Can Find More Information.”
The applicable prospectus supplement
relating to any subscription rights will describe the terms of the offered
subscription rights, including, where applicable, the following:
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the
exercise price for the subscription rights;
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the
number of subscription rights issued to each
shareholder;
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the
extent to which the subscription rights are
transferable;
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any
other terms of the subscription rights, including terms, procedures and
limitations relating to the exchange and exercise of the subscription
rights;
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the
date on which the right to exercise the subscription rights will commence
and the date on which the right will
expire;
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the
extent to which the subscription rights include an over-subscription
privilege with respect to unsubscribed securities; and
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the
material terms of any standby underwriting arrangement entered into by us
in connection with the subscription rights
offering.
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DESCRIPTION
OF DEBT SECURITIES
We may
offer secured or unsecured debt securities, which may be senior, subordinated or
junior subordinated, and which may be convertible or exchangeable. We may issue
debt securities in one or more series. As of the date of this prospectus, we
have no debt securities issued and outstanding.
The
following description briefly sets forth certain general terms and provisions of
the debt securities. The particular terms of the debt securities
offered by any prospectus supplement and the extent, if any, to which these
general provisions may apply to the debt securities, will be described in the
applicable prospectus supplement. If we offer senior debt securities, we will
issue them under a senior indenture. If we issue subordinated debt securities,
we will issue them under a subordinated indenture. If we offer junior
subordinated securities, we will issue them under a junior subordinated
indenture. A form of each indenture will be filed as an exhibit to the
registration statement of which this prospectus forms a part. The terms of the
debt securities will include those set forth in the applicable indenture, any
related securities documents and those made a part of the applicable indenture
by the Trust Indenture Act of 1939. You should read the summary below, the
applicable prospectus supplement and the provisions of the applicable indenture
and any related security documents, if any, in their entirety before investing
in our debt securities.
The
prospectus supplement relating to any series of debt securities that we may
offer will contain the specific terms of the debt securities. These terms may
include the following:
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the
title and aggregate principal amount of the debt
securities;
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whether
the debt securities will be senior, subordinated or junior
subordinated;
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whether
the obligations evidenced by such debt securities will be secured or
unsecured;
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the
specific indenture under which the debt securities will be
issued;
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applicable
subordination provisions, if any;
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whether
the debt securities are convertible or exchangeable into other
securities;
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the
percentage or percentages of principal amount at which such debt
securities will be issued;
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the
interest rate(s) or the method for determining the interest
rate(s);
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the
dates on which interest will accrue or the method for determining dates on
which interest will accrue and dates on which interest will be
payable;
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the
maturity date;
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redemption
or early repayment provisions;
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authorized
denominations;
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form;
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amount
of discount or premium, if any, with which such debt securities will be
issued;
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whether
such debt securities will be issued in whole or in part in the form of one
or more global securities;
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the
identity of the depositary for global securities;
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whether
a temporary security is to be issued with respect to such series and
whether any interest payable prior to the issuance of definitive
securities of the series will be credited to the account of the persons
entitled thereto;
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the
terms upon which beneficial interests in a temporary global security may
be exchanged in whole or in part for beneficial interests in a definitive
global security or for individual definitive
securities;
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any
covenants applicable to the particular debt securities being
issued;
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any
defaults and events of default applicable to the particular debt
securities being issued;
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the
guarantors of each series, if any, and the extent of the guarantees
(including provisions relating to seniority, subordination, security and
release of the guarantees), if any;
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any
applicable subordination provisions for any subordinated debt
securities;
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any
restriction or condition on the transferability of the debt
securities;
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the
currency, currencies or currency units in which the purchase price for,
the principal of and any premium and any interest on, such debt securities
will be payable;
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the
time period within which, the manner in which and the terms and conditions
upon which the purchaser of the debt securities can select the payment
currency;
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the
securities exchange(s) on which the securities will be listed, if
any;
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whether
any underwriter(s) will act as market maker(s) for the
securities;
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the
extent to which a secondary market for the securities is expected to
develop;
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our
obligation or right to redeem, purchase or repay debt securities under a
sinking fund, amortization or analogous provision;
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provisions
relating to covenant defeasance and legal defeasance;
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provisions
relating to satisfaction and discharge of the
indenture;
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provisions
relating to the modification of the indenture both with and without the
consent of holders of debt securities issued under the indenture;
and
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additional
terms not inconsistent with the provisions of the
indenture.
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We may
sell the debt securities, including original issue discount securities, at par
or at a substantial discount below their stated principal amount. Unless we
inform you otherwise in a prospectus supplement, we may issue additional debt
securities of a particular series without the consent of the holders of the debt
securities of such series outstanding at the time of issuance. Any such
additional debt securities, together with all other outstanding debt securities
of that series, will constitute a single series of securities under the
applicable indenture. In addition, we will describe in the applicable prospectus
supplement, material U.S. federal income tax considerations and any other
special considerations for any debt securities we sell which are denominated in
a currency or currency unit other than U.S. dollars. Unless we inform you
otherwise in the applicable prospectus supplement, the debt securities will not
be listed on any securities exchange.
We expect
most debt securities to be issued in fully registered form without coupons and
in denominations of $1,000 and any integral multiples thereof. Subject to the
limitations provided in the indenture and in the prospectus supplement, debt
securities that are issued in registered form may be transferred or exchanged at
the corporate office of the trustee or the principal corporate trust office of
the trustee, without the payment of any service charge, other than any tax or
other governmental charge payable in connection therewith.
Governing
Law
The
indentures will be governed by, and construed in accordance with, the laws of
the State of New York.
Global
Securities
Unless we
inform you otherwise in the applicable prospectus supplement, the debt
securities of a series may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depositary identified in the applicable prospectus supplement. Global securities
will be issued in registered form and in either temporary or definitive form.
Unless and until it is exchanged in whole or in part for the individual debt
securities, a global security may not be transferred except as a whole by the
depositary for such global security to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor of such
depositary or a nominee of such successor. The specific terms of the depositary
arrangement with respect to any debt securities of a series and the rights of
and limitations upon owners of beneficial interests in a global security will be
described in the applicable prospectus supplement.
PLAN
OF DISTRIBUTION
We may
sell the offered securities in and outside the United States:
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through
underwriters or dealers;
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directly
to purchasers;
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in
a rights offering;
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in
“at the market” offerings, within the meaning of Rule 415(a)(4) of
the Securities Act, to or through a market maker or into an existing
trading market on an exchange or otherwise;
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through
agents; or
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through
a combination of any of these
methods.
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The
prospectus supplement will include the following information:
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the
terms of the offering;
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the
names of any underwriters or agents;
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the
name or names of any managing underwriter or
underwriters;
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the
purchase price or initial public offering price of the
securities;
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the
net proceeds from the sale of the securities;
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any
delayed delivery arrangements;
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any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
commissions paid to agents.
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Sale
through Underwriters or Dealers
If
underwriters are used in the sale, the underwriters will acquire the securities
for their own account. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
Underwriters may offer securities to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. Unless we inform you otherwise in the
prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions, and the underwriters will be
obligated to purchase all the offered securities if they purchase any of them.
The underwriters may change from time to time any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers.
If we
offer securities in a subscription rights offering to our existing security
holders, we may enter into a standby underwriting agreement with dealers, acting
as standby underwriters. We may pay the standby underwriters a commitment fee
for the securities they commit to purchase on a standby basis. If we do not
enter into a standby underwriting agreement, we may retain a dealer-manager to
manage a subscription rights offering for us.
During
and after an offering through underwriters, the underwriters may purchase and
sell the securities in the open market. These transactions may include
overallotment and stabilizing transactions and purchases to cover syndicate
short positions created in connection with the offering. The underwriters may
also impose a penalty bid, which means that selling concessions allowed to
syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if the offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, the underwriters may discontinue these
activities at any time.
Some or
all of the securities that we offer though this prospectus may be new issues of
securities with no established trading market. Any underwriters to whom we sell
our securities for public offering and sale may make a market in those
securities, but they will not be obligated to do so and they may discontinue any
market making at any time without notice. Accordingly, we cannot assure you of
the liquidity of, or continued trading markets for, any securities that we
offer.
If
dealers are used in the sale of securities, we will sell the securities to them
as principals. They may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. We will include in the
prospectus supplement the names of the dealers and the terms of the
transaction.
Direct
Sales and Sales through Agents
We may
sell the securities directly. In this case, no underwriters or agents would be
involved. We may also sell the securities through agents designated from time to
time. In the prospectus supplement, we will name any agent involved in the offer
or sale of the offered securities, and we will describe any commissions payable
to the agent. Unless we inform you otherwise in the prospectus supplement, any
agent will agree to use its reasonable best efforts to solicit purchases for the
period of its appointment.
We may
sell the securities directly to institutional investors or others who may be
deemed to be underwriters within the meaning of the Securities Act with respect
to any sale of those securities. We will describe the terms of any sales of
these securities in the prospectus supplement.
Remarketing
Arrangements
Offered
securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more remarketing firms, acting as principals for their own accounts or
as agents for us. Any remarketing firm will be identified and the terms of its
agreements, if any, with us and its compensation will be described in the
applicable prospectus supplement.
Delayed
Delivery Contracts
If we so
indicate in the prospectus supplement, we may authorize agents, underwriters or
dealers to solicit offers from certain types of institutions to purchase
securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
General
Information
We may
have agreements with the agents, dealers, underwriters and remarketing firms to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments that the agents,
dealers, underwriters or remarketing firms may be required to make. Agents,
dealers, underwriters and remarketing firms may be customers of, engage in
transactions with or perform services for us in the ordinary course of their
businesses.
DESCRIPTION
OF SHARE CAPITAL
Our
authorized share capital consists of 100,000,000 common shares, par value $0.001
per share, and 10,000,000 preferred shares, par value $0.001 per share. As of
November 11, 2009, we had outstanding (i) 19,961,000 common shares,
(ii) warrants to purchase an additional 200,000 common shares,
(iii) options to purchase an additional 2,600,000 common shares, and
(iv) no preferred shares.
CERTAIN
ERISA CONSIDERATIONS
We and
our affiliates may each be considered a party in interest within the meaning of
the Employee Retirement Income Security Act of 1974 (ERISA), or a disqualified
person under corresponding provisions of the Internal Revenue Code of 1986 (the
Code), relating to an employee benefit plan. Prohibited transactions within the
meaning of ERISA and the Code may result if any securities offered by this
prospectus are acquired by or with the assets of a pension or other employee
benefit plan relating to which we or any of our affiliates is a service
provider, unless those securities are acquired under an exemption for
transactions effected on behalf of that plan by a ‘‘qualified professional asset
manager’’ or an ‘‘in-house asset manager’’ or under any other available
exemption. Additional special considerations may arise in connection with the
acquisition of capital securities by or with the assets of a pension or other
employee benefit plan. The assets of a pension or other employee benefit plan
may include assets held in the general account of an insurance company that are
deemed to be ‘‘plan assets’’ under ERISA. Any employee benefit plan or other
entity subject to such provisions of ERISA or the Code proposing to acquire the
offered securities should consult with its legal counsel.
LEGAL
MATTERS
K&L
Gates LLP will pass upon the validity of the securities being offered
hereby.
EXPERTS
The consolidated financial statements
of Kandi Technologies, Corp. as of December 31, 2008 and 2007, and for the years
then ended, have been incorporated by reference herein in reliance upon the
report of Weinberg & Company, P.A., an independent registered public
accounting firm incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14
. Other Expenses of Issuance and
Distribution
The
following table sets forth the expenses payable by the Registrant in connection
with the sale and distribution of the securities being registered hereby. All
amounts are estimated except the Securities and Exchange Commission registration
fee.
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$
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1,674.00
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Accounting
fees and expenses
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$
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*
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Printing
and engraving
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$
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*
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Legal
fees and expenses
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$
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*
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Miscellaneous
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$
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*
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Total
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$
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*
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*
Estimated expenses are
presently not known and cannot be estimated.
Item
15. Indemnification of Directors and Officers
We have entered into indemnification
agreements with each of our directors and officers that provide the director or
officer will not be personally liable to us or our stockholders for or with
respect to any acts or omissions in the performance of his duties as a director
or officer to the fullest extent permitted by the DGCL or any other applicable
law.
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 we shall indemnify and hold harmless any person who was or is a
party or is threatened to be made a party or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that the person
is or was a director or an officer of the Company, or is or was serving at our
request, while a director or officer of the Company, as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan,
against all expense, liability and loss (including attorneys’ fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such person in connection with such action,
suit or proceeding to the fullest extent permitted or required by Delaware law.
Except with respect to proceedings to enforce rights to indemnification, we will
indemnify any such person in connection with a proceeding described above
initiated by such person only if such proceeding was authorized by our board of
directors.
Section 102(b)(7) of the DGCL provides
that a certificate of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision may not eliminate or limit the liability of a
director (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) under
Section 174 (relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit. Our certificate of
incorporation contains such a provision.
The indemnification provisions
contained in our certificate of incorporation are in addition to any other right
that a person may have or acquire under any statute, bylaw, resolution of
shareholders or directors or otherwise.
Item
16. Exhibits and Financial Statement Schedules
The following documents are exhibits to
the registration statement:
|
Exhibit Number
|
|
Description
|
|
|
|
|
|
1.1*
|
|
Form
of Underwriting Agreement
|
|
|
|
|
|
4.1
|
|
Certificate
of Incorporation of Stone Mountain Resources Inc. (filed as Exhibit 3.1 to
our Form SB-2, filed April 1, 2005 (Registration No. 333-123735)),
incorporated herein by reference
|
|
|
|
|
|
4.2
|
|
Certificate
of Amendment of Certificate of Incorporation of Stone Mountain Resources,
Inc.
|
|
|
|
|
|
4.3
|
|
By-laws
(filed as Exhibit 3.2 to our Form SB-2, filed April 1, 2005 (Registration
No. 333-123735)), incorporated herein by reference
|
|
|
|
|
|
4.4*
|
|
Form
of Debt Securities Indenture
|
|
|
|
|
|
4.5*
|
|
Form
of Debt Securities
|
|
|
|
|
|
4.6*
|
|
Form
of Warrant Agreement
|
|
|
|
|
|
4.7*
|
|
Form
of Warrant Certification
|
|
|
|
|
|
4.8*
|
|
Form
of Subscription Rights Certificate
|
|
|
|
|
|
4.9*
|
|
Form
of Certificate of Designations for Preferred Stock of Kandi Technologies,
Corp.
|
|
|
|
|
|
4.10*
|
|
Form
of Certificate of Preferred Stock
|
|
|
|
|
|
5.1*
|
|
Opinion
of K&L Gates LLP
|
|
|
|
|
|
23.1
|
|
Consent
of Weinberg & Company, P.A., Independent Registered Public Accounting
Firm
|
|
|
|
|
|
23.2*
|
|
Consent
of K&L Gates LLP
|
|
|
|
|
|
24.1
|
|
Power
of Attorney
|
*To be
filed either by amendment or as an exhibit to a report filed under the
Securities Exchange Act of 1934, 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 of
1933;
(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 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided
,
however
, that the
undertakings set forth in 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
Securities Exchange Act of 1934 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 purpose of determining any liability under the Securities Act of
1933, 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.
|
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 of 1933
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 of
1933 shall be deemed to be a part of and included in the registration statement
as of the earlier 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 a 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.
|
|
5.
|
That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 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.
The
undersigned registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription
period, the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set
forth on the cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Jinhua, The People’s Republic of China, on the 19
th
day
of November, 2009.
|
|
KANDI
TECHNOLOGIES, CORP.
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Hu Xiaoming
|
|
|
|
|
Hu
Xiaoming
|
|
|
|
|
President,
Chief Executive Officer and Chairman of the
Board
|
KNOW BY
ALL MEN THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Hu Xiaoming and Zhu Xiaoying or either of them, his
true and lawful attorney-in-fact and agent, with full power of substitution, for
him and 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 Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and 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 thereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
|
/s/
Hu Xiaoming
|
|
President,
Chief Executive Officer and Chairman of the Board
|
|
November 19,
2009
|
|
Hu
Xiaoming
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Zhu Xiaoying
|
|
Chief
Financial Officer and Director
|
|
November 19,
2009
|
|
Zhu
Xiaoying
|
|
(Principal
Financial Officer and Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Zheng Mingyang
|
|
Director
|
|
November 19,
2009
|
|
Zheng
Mingyang
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Qian Min
|
|
Director
|
|
November 19,
2009
|
|
Qian
Min
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Yao Zhengming
|
|
Director
|
|
November 19,
2009
|
|
Yao
Zhengming
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Fong Heung Sang
|
|
Director
|
|
November 19,
2009
|
|
Fong
Heung Sang
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Hu Wangyuan
|
|
Director
|
|
November 19,
2009
|
|
Hu
Wangyuan
|
|
|
|
|
EXHIBIT
INDEX
|
Exhibit Number
|
|
Description
|
|
|
|
|
|
1.1*
|
|
Form
of Underwriting Agreement
|
|
|
|
|
|
4.1
|
|
Certificate
of Incorporation of Stone Mountain Resources Inc. (filed as Exhibit 3.1 to
our Form SB-2, filed April 1, 2005 (Registration No. 333-123735)),
incorporated herein by reference
|
|
|
|
|
|
4.2
|
|
Certificate
of Amendment of Certificate of Incorporation of Stone Mountain
Resources, Inc.
|
|
|
|
|
|
4.3
|
|
By-laws
(filed as Exhibit 3.2 to our Form SB-2, filed April 1, 2005 (Registration
No. 333-123735)), incorporated herein by reference.
|
|
|
|
|
|
4.4*
|
|
Form
of Debt Securities Indenture
|
|
|
|
|
|
4.5*
|
|
Form
of Debt Securities
|
|
|
|
|
|
4.6*
|
|
Form
of Warrant Agreement
|
|
|
|
|
|
4.7*
|
|
Form
of Warrant Certification
|
|
|
|
|
|
4.8*
|
|
Form
of Subscription Rights Certificate
|
|
|
|
|
|
4.9*
|
|
Form
of Certificate of Designations for Preferred Stock of Kandi Technologies,
Corp.
|
|
|
|
|
|
4.10*
|
|
Form
of Certificate of Preferred Stock
|
|
|
|
|
|
5.1*
|
|
Opinion
of K&L Gates LLP
|
|
|
|
|
|
23.1
|
|
Consent
of Weinberg & Company, P.A., Independent Registered Public Accounting
Firm
|
|
|
|
|
|
23.2*
|
|
Consent
of K&L Gates LLP
|
|
|
|
|
|
24.1
|
|
Power
of Attorney
|
*To be
filed either by amendment or as an exhibit to a report filed under the
Securities Exchange Act of 1934, and incorporated herein by
reference.