SEC Company Response from Kandi Technologies Group, Inc. (CIK 0001316517) — Jun 30, 2022
Kandi Technologies Group, Inc. (CIK 0001316517)
Date: June 30, 2022 · CIK: 0001316517 · Accession: 0001213900-22-036381
AI Filing Summary & Sentiment
File numbers found in text: 001-33997
Referenced dates: April 7, 2022, June 16, 2022
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Kandi
Technologies Group, Inc.
Jinhua
New Energy Vehicle Town
Jinhua,
Zhejiang Province
People’s
Republic of China
June
30, 2022
VIA
EDGAR
United
States Securities and Exchange Commission
Division
of Corporation Finance
Office
of Manufacturing
100
F Street, N.E
Washington,
DC 20549
Attn:
Jennifer Angelini
Re:
Kandi Technologies Group,
Inc.
Form 10-K for the Year
Ended December 31, 2021
Response dated May 19,
2022
File No. 001-33997
Dear
Ms. Angelini,
This
letter is being furnished in response to the comments of the staff (the “Staff”) of the Division of Corporation Finance of
the Securities and Exchange Commission (the “Commission”) that were contained in the Staff’s letter dated June 16,
2022 (the “Comment Letter”) to Kandi Technologies Group, Inc. (the “Company” or “Kandi”) regarding
Form 10-K for the Year Ended December 31, 2021 (the “Form 10-K for 2021”).
This
letter provides the Company’s responses to the Staff’s comments contained in the Comment Letter. The text of the Staff’s
comments is set forth in bold below, followed by the responses of the Company.
Form
10-K for the Year Ended December 31, 2021
General
1. As
it appears your officers and directors are located in China, please revise to include a separate
Enforceability section (i.e., in addition to your disclosure on pages 2 and 27), to
disclose the difficulty of bringing actions and enforcing judgements against these individuals.
Refer to Item 101(g) of Regulation S-K.
Response: In response to the
Staff’s comment, the Company has revised its disclosure on page 2 and has added a separate Enforceability section on page 14 of
the revised Amendment No. 1 of the Form 10-K (the “Revised Amendment”) which is furnished hereto as Annex A. Once the comments
are cleared by the Staff, the Company will file the Amendment No. 1 to the Form 10-K for 2021 with the Commission publicly.
Kandi
Technologies Group, Inc.
Jinhua
New Energy Vehicle Town
Jinhua,
Zhejiang Province
People’s
Republic of China
Item
1
Business
Introduction
Selected
Condensed Consolidated Financial Schedule, page 8
2. We
note your response to prior comment five. Please further revise your Form 10-K to disclose
a narrative of the cash management policies and procedures that dictate how funds are transferred
between your entities, including whether cash generated from one subsidiary is used to fund
another subsidiary’s operations, and whether you have ever faced or could face difficulties
or limitations in your ability to transfer cash between subsidiaries. Additionally revise
your risk factors to describe relevant restrictions; for example, and without limitation,
the PRC Enterprise Income Tax law, regulation of loans and direct investments, and restrictions
on dividends.
Response: In response to the
comment, the Company has revised its disclosure on pages 11, 28 and 30 of the Revised Amendment.
CAC
Review, page 12
3. Please
revise this section to disclose how you determined no permissions or approvals were required.
If you relied on counsel, identify counsel and file an exhibit. If you did not consult counsel,
provide an explanation as to why you did not consult counsel. Please expand or revise related
risk factors as appropriate.
Response: The Company relied
on its counsel in China. A copy of the opinion from such counsel with its consent to include its name in the filing is contained as an
exhibit to the Revised Amendment. In response to the comment, the Company has revised its disclosure on pages 13 and 24 of the Revised
Amendment.
Permission
and Approvals, page 12
4. We
note your response to prior comment four. Please revise this section to describe each permission
or approval that you or your subsidiaries are required to obtain from Chinese authorities
to operate your business. State affirmatively whether you have received all requisite permissions
or approvals and whether any permissions or approvals have been denied. Please also describe
the consequences to you and your investors if you or your subsidiaries: (i) do not receive
or maintain such permissions or approvals, (ii) inadvertently conclude that such permissions
or approvals are not required, or (iii) applicable laws, regulations, or interpretations
change and you are required to obtain such permissions or approvals in the future.
Response: In response to the
Staff’s comment, the Company confirmed that it has listed all the material permissions or approvals KNDI and its subsidiaries have.
In addition, the Company has revised its disclosure on page 12 of the Revised Amendment.
2
Kandi
Technologies Group, Inc.
Jinhua
New Energy Vehicle Town
Jinhua,
Zhejiang Province
People’s
Republic of China
Item
1A
Risk Factors
Our
auditor, Paris, Kreit & Chiu CPA LLP is headquartered in New York, page 26
5. We
note your response to prior comments six and eleven. Please further revise your disclosure
to (i) reflect that the PCAOB has issued its report on December 16, 2021, notifying the Commission
of its determination that it is unable to inspect or investigate completely accounting firms
headquartered in mainland China or Hong Kong, (ii) clearly state whether your auditor is
subject to the PCAOB’s determinations, and (iii) disclose whether you have been or expect
to be identified by the Commission under the HFCAA and what impact this may have on your
ability to continue to offer securities.
Response: In response to the
Staff’s comment, the Company points the Staff to page 26 of the Revised Amendment that issue (ii) and issue (iii) have been clearly
disclosed. In addition, the Company has revised its disclosure to add a paragraph reflecting the report issued by PCAOB on December 16,
2021 and its potential impact on the Company on page 26 of the Revised Amendment.
Item
2
Properties,
page 32
6. We
note your response to prior comment 13. Please revise your disclosure to clarify what is
meant by “project completion acceptance” of your Hainan factory. Describe the acceptance
process, expected timing, and related risks to your manufacturing capacity.
Response: In response to the
Staff’s comment, the Company has revised its disclosure on pages 33 and F-24 of the Revised Amendment.
Notes
to Consolidated Financial Statements
Note
6 - Summary of Significant Accounting Policies
(v)
Consolidation of variable interest entities, page F-19
7. We
note your response to comment 16 and acknowledge the information provided on pages 8 and
9. However, we reissue our comment. Please revise the notes to the financial statements to
include the disclosures required by ASC 810-10-50-3 regarding your variable interest entity
for the reported periods. At a minimum, ensure that you disclose the carrying amount and
classification of the VIE’s assets and liabilities included in the consolidated financial
statements, as well as qualitative information about the relationship(s) between those assets
and liabilities.
Response: In response to the
Staff’s comment, the Company has revised its disclosure throughout the financial statement and added a foot note on pages F-19 –
F-21 and F-39 – F-40 of the Revised Amendment.
3
Kandi Technologies Group, Inc.
Jinhua New Energy Vehicle Town
Jinhua, Zhejiang Province
People’s Republic of China
We
thank the Staff for your review of the foregoing. If you have any questions, please do not hesitate to contact the undersigned at hxm@kandigroup.com,
or Elizabeth Fei Chen of Pryor Cashman LLP, the outside counsel to the Company, at echen@pryorcashman.com (Tel: 212-326-0199).
Very truly yours,
By:
/s/
Hu Xiaoming
Name:
Hu Xiaoming
Title:
Chief Executive Officer
cc:
Elizabeth Fei
Chen, Esq.
4
Annex
A
(The Form 10-K/A is currently subject to the Staff
review which is not filed publicly until all the proposed amended disclosure is cleared of the comments from the Staff.)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
Amendment No. 1
(Mark
One)
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For
the fiscal year ended December 31, 2021
or
☐
TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For
the transition period from ________ to ________
Commission
file number 001-33997
KANDI
TECHNOLOGIES GROUP, INC.
(Exact name of registrant as specified in charter)
Delaware
90-0363723
(State
or other jurisdiction of
(I.R.S.
Employer
incorporation
or organization)
Identification
No.)
Jinhua
New Energy Vehicle Town
Jinhua, Zhejiang Province
People’s Republic of China
321016
(Address
of principal executive offices)
(Zip
Code)
(86
- 579) 82239856
(Registrant’s telephone number, including area code)
Jinhua
City Industrial Zone, Jinhua, Zhejiang Province, People’s Republic of China 321016
(Former
name, former address and former fiscal year, if changed since last report)
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
Stock
KNDI
NASDAQ Global
Select Market
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ☐ No ☒
Indicate
by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant
to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant
was required to submit such files). Yes ☒ No ☐
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 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 pursuant to Section 13(a) of the Exchange Act. ☐
Indicate
by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C.
7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The
aggregate market value of voting and non-voting common stock held by non-affiliates of the registrant as of June 30, 2021, the last business
day of the registrant’s second fiscal quarter, was approximately $365,214,591.
The
number of shares of common stock issued and outstanding as of March 10, 2022 was 77,395,130 and 76,256,345, respectively.
DOCUMENTS
INCORPORATED BY REFERENCE:
None.
Explanatory Note
Kandi Technologies Group, Inc. is filing this
Amendment No. 1 on Form 10-K/A (this “Amendment”) to amend and supplement the Form 10-K for the year ended December 31, 2021,
filed with the U.S. Securities and Exchange Commission (the “Commission”) on March 15, 2022 (the “Form 10-K”),
to agree with the Company’s responses to the SEC Staff’s comments dated April 7, 2022 and June 16, 2022. The supplementary
disclosure does not affect any numbers in our financial statements contained in the Form 10-K.
This Amendment does not reflect events occurring
after the filing of the Form 10-K, does not update disclosures contained in the Form 10-K. Accordingly, this Amendment should be read
in conjunction with our other filings made with the Commission subsequent to the filing of the Form 10-K, including any amendments to
those filings. Capitalized terms not otherwise defined have the meanings ascribed to them in the Form 10-K.
TABLE
OF CONTENTS
PART
I
1
Item
1.
Business.
2
Item
1A.
Risk Factors.
15
Item
1B.
Unresolved
Staff Comments.
31
Item
2.
Properties.
32
Item
3.
Legal
Proceedings.
34
Item
4.
Mine
Safety Disclosures.
34
PART
II
35
Item
5.
Market
for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchase Equity Securities.
35
Item
6.
[Reserved]
36
Item
7.
Management’s
Discussion and Analysis of Financial Condition and Results of Operations.
36
Item
7A.
Quantitative
and Qualitative Disclosures about Market Risk.
46
Item
8.
Financial
Statements and Supplementary Data.
F-1
Item
9.
Changes
In and Disagreements With Accountants on Accounting and Financial Disclosure.
47
Item
9A.
Controls
and Procedures.
47
Item
9B.
Other
Information.
47
Item
9C.
Disclosure
Regarding Foreign Jurisdictions that Prevent Inspections.
47
PART
III
48
Item
10.
Directors,
Executive Officers and Corporate Governance.
48
Item
11.
Executive
Compensation.
51
Item