Attached files
file | filename |
---|---|
EX-31.2 - Hoku Corp | v173126_ex31-2.htm |
EX-31.1 - Hoku Corp | v173126_ex31-1.htm |
EX-32.1 - Hoku Corp | v173126_ex32-1.htm |
EX-32.2 - Hoku Corp | v173126_ex32-2.htm |
EX-10.117 - Hoku Corp | v173126_ex10-117.htm |
EX-10.116 - Hoku Corp | v173126_ex10-116.htm |
EX-10.115 - Hoku Corp | v173126_ex10-115.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
10-Q
x
|
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF
1934
|
FOR
THE QUARTERLY PERIOD ENDED DECEMBER 31, 2009
OR
¨
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF
1934
|
FOR THE TRANSITION PERIOD FROM
_______
TO _______
.
Commission
File Number: 000-51458
HOKU
SCIENTIFIC, INC.
(Exact
name of Registrant as specified in its Charter)
Delaware
|
99-0351487
|
|
(State or other jurisdiction of
incorporation or organization)
|
(I.R.S. Employer
Identification No.)
|
1288
Ala Moana Blvd., Ste. 220
Honolulu,
Hawaii 96814
(Address
of principal executive offices, including zip code)
(808)
682-7800
(Registrant’s
telephone number, including area code)
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. x Yes ¨ No
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted 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 and post such files). ¨ Yes ¨ No
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
¨ Large
accelerated filer x Accelerated
filer ¨ Non-accelerated
filer (Do not check if a smaller reporting company)
¨ Smaller
reporting company
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). ¨ Yes x No
Common
Stock, par value $0.001 per share, outstanding as of January 15,
2010: 54,878,692
HOKU
SCIENTIFIC, INC.
FORM
10-Q
For the
Quarterly Period Ended December 31, 2009
Table
of Contents
Part
I – Financial Information
|
||||
Item
1.
|
Financial
Statements
|
3
|
||
Consolidated
Balance Sheets as of December 31, 2009 (unaudited) and March 31,
2009
|
3
|
|||
Consolidated
Statements of Operations for the three months and nine months ended
December 31, 2009 and 2008 (unaudited)
|
4
|
|||
Consolidated
Statements of Cash Flows for the nine months ended December 31, 2009 and
2008 (unaudited)
|
5
|
|||
Notes
to Consolidated Financial Statements (unaudited)
|
6
|
|||
Item
2.
|
Management’s
Discussion and Analysis of Financial Condition and Results of
Operations
|
17
|
||
Item
3.
|
Quantitative
and Qualitative Disclosures About Market Risk
|
26
|
||
Item
4.
|
Controls
and Procedures
|
27
|
||
Part
II – Other Information
|
||||
Item
1.
|
Legal
Proceedings
|
28
|
||
Item
1A.
|
Risk
Factors
|
28
|
||
Item
6.
|
Exhibits
|
44
|
||
Signatures
|
45
|
2
PART I. FINANCIAL
INFORMATION
ITEM 1. FINANCIAL
STATEMENTS
HOKU
SCIENTIFIC, INC.
CONSOLIDATED
BALANCE SHEETS
(in
thousands, except share and per share data)
December 31,
2009
|
March 31,
2009
|
|||||||
|
(unaudited)
|
|||||||
Assets
|
||||||||
Cash
and cash equivalents
|
$ | 3,228 | $ | 17,383 | ||||
Inventory
|
715 | 1,549 | ||||||
Accounts
receivable
|
233 | 420 | ||||||
Costs
of uncompleted contracts
|
628 | 108 | ||||||
Other
current assets
|
518 | 226 | ||||||
Total
current assets
|
5,322 | 19,686 | ||||||
Deferred
cost of debt financing
|
13,673 | - | ||||||
Property,
plant and equipment, net
|
279,270 | 204,525 | ||||||
Total
assets
|
$ | 298,265 | $ | 224,211 | ||||
Liabilities
and Equity
|
||||||||
Accounts
payable and accrued expenses
|
$ | 61,464 | $ | 38,191 | ||||
Deferred
revenue
|
495 | 784 | ||||||
Deposits
– Hoku Solar
|
- | 158 | ||||||
Deposits
– Hoku Materials
|
14,641 | 375 | ||||||
Other
current liabilities
|
194 | 446 | ||||||
Total
current liabilities
|
76,794 | 39,954 | ||||||
Long-term
debt (Deposits – Hoku Materials)
|
108,359 | 133,625 | ||||||
Total
liabilities
|
185,153 | 173,579 | ||||||
Commitments
and Contingencies
|
||||||||
Equity:
|
||||||||
Preferred
stock, $0.001 par value. Authorized 5,000,000 shares; no shares issued and
outstanding as of December 31, 2009 and March 31,
2009
|
||||||||
Common
stock, $0.001 par value. Authorized 100,000,000 shares; issued
and outstanding 54,878,692 and 21,092,079 shares as of December 31, 2009
and March 31, 2009, respectively
|
54 | 21 | ||||||
Warrant
for 10,000,000 shares of common stock
|
12,884 | - | ||||||
Additional
paid-in capital
|
115,153 | 65,780 | ||||||
Accumulated
deficit
|
(18,569 | ) | (15,169 | ) | ||||
Total
Hoku Scientific, Inc. shareholders’ equity
|
109,522 | 50,632 | ||||||
Noncontrolling
interest
|
3,590 | - | ||||||
Total
equity
|
113,112 | 50,632 | ||||||
Total
liabilities and equity
|
$ | 298,265 | $ | 224,211 |
See
accompanying notes to consolidated financial statements.
3
HOKU
SCIENTIFIC, INC.
CONSOLIDATED
STATEMENTS OF OPERATIONS
(Unaudited)
(in
thousands, except share and per share data)
Three Months Ended
December 31,
|
Nine Months Ended
December 31,
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Service and license revenue
|
$ | 259 | $ | 499 | $ | 1,831 | $ | 4,322 | ||||||||
Product revenue
|
— | 268 | — | 523 | ||||||||||||
Total revenue
|
259 | 767 | 1,831 | 4,845 | ||||||||||||
Cost of service and license revenue(1)
|
65 | 374 | 1,489 | 3,186 | ||||||||||||
Cost of product revenue
|
— | 218 | — | 426 | ||||||||||||
Total cost of revenue
|
65 | 592 | 1,489 | 3,612 | ||||||||||||
Gross margin
|
194 | 175 | 342 | 1,233 | ||||||||||||
Operating expenses:
|
||||||||||||||||
Selling, general and administrative (1)
|
1,492 | 1,124 | 4,095 | 3,428 | ||||||||||||
Total operating expenses
|
1,492 | 1,124 | 4,095 | 3,428 | ||||||||||||
Loss from operations
|
(1,298 | ) | (949 | ) | (3,753 | ) | (2,195 | ) | ||||||||
Interest and other income
|
16 | 36 | 318 | 87 | ||||||||||||
Net loss
|
(1,282 | ) | 913 | (3,435 | ) | (2,108 | ) | |||||||||
Net loss attributable to the noncontrolling
interest
|
(17 | ) | (50 | ) | (35 | ) | (50 | ) | ||||||||
Net loss attributable to Hoku Scientific,
Inc.
|
$ | (1,265 | ) | $ | (863 | ) | $ | (3,400 | ) | $ | (2,058 | ) | ||||
Basic net loss per share attributable to Hoku
Scientific, Inc.
|
$ | (0.06 | ) | $ | (0.04 | ) | $ | (0.16 | ) | $ | (0.10 | ) | ||||
Diluted net loss per share attributable to Hoku
Scientific, Inc.
|
$ | (0.06 | ) | $ | (0.04 | ) | $ | (0.16 | ) | $ | (0.10 | ) | ||||
Shares used in computing basic net loss per
share
|
21,448,922 | 20,964,304 | 21,062,417 | 20,167,448 | ||||||||||||
Shares used in computing diluted net loss per
share
|
21,448,922 | 20,964,304 | 21,062,417 | 20,167,448 | ||||||||||||
__________
|
||||||||||||||||
(1) Includes stock-based compensation as
follows:
|
||||||||||||||||
Cost of service and license
revenue
|
$ | 1 | $ | — | $ | 8 | $ | 7 | ||||||||
Selling, general and
administrative
|
295 | 217 | 723 | 938 |
See
accompanying notes to consolidated financial statements.
4
HOKU
SCIENTIFIC, INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS
(Unaudited,
in thousands)
Nine Months Ended December 31,
|
||||||||
2009
|
2008
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
loss attributable to Hoku Scientific, Inc.
|
$ | (3,400 | ) | $ | (2,058 | ) | ||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||
Depreciation
and amortization
|
210 | 57 | ||||||
Impairment
of inventory and equipment
|
39 | 3 | ||||||
Gain
on sale of property and equipment
|
- | (550 | ) | |||||
Stock-based
compensation
|
631 | 948 | ||||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
187 | (50 | ) | |||||
Costs
of uncompleted contracts
|
(520 | ) | (423 | ) | ||||
Inventory
|
795 | (3,806 | ) | |||||
Equipment
held for sale
|
- | 26 | ||||||
Other
current assets
|
(292 | ) | 1,046 | |||||
Accounts
payable and accrued operating expenses
|
(723 | ) | (2,667 | ) | ||||
Deferred
revenue
|
(289 | ) | (24 | ) | ||||
Other
current liabilities
|
(252 | ) | (1,216 | ) | ||||
Deposits
– Hoku Solar
|
(158 | ) | 217 | |||||
Net
cash used in operating activities
|
(3,772 | ) | (8,497 | ) | ||||
Cash
flows from investing activities:
|
||||||||
Proceeds
from maturities of short-term investments
|
45,182 | 77,755 | ||||||
Purchases
of short-term investments
|
(45,182 | ) | (75,763 | ) | ||||
Decrease
in restricted cash
|
- | 2,575 | ||||||
Payment
of accounts payable and accrued capital expenditures
|
(52,770 | ) | (97,858 | ) | ||||
Disposition
of property and equipment
|
- | 5,468 | ||||||
Net
cash used in investing activities
|
(52,770 | ) | (87,823 | ) | ||||
Cash
flows from financing activities:
|
||||||||
Exercise
of common stock options
|
22 | 75 | ||||||
Costs
related to Tianwei investment
|
(225 | ) | - | |||||
Proceeds
related to shelf registration stock sales
|
- | 6,728 | ||||||
Costs
related to shelf registration stock sales
|
- | (485 | ) | |||||
Contributions
from noncontrolling interest
|
3,590 | - | ||||||
Deposits
received – Hoku Materials
|
39,000 | 81,500 | ||||||
Net
cash provided by financing activities
|
42,387 | 87,818 | ||||||
Net
decrease in cash and cash equivalents
|
(14,155 | ) | (8,502 | ) | ||||
Cash
and cash equivalents at beginning of period
|
17,383 | 27,768 | ||||||
Cash
and cash equivalents at end of period
|
$ | 3,228 | $ | 19,266 | ||||
Supplemental
disclosure of non-cash activities:
|
||||||||
Acquisition
of property and equipment
|
$ | 59,378 | $ | 13,731 | ||||
Issuance
of warrant and costs related to Tianwei investment
|
14,784 | - |
See
accompanying notes to consolidated financial statements.
5
HOKU
SCIENTIFIC, INC.
NOTES TO
CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(1)
Summary of Significant Accounting Policies and Practices
(a)
Description of Business
Hoku
Scientific, Inc., or the Company, is a materials science company focused on
clean energy technologies. The Company was incorporated in Hawaii in March 2001,
as Pacific Energy Group, Inc. In July 2001, the Company changed its name to Hoku
Scientific, Inc. In December 2004, the Company was reincorporated in
Delaware.
The
Company has historically focused its efforts on the design and development of
fuel cell technologies, including its Hoku membrane electrode assemblies, or
MEAs, and Hoku Membranes. In May 2006, the Company announced its plans to form
an integrated photovoltaic, or PV, module business, and its plans to manufacture
polysilicon, a primary material used in the manufacture of PV modules. In fiscal
2007, the Company reorganized its business into three business units: Hoku
Materials, Hoku Solar and Hoku Fuel Cells. In February and March
2007, the Company incorporated Hoku Materials, Inc. and Hoku Solar, Inc.,
respectively, as wholly-owned subsidiaries to operate its polysilicon and solar
businesses, respectively.
(b)
Basis of Presentation
The
Company has incurred operating losses in recent years and as of December 31,
2009, has a working capital deficiency. The losses, in part, have occurred as
the Company has directed its efforts to focus on the development of its
polysilicon and PV installation businesses. The Company's current operating plan
anticipates receiving cash during the present fiscal year through a combination
of debt financing and polysilicon customer prepayments to enable the continued
construction of the Company’s planned polysilicon production facility in
Pocatello, Idaho, or the Project. There have been delays in securing adequate
financing, and the Company has implemented cost and expense reduction measures
and other programs. In July 2009, the Company began curtailing construction at
the Project.
The
accompanying consolidated financial statements have been prepared assuming that
the Company will continue as a going concern. This basis of accounting
contemplates the recovery of the Company’s assets and the satisfaction of
liabilities in the normal course of business and does not include any
adjustments to reflect the possible future effects on the recoverability and
classification of assets or the amounts and classification of liabilities that
might be necessary should the Company be unable to continue as a going
concern. Refer to Note 12 for further discussion of management’s
plans and efforts related to the Company’s ability to continue as a going
concern.
The
accompanying unaudited consolidated financial statements of the Company have
been prepared in accordance with U.S. generally accepted accounting principles,
or GAAP, for interim financial information and with the instructions to Form
10-Q and Rule 10-01 of Regulation S-X. Accordingly, they do not include all of
the information and accompanying notes required by GAAP for complete financial
statements. In the opinion of management, the consolidated financial statements
reflect normal recurring adjustments necessary for a fair presentation of the
results for the interim periods.
These
statements should be read in conjunction with the audited consolidated financial
statements and related notes included in the Company’s Annual Report on Form
10-K for the year ended March 31, 2009. Operating results for the three and nine
months ended December 31, 2009 are not necessarily indicative of the results
that may be expected for the year ending March 31, 2010.
In
preparing the accompanying unaudited financial statements, the Company’s
management has evaluated subsequent events through February 5, 2010, which is
the date that the financial statements were filed.
(c)
Principles of Consolidation
The
consolidated financial statements include the accounts of the Company, its
wholly-owned subsidiaries, after elimination of significant intercompany amounts
and transactions, and Hoku Solar Power I LLC, a variable interest entity in
which the Company is the primary beneficiary.
6
(d) Use
of Estimates
The
preparation of the Company’s financial statements in conformity with U.S.
generally accepted accounting principles requires the Company’s management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosures of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenue and expenses during
the reporting period. Actual results could differ from those estimates. On an
on-going basis, the Company evaluates its estimates, including those related to
revenue recognition, accounts receivable, the carrying amounts of property,
plant and equipment and inventory, income taxes and the valuation of deferred
tax assets and stock options. These estimates are based on historical facts and
various other assumptions that the Company believes are reasonable.
(e)
Revenue Recognition
Revenue
from polysilicon and PV system installations is recognized when there is
evidence of an arrangement, delivery has occurred or services have been
rendered, the arrangement fee is fixed or determinable, and collectability of
the arrangement fee is reasonably assured. PV system installation contracts may
have several different phases with corresponding progress billings; however,
revenue is recognized when the installation is complete.
The
Company has also provided testing and engineering services to customers pursuant
to milestone-based contracts that are not multi-element arrangements. These
contracts sometimes provided for periodic invoicing upon completion of
contractual milestones. Customer acceptance is usually required prior to
invoicing. The Company recognizes revenue for these arrangements under the
completed contract method. Under the completed-contract method, the Company
defers the contract fulfillment costs and any advance payments received from the
customer and recognizes the costs and revenue in its statement of operations
once the contract is complete and the final customer acceptance, if required,
has been obtained.
Revenue
from the sale of electricity generated from the Company’s PV systems is based on
kilowatt usage and is recognized in accordance with its power purchase
agreements, or PPAs, with the Hawaii State Department of
Transportation.
The
Company charges the appropriate Hawaii general excise tax to its customers. The
taxes collected from sales are excluded from revenues and recorded as a
payable.
(f)
Cost of Uncompleted Contracts
Cost of
uncompleted contracts represents services performed and/or materials used
towards completing a customer contract. Based on the Company’s revenue
recognition policy, these services and/or materials cannot be recognized as
contract costs, and are deferred until the related revenue can be recognized. As
of December 31 and March 31, 2009, cost of uncompleted contracts was $628,000
and $108,000, respectively, related to PV system installation
contracts.
(g)
Guarantees and Indemnifications
The
Company has entered into PV system installation contracts which warrant the
installation against defects in workmanship, generally for a period of one year
from the date of installation. There were no accruals for or expenses
related to the warranties for any period presented.
The
Company, as permitted under Delaware law and in accordance with its Bylaws,
indemnifies its officers and directors for certain events or occurrences,
subject to certain limits, while the officer or director is or was serving at
the Company’s request in that capacity. The term of the indemnification period
is equal to the officer’s or director’s lifetime. The Company has also entered
into additional indemnification agreements with its officers and directors in
connection with its initial public offering. The maximum amount of potential
future indemnification is unlimited; however, the Company has obtained director
and officer insurance that limits its exposure and may enable it to recover a
portion of any future amounts paid. The Company believes the fair value for
these indemnification obligations is minimal. Accordingly, the Company has not
recognized any liabilities relating to these obligations as of December 31, 2009
and March 31, 2009.
In
connection with the closing of the Tianwei investment transaction, the Company
increased the size of its board of directors to consist of seven directors, four
of whom have been designated by Tianwei, or the Tianwei Nominees. The Company
has entered into indemnification agreements with each of the four Tianwei
Nominees, similar to those agreements entered into at the time of the Company’s
initial public offering.
The
Company has entered into customer contracts that contain indemnification
provisions. In these provisions, the Company typically agrees to indemnify the
customer against certain types of third-party claims. The Company would accrue
for known indemnification issues when a loss is probable and could be reasonably
estimated. The Company also would accrue for estimated incurred but unidentified
indemnification issues based on historical activity. There were no accruals for
or expenses related to indemnification issues for any period
presented.
7
(2)
Agreement with Tianwei and Cost of Financing
In
September 2009, the Company entered into a definitive agreement providing for a
majority investment in the Company by Tianwei, and debt financing by Tianwei
through China Construction Bank as agent, for the construction and development
of the Project. In December 2009, the investment transaction was
completed and the Company issued to Tianwei 33,379,287 newly-issued shares of
its common stock, representing approximately 60% of the Company's fully-diluted
outstanding shares. Tianwei is restricted from transferring directly or
indirectly 23,365,501, or 70%, of the newly-issued shares to any third party
until the first anniversary of the closing date of the agreement. The
Company also granted to Tianwei a warrant to purchase an additional 10 million
shares of the Company’s common stock. The terms of the warrant include: (i) a
per share exercise price equal to $2.52; (ii) an exercise period of seven years;
and (iii) provision for a cashless, net-issue exercise.
The
existing polysilicon supply agreements with Tianwei were amended such that $50
million of an aggregate of $79 million in secured prepayments previously paid by
Tianwei to the Company was converted into the 33,379,287 newly-issued
shares of the Company’s common stock. The amended supply agreements
will also provide for a reduced price at which Tianwei purchases polysilicon by
approximately 11% in each year of the ten year agreement. Tianwei is also
obligated to loan the Company $50 million through China Construction Bank, as
agent, payable in two tranches. In January 2010, the Company received the first
tranche of $20 million and expects to receive the second tranche of $30 million
in February 2010. Pursuant to the loan agreement, the Company has
pledged a security interest in all of its assets to Tianwei. Tianwei has
also agreed to use its reasonable best efforts to assist the Company
in obtaining additional financing that may be required by the Company to
construct and operate the Project.
The $50
million in debt, plus $55 million in expected additional prepayments from its
existing customers, will be used to pay current liabilities and complete
construction of the Project to the point where the Company can commence initial
shipments to customers. Until such time, the Company intends to delay
seeking the additional financing of $71 million which is estimated to be the
amount necessary to complete the construction of the Project. On the basis of
these funding sources, the Company expects to complete its reactor demonstration
in the fourth quarter of fiscal 2010 and begin polysilicon production in the
first quarter of fiscal 2011. However, if there is a delay in receiving the
second tranche of $30 million in debt from the Tianwei transaction, or the
Company does not receive anticipated prepayments from its other polysilicon
supply agreements, the Company may need to curtail Project
construction.
The
accounting of the warrant and debt was based on their relative fair values and
calculated to be $12.9 million and $37.1 million, respectively, in proportion to
the $50 million in loan proceeds. The fair value of the warrant
was calculated using the Black-Scholes option pricing model and the fair value
of the debt was based on the present value of cash flows, discounted at a 7%
interest rate.
The
Company has recorded approximately $789,000 of transactions costs and
$12.9 million related fair value of the warrants as deferred costs of
debt financing totaling $13.7 million as of December 31, 2009. Upon funding of
the debt, the deferred costs of debt financing will be reclassified as a
discount on the debt and amortized to interest expense over the two year term of
the debt, using the effective interest method.
(3)
Fair Value of Assets and Liabilities
FASB ASC
820-10-50, previously referenced as Statement of Financial Accounting Standards
No. 157, Fair Value
Measurements, or SFAS 157, clarifies that fair value is an exit price,
representing the amount that would be received to sell an asset or paid to
transfer a liability in an orderly transaction between market
participants. As such, fair value is a market-based measurement that
should be determined based on assumptions that market participants would use in
pricing an asset or liability. As a basis for considering such
assumptions, FASB ASC 820-10-50 establishes a three-tier fair value hierarchy,
which prioritizes the inputs used in measuring fair value as
follows:
Level 1 –
|
Observable
inputs such as quoted prices in active markets;
|
Level 2 –
|
Inputs,
other than the quoted prices in active markets, that are observable either
directly or indirectly; and
|
Level 3 –
|
Unobservable
inputs in which there is little or no market data, which require the
reporting entity to develop its own
assumption.
|
As
of December 31, 2009, the Company held the following assets that are required to
be measured at fair value on a recurring basis (in thousands):
Fair Value Measurements as of December 31, 2009
|
||||||||||||||||
Total
|
Level 1
|
Level 2
|
Level 3
|
|||||||||||||
Cash
equivalents
|
$ | 2,747 | $ | 2,747 | $ | — | $ | — | ||||||||
Total
assets measured at fair value
|
$ | 2,747 | $ | 2,747 | $ | — | $ | — |
(4)
Property, Plant and Equipment
Property,
plant and equipment consisted of the following:
8
December 31,
2009
|
March 31,
2009
|
|||||||
(in
thousands)
|
||||||||
Construction
in progress- Idaho plant and equipment
|
$ | 273,831 | $ | 199,338 | ||||
Photovoltaic
systems- Hoku Solar Power I, LLC
|
5,559 | 5,096 | ||||||
Production
equipment
|
108 | 108 | ||||||
Office
equipment and furniture
|
109 | 115 | ||||||
Automobile
|
98 | 98 | ||||||
279,705 | 204,755 | |||||||
Less
accumulated depreciation and amortization
|
(435 | ) | (230 | ) | ||||
Property,
plant and equipment, net
|
$ | 279,270 | $ | 204,525 |
In
assessing the recoverability of its long-lived assets, the Company compared the
carrying value to the undiscounted future cash flows the assets are expected to
generate. During the nine months ended December 31, 2009, the Company had no
write-down of its plant assets.
(5)
Accounts Payable and Accrued Expenses
Accounts
payable and accrued expenses were comprised of the following (in thousands of
dollars):
December 31,
2009
|
March 31,
2009
|
|||||||
(in
thousands)
|
||||||||
Capital
expenditures
|
$ | 59,378 | $ | 37,282 | ||||
Operating
expenditures
|
2,086 | 909 | ||||||
Total
accounts payable and accrued expenses
|
$ | 61,464 | $ | 38,191 |
The
capital expenditures pertain primarily to the Project plant and equipment
additions that the Company is currently constructing in Pocatello, Idaho. Over
the next twelve months, the Company may have insufficient cash to meet all of
its obligations as they come due. To help address its obligations, in September
2009, the Company entered into a definitive agreement providing for a majority
investment in the Company by Tianwei New Energy Holdings Co., Ltd., or Tianwei,
and debt financing by Tianwei through China Construction Bank, as agent, for the
construction and development of the Company’s Project. In December 2009, the
investment transaction was completed and Tianwei is loaning the Company $50
million through China Construction Bank, as agent, payable in two tranches. In
January 2010, the Company received the first tranche of $20 million and expects
to receive the second tranche of $30 million in February
2010. Pursuant to the loan agreement, the Company has pledged a
security interest in all of its assets to Tianwei. Tianwei has also agreed
to use its reasonable best efforts to assist Hoku in obtaining additional
financing that may be required by the Company to construct and operate the
Project.
Furthermore,
the Company has modified payment terms in purchase orders with more than sixty
of its vendors to structure payment plans for amounts past due and to be
invoiced in the future. In the event the Company is unable to meet its
obligations under payment plans and other agreements, the Company may request
that its vendors forebear from enforcing one or more of their rights under their
respective agreements. There are no assurances that any of the Company’s vendors
will agree to forebear or otherwise make any concessions under their respective
agreements. If any of the Company’s vendors seek to enforce the Company’s
obligations under these agreements that it is unable to perform, which could
include asserting and/or foreclosing on materialmen’s and laborer’s liens on the
Project, or taking other legal action, it could materially harm the Company’s
business, financial condition and results of operations and the Company may be
forced to delay, alter or abandon its planned business operations, which could
have a material adverse effect on the Company’s ability to continue as a going
concern and the recoverability of its long-lived assets.
(6)
Long-term Debt (Deposits- Hoku Materials)
The
Company has entered into various supply agreements with customers for the sale
and delivery of polysilicon over specified periods of time. Under the
supply agreements, customers are generally required to pay cash deposits to the
Company as a prepayment for future product deliveries. Generally,
these payments are for deliveries of polysilicon which are expected to occur
subsequent to the initial year of the agreements. At such time as the
Company begins to deliver polysilicon pursuant to each customer’s respective
contract and the Company is assured that the polysilicon has been accepted under
the terms of the respective contract, the related deposits will be reclassified
to deferred revenue.
9
As of
December 31 and March 31, 2009, the Company had $123 million and $134 million,
respectively, related to prepayments received under its various polysilicon
supply agreements. In December 2009, the investment transaction with
Tianwei was completed and the existing polysilicon supply agreements were
amended such that $50 million of an aggregate of $79 million in secured
prepayments previously paid by Tianwei to the Company was
converted into shares of the Company’s common stock. The
prepaid amounts from each customer that are expected to be applied to future
product deliveries after December 31, 2010 have been reflected in the
consolidated balance sheets as Long-term debt (Deposits- Hoku Materials) in the
consolidated balance sheets.
Under the
terms of the various long-term polysilicon supply agreements with its customers,
the Company is generally required to refund these prepayments, in each case, if
the customer terminates the respective supply agreement under certain
circumstances, which generally include, but are not limited to, bankruptcy,
failure to commence shipments of polysilicon by specified dates, repeated
failure to deliver a specified quality of product, and/or failure to meet other
milestones. The Company has granted security interests to each of its
customers in all of the Company’s tangible and intangible assets related to its
polysilicon business to serve as collateral for the Company’s obligation to
repay the remaining amount of each of its customer’s respective prepayments made
as of the date of any termination that has not been applied to the purchase
price of polysilicon previously delivered under the respective
contract.
The
following is a summary of prepayments received as of December 31,
2009:
Prepayment
|
||||
Customer
|
(in thousands)
|
|||
Wuxi
Suntech Power Co., Ltd.
|
$ | 2,000 | ||
Solarfun
Power Hong Kong Ltd.
|
45,000 | |||
Tianwei
New Energy (Chengdu) Wafer Co., Ltd.
|
29,000 | |||
Jianxi
Jinko Solar Co., Ltd.
|
20,000 | |||
Shanghai
Alex New Energy Co., Ltd.
|
20,000 | |||
Wealthy
Rise International, Ltd. (Solargiga)
|
7,000 | |||
$ | 123,000 |
In
December 2009, when the investment transaction with Tianwei was completed and
Tianwei became a majority shareholder of the Company, an amendment to the
Company’s existing supply agreement with Wuxi Suntech Power Co., Ltd., or
Suntech, for the sale and delivery of polysilicon to Suntech over a ten-year
period became effective. As part of the amendment, the Company was to
have completed a reactor demonstration by December 31, 2009.
As of
December 31, 2009, the Company had not completed the reactor
demonstration, and as a result Suntech could assert that the Company was in
breach, and seek to terminate the agreement. If the agreement is
terminated the Company’s business will be materially harmed. In
addition, the Company will be required to return the $2 million in prepayments
which it received from Suntech and the Company will need to secure an additional
$32 million in funds in order to finance the construction of the
Project. Suntech has not been given the Company any indication that
it intends to terminate the contract and the Company believes Suntech will work
with the Company to amend the contract.
Based on
existing terms of the various long-term polysilicon supply agreements as of
December 31, 2009, the $123 million of customer prepayments would be credited
against future product deliveries as indicated in the following
table. It should be noted that all of the customer deposits from
Suntech is applied to the year ended December 31, 2010, as Suntech could
terminate its contract, which would require the Company to return the $2 million
to Suntech.
|
|
Application of
|
|
|
|
|
Customer
Deposits
|
|
|
December 31 Ending
|
|
(in thousands)
|
|
|
2010
|
$
|
14,641
|
||
2011
|
22,346
|
|||
2012
|
17,806
|
|||
2013
|
15,256
|
|||
2014
|
14,356
|
|||
Thereafter
|
38,595
|
|||
$
|
123,000
|
10
(7)
Total Equity
Changes
in total equity for the nine months ended December 31, 2009 were as follows (in
thousands):
Hoku
Scientific, Inc. Shareholders’ Equity
|
||||||||||||||||||||||||||||
Additional
|
||||||||||||||||||||||||||||
Common
|
Paid-In
|
Accumulated
|
Noncontrolling
|
Total
|
Comprehensive
|
|||||||||||||||||||||||
Stock
|
Warrant
|
Capital
|
Deficit
|
Interest
|
Equity
|
Loss
|
||||||||||||||||||||||
Balance as of March 31,
2009
|
21
|
-
|
65,780
|
(15,169
|
)
|
-
|
50,632
|
-
|
||||||||||||||||||||
Contributions
from Noncontrolling interest
|
3,625
|
3,625
|
||||||||||||||||||||||||||
Net
loss
|
(3,400
|
)
|
(35
|
)
|
(3,435
|
)
|
(3,435
|
)
|
||||||||||||||||||||
Exercise
of common stock options
|
22
|
22
|
||||||||||||||||||||||||||
Stock-based
compensation
|
325
|
325
|
||||||||||||||||||||||||||
Grants
of stock awards
|
395
|
395
|
||||||||||||||||||||||||||
Issuance
of shares- Tianwei
|
33
|
49,967
|
50,000
|
|||||||||||||||||||||||||
Costs
related to Tianwei investment
|
(1,336
|
)
|
(1,336
|
)
|
||||||||||||||||||||||||
Issuance
of warrant to Tianwei
|
12,884
|
12,884
|
||||||||||||||||||||||||||
Balance
as of December 31, 2009
|
54
|
12,884
|
115,153
|
(18,569
|
)
|
3,590
|
113,112
|
(3,435
|
)
|
(8)
Income Taxes
Income
taxes are accounted for under the asset and liability method which establishes
financial accounting and reporting standards for income taxes. The Company
recognizes federal and state current tax liabilities based on its estimate of
taxes payable to or refundable by each tax jurisdiction in the current fiscal
year.
Deferred
tax assets and liabilities are established for the temporary differences between
the financial reporting bases and the tax bases of the Company’s assets and
liabilities at the tax rates the Company expects to be in effect when these
deferred tax assets or liabilities are anticipated to be recovered or settled.
The Company’s ultimate realization of deferred tax assets is dependent upon the
generation of future taxable income during periods in which those temporary
differences become deductible. The Company also records a valuation allowance to
reduce deferred tax assets by the amount of any tax benefits that, based on
available evidence and judgment, are not expected to be realized. Based on the
best available objective evidence, it is more likely than not that the Company’s
net deferred tax assets will not be realized. Accordingly, the Company continues
to provide a valuation allowance against its net deferred tax assets as of
December 31, 2009.
(9)
Net Loss per Share
Basic net
loss per share is computed by dividing net loss by the weighted average number
of shares of common stock outstanding and not subject to repurchase during the
period. Diluted net loss per share is computed by dividing net loss by the sum
of the weighted average number of shares of common stock outstanding, and the
dilutive potential common equivalent shares outstanding during the period.
Dilutive potential common equivalent shares consist of dilutive shares of common
stock subject to repurchase and dilutive shares of common stock issuable upon
the exercise of outstanding options to purchase common stock, computed using the
treasury stock method.
The
following table sets forth the computation of basic and diluted net loss per
share, including the reconciliation of the denominator used in the
computation of basic and diluted net loss per share:
11
Three Months Ended
December 31,
|
Nine Months Ended
December 31,
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
(in
thousands, except share and per share data)
|
||||||||||||||||
Numerator:
|
||||||||||||||||
Net
loss attributable to Hoku Scientific, Inc.
|
$ | (1,265 | ) | $ | (863 | ) | $ | (3,400 | ) | $ | (2,058 | ) | ||||
Denominator:
|
||||||||||||||||
Weighted
average shares of common stock (basic)
|
21,448,922 | 20,964,034 | 21,062,417 | 20,167,448 | ||||||||||||
Effect
of Dilutive Securities
|
||||||||||||||||
Add:
|
||||||||||||||||
Weighted
average stock options
|
— | — | — | — | ||||||||||||
Weighted
average shares of common stock (diluted)
|
21,448,922 | 20,964,034 | 21,062,417 | 20,167,448 | ||||||||||||
Basic
net loss per share attributable to Hoku Scientific, Inc.
|
$ | (0.06 | ) | $ | (0.04 | ) | $ | (0.16 | ) | $ | (0.10 | ) | ||||
Diluted
net loss per share attributable to Hoku Scientific Inc.
|
$ | (0.06 | ) | $ | (0.04 | ) | $ | (0.16 | ) | $ | (0.10 | ) |
The basic
weighted average shares of common stock for the three and nine months ended
December 31, 2009 and 2008 excludes unvested restricted shares of common
stock.
During
the three and nine months ended December 31, 2009, potential dilutive securities
included options to purchase 140,952 and 120,080 shares of common stock,
respectively, at prices ranging from $0.075 to $0.52 per share in both periods.
During the three and nine months ended December 31, 2009, all potential common
equivalent shares were anti-dilutive and were excluded in computing diluted net
loss per share, due to the Company’s net loss for the periods. During the three
and nine months ended December 31, 2008, potential dilutive securities included
options to purchase 137,200 and 267,708 shares of common stock, respectively, at
prices ranging from $0.075 to $2.60 and from $0.075 to $4.50 per share
respectively. During the three and nine months ended December 31,
2008, all potential common equivalent shares were anti-dilutive and were
excluded in computing diluted net loss per share, due to the Company’s net loss
for the periods.
(10) Commitments,
Contingencies and Purchase Obligations
Stone & Webster, Inc. In
August 2007, the Company entered into an Engineering, Procurement and
Construction Management Contract with Stone & Webster, Inc., or S&W, a
subsidiary of The Shaw Group Inc., for engineering, procurement, and
construction management services for the construction of the Project, which was
amended in October 2007 by Change Order No. 1, again in April 2008 by Change
Order No. 2, and again by Change Order No. 3 in February 2009, which are
collectively the S&W Engineering Agreement. Under the S&W Engineering
Agreement, S&W is to provide all engineering and procurement services
necessary to complete the design and planning for construction of the Project.
S&W is to be paid on a time and materials basis plus a fee for its services
and incentives if certain schedule and cost targets are met. The target cost for
the services to be provided under the S&W Engineering Agreement is $50
million; however the Company believes that it could incur up to $53 million in
costs.
Through
December 31, 2009, the Company had made payments to S&W of $45.7 million and
had $1.8 million of payables outstanding as of December 31, 2009.
JH Kelly LLC. In August 2007,
the Company entered into a Cost Plus Incentive Contract with JH Kelly LLC, or JH
Kelly, for construction services for the construction of the Project, which was
amended in October 2007, by Change Order No. 1, again in April 2008 by Change
Order No. 2, again in March 2009 by Change Order No. 3, and again in September
2009 by Change Order No. 4, which are collectively the JH Kelly Construction
Agreement. Under the JH Kelly Construction Agreement, JH Kelly agreed to provide
the construction services as the Company’s general contractor for the
construction of the Project with a production capacity of 4,000 metric tons per
year. The target cost for the services to be provided under the JH Kelly
Construction Agreement is $145 million, including up to $5.0 million of
incentives that may be payable.
Through
December 31, 2009, the Company had made payments to JH Kelly of $59.1 million
and had $10.0 million of payables outstanding as of December 31,
2009.
Dynamic Engineering Inc. In
October 2007, the Company entered into an agreement with Dynamic Engineering
Inc., or Dynamic, for design and engineering services, and a related technology
license, for the process to produce and purify trichlorosilane, or TCS. Under
the agreement with Dynamic, or the Dynamic Agreement, Dynamic is obligated to
design and engineer a TCS production facility that is capable of producing
20,000 metric tons of TCS for the Project. The Dynamic process is to be
integrated by S&W into the overall Project, and will be constructed by JH
Kelly. Under the Dynamic Agreement, Dynamic's engineering services are provided
and invoiced on a time and materials basis, and the license fee will be
calculated upon the successful completion of the TCS production facility, and
demonstration of certain TCS purity and production efficiency capabilities. The
maximum aggregate amount that the Company may pay Dynamic for the engineering
services and the technology license is $12.5 million, which includes an
incentive for Dynamic to complete the engineering services under budget. Dynamic
is guaranteeing the quantity and purity of the TCS to be produced at the
Project, and has agreed to indemnify the Company for any third-party claims of
intellectual property infringement.
12
Through
December 31, 2009, the Company had made payments to Dynamic of $5.6 million and
had $2.8 million of payables outstanding as of December 31, 2009.
GEC Graeber Engineering Consultants
GmbH and MSA Apparatus Construction for Chemical Equipment
Ltd. The Company entered into a contract with GEC
Graeber Engineering Consultants GmbH, or GEC, and MSA Apparatus Construction for
Chemical Equipment Ltd., or MSA, for the purchase and sale of 16 hydrogen
reduction reactors and hydrogenation reactors for the production of polysilicon,
and related engineering and installation services. Under the contract, the
Company will pay up to a total of 20.9 million Euros for the reactors. The
reactors are designed and engineered to produce approximately 2,000 metric tons
of polysilicon per year. The term of the contract extends until the end of the
first month after the expiration date of the warranty period, but may be
terminated earlier under certain circumstances.
In
January 2009, the Company received the first shipment of six hydrogen reduction
reactors, three hydrogenation reactors, and related equipment from GEC and MSA,
at the Project, and all of these polysilicon reactors have been assembled and
put into place on the Project’s production floor. The reactors are the first
units to arrive in Pocatello out of a planned total order of 28. The next set of
10 polysilicon reactors and related equipment has been manufactured, and will be
shipped to the Project after the Company’s payment of an additional 3.2 million
Euros or $4.6 million (based on the Euro/U.S. dollar exchange rate, which was
$1.4332/Euro as of December 31, 2009). The Company is in discussions with GEC to
purchase additional 12 reactors necessary for its planned annual capacity of
4,000 metric tons of polysilicon. The cost of these additional
reactors is not expected to be greater than 20.9 million Euros, or $30.0 million
(based on the Euro/U.S. dollar exchange rate, which was $1.4332/Euro as of
December 31, 2009).
Through
December 31, 2009, the Company had paid GEC and MSA an aggregate amount of 15.2
million Euros or $22.3 million and had 2.4 million Euros or $3.5 million of
payables outstanding as of December 31, 2009.
Idaho Power
Company. The Company entered into an agreement with Idaho
Power Company, or Idaho Power, to complete the construction of the electric
substation to provide power for the Project, or the Idaho Power Agreement. The
Company is obligated to pay Idaho Power an aggregate of $16.5 million for the
completion of the substation and associated facilities. The Amended
Idaho Power Agreement also provides that upon completion of construction, there
will be a true-up of actual construction costs, so that either the Company will
be refunded any monies it has paid to Idaho Power over and above the actual
costs of construction, or the Company will pay Idaho Power any additional
construction costs beyond the original amount. As of December 31, 2009, the
Company incurred a $524,000 true-up of actual construction costs.
Through
December 31, 2009, the Company had paid Idaho Power Company an aggregate amount
of $17.5 million, which includes $917,000 paid to Idaho Power pursuant to a
separate engineering services agreement, and had $524,000 of payables
outstanding as of December 31, 2009. The Company does not anticipate any
additional cost adjustments, which results in the aggregate cost of $18.0
million to complete the substation and associated transmission facilities,
including the engineering services agreement.
The
Company also entered into an Electric Service Agreement with Idaho Power, or the
ESA, for the supply of electric power and energy to the Company for use in the
Project, subject to the approval of the Idaho Public Utilities Commission, or
the PUC. The term of the ESA is four and a half years, beginning in June 2009
and expiring in December 2013. During the term of the ESA, Idaho Power agrees to
make up to 82,000 kilowatts of power available to the Company at certain fixed
rates, which are subject to change only by action of the PUC. After the initial
term of the ESA expires, either the Company or Idaho Power may terminate the ESA
without prejudice. If neither party chooses to terminate the ESA, then Idaho
Power will continue to provide electric service to us at the same fixed
rates.
AEG Power Solutions USA Inc.
(formerly known as Saft Power
Systems USA, Inc.). In March 2008, the Company entered into an agreement
with AEG Power Solutions USA Inc., or AEG, formerly known as Saft Power Systems
USA, Inc., which was subsequently amended in May 2009, or the AEG Agreement, for
the purchase and sale of thyroboxes, earth fault detection systems, and related
technical documentation and services, or the Deliverables. Under the AEG
Agreement, AEG was obligated to manufacture and deliver the Deliverables, which
are used as the power supplies for the polysilicon deposition reactors to be
used in the Project. The total fees payable to AEG for all
Deliverables under the AEG Agreement is approximately $13 million.
Through
December 31, 2009, the Company had made payments to AEG of $6.2 million and had
$2.2 million of payables outstanding as of December 31, 2009.
Polymet Alloys, Inc. In
November 2008, the Company entered into an agreement with Polymet Alloys, Inc.,
or Polymet, for the supply of silicon metal to the Company for use in the
Project. In May 2009, the Company entered into an amended and restated supply
agreement with Polymet, or the Amended Polymet Agreement. The term of
the Amended Polymet Agreement is three years, commencing in 2010. Each year
during the term of the Amended Polymet Agreement, Polymet has agreed to sell to
the Company, and the Company has agreed to purchase from Polymet, no less than
65% of the Company’s annual silicon metal requirement. Pricing is to
be negotiated for each year of the Amended Polymet Agreement; however, if the
parties are unable to agree on pricing for any year, or the Company has agreed
to purchase less than the amount specified in the Amended Polymet Agreement,
Polymet has a right of first refusal to match the terms offered by any
third-party supplier from whom the Company may seek to purchase silicon
metal. Either party may also terminate the Amended Polymet Agreement
under certain circumstances, including a material breach by the other party that
has not been cured within a specified cure period, or the other party’s
voluntary or involuntary liquidation. As of December 31, 2009, the Company had
not made any payments to Polymet.
13
PVA Tepla Danmark. In April
2008, the Company entered into an agreement with PVA Tepla Danmark, or PVA, for
the purchase and sale of slim rod pullers and float zone crystal pullers. Under
the agreement, PVA is obligated to manufacture and deliver the slim rod pullers
and float zone crystal pullers for the Project. Slim rod pullers are used to
make thin rods of polysilicon that are then transferred into polysilicon
deposition reactors to be grown through a chemical vapor deposition process into
polysilicon rods for commercial sale to the Company’s end customers. The float
zone crystal pullers convert the slim rods into single crystal silicon for use
in testing the quality and purity of the polysilicon. The total amount payable
to PVA is approximately $6 million, which is payable in four installments, the
first of which was made in August 2008. Either party may terminate the agreement
if the other party is in material breach of the agreement and has not cured such
breach within 180 days after receipt of written notice of the breach, or if the
other party is bankrupt, insolvent, or unable to pay its debts.
Through
December 31, 2009, the Company had paid PVA an aggregate amount of $1.9 million
and had $3.9 million of payables outstanding as of December 31,
2009.
BHS Acquisitions, LLC. In
November 2008, the Company entered into an agreement with BHS Acquisitions, LLC,
or BHS, for the supply of hydrochloric acid, or HCl, to the Company for use in
the Project. The term of the agreement is eight years beginning on the date on
which the first shipment of product is delivered. Each year during the term of
the agreement, BHS has agreed to sell to the Company, and the Company has agreed
to purchase from BHS, specified volumes of HCl that meet certain purity
specifications. The volume is fixed during each of the eight years. Pricing is
fixed for the first twelve months of shipments, which are scheduled to begin
within four months after the Company provides written notice to BHS, and the
aggregate net value of the HCl to be purchased by the Company under the
agreement in the first twelve months is approximately $2.4 million. Pricing is
to be renegotiated for each of the remaining years of the agreement; however, if
the parties are unable to agree on pricing for any future year, then either
party may terminate the agreement without liability to the other party. Either
party may also terminate the agreement under certain circumstances, including a
material breach by the other party that has not been cured within a specified
cure period, or the other party’s voluntary or involuntary liquidation. As of
December 31, 2009, the Company had not provided notice to BHS to commence
shipments, and had not made any payments to BHS.
As of
January 31, 2010, ten of the Company’s vendors had recorded mechanics
lien claims on the Company’s real property and improvements in Pocatello, Idaho.
The lien claims relate to an aggregate amount of approximately $20.9 million
that vendors claim are owed for labor, materials, equipment and/or services used
in the construction of the Project.
(11)
Operating Segments
Operating
segments are components of an enterprise for which discrete financial
information is available that is evaluated regularly by the chief operating
decision maker, or decision-making group, in deciding how to allocate resources
and in assessing performance. The Company’s chief operating decision-making
group is made up of the Chief Executive Officer, Chief Financial Officer, Chief
Technology Officer and Chief Operating Officer. The chief operating
decision-making group manages the profitability, cash flows, and assets of each
segment’s various product or service lines and businesses. The Company has three
operating business units in two industries: Fuel Cell and Solar. The Fuel Cell
industry is comprised of the fuel cell segment. The Solar industry is comprised
of the PV module installation business unit (Hoku Solar) and polysilicon
production business unit (Hoku Materials). A description of the products for
each business unit is described in Note 1, “Summary of Significant Accounting
Policies and Practices” above.
Three Months Ended
December 31,
|
Nine Months Ended
December 31,
|
|||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Revenue (in thousands):
|
(amounts in thousands)
|
|||||||||||||||
Hoku
Fuel Cells
|
$ | — | $ | — | $ | — | $ | — | ||||||||
Hoku
Solar
|
259 | 767 | 1,831 | 4,845 | ||||||||||||
Hoku
Materials
|
— | — | — | — | ||||||||||||
Total
consolidated revenue
|
$ | 259 | $ | 767 | $ | 1,831 | $ | 4,845 |
|
Three Months Ended
December 31,
|
Nine Months Ended
December 31,
|
||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Income
(loss) from operations (in thousands):
|
||||||||||||||||
Hoku
Fuel Cells
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
(19
|
)
|
|||||||
Hoku
Solar
|
(473
|
)
|
(347
|
)
|
(1,383
|
)
|
(252
|
)
|
||||||||
Hoku
Materials
|
(825
|
)
|
(602
|
)
|
(2,370
|
)
|
(1,924
|
)
|
||||||||
Total
consolidated loss from operations
|
$
|
(1,298
|
)
|
$
|
(949
|
)
|
$
|
(3,753
|
)
|
$
|
(2,195
|
)
|
14
The
reconciliation of segment operating results to the Company’s consolidated totals
was as follows (in thousands):
|
Three Months Ended
December 31,
|
Nine Months Ended
December 31,
|
||||||||||||||
2009
|
2008
|
2009
|
2008
|
|||||||||||||
Consolidated
loss from operations
|
$
|
(1,298
|
)
|
$
|
(949
|
)
|
$
|
(3,753
|
)
|
$
|
(2,195
|
)
|
||||
Interest
and other income (loss)
|
16
|
36
|
318
|
87
|
||||||||||||
Net
loss attributable to noncontrolling interest
|
(17
|
)
|
(50
|
)
|
(35
|
)
|
(50
|
)
|
||||||||
Net
loss attributable to Hoku Scientific, Inc.
|
$
|
(1,265
|
)
|
$
|
(863
|
)
|
$
|
(3,400
|
)
|
$
|
(2,058
|
)
|
The
Company allocates its assets to its business units based on the primary business
units benefiting from the assets.
December 31, 2009
|
March 31, 2009
|
|||||||
(amounts
in thousands)
|
||||||||
Identifiable
assets:
|
||||||||
Hoku
Solar
|
$ | 6,802 | $ | 9,738 | ||||
Hoku
Materials
|
274,620 | 199,473 | ||||||
Unallocated
assets
|
16,843 | 15,000 | ||||||
Total
assets
|
$ | 298,265 | $ | 224,211 |
(12)
Going Concern
The
Company has incurred significant net losses since inception and has relied on
its ability to fund its operations principally through both registered and
unregistered offerings of its securities and prepayments on its long-term
polysilicon contracts. Even if the Company is successful in securing additional
long-term polysilicon contracts that could provide additional prepayments, and
its existing customers fulfill their obligations to make additional prepayments
when due (of which there can be no assurances), the Company will still need to
seek additional financing to complete construction of the Project. As
of December 31, 2009, the Company had cash and cash equivalents on hand of $3.2
million and current liabilities of $76.8 million. Consequently, there is
substantial doubt that the Company will have sufficient cash to meet all of its
obligations as they come due. The Company does not expect to generate
significant revenue until it successfully commences the manufacture and shipment
of polysilicon and begins meeting the obligations under the Company’s supply
contracts. If the Company is unable to secure additional long-term supply
contracts and prepayments, assuming the cost to construct and equip the Project
does not exceed $390 million and that all of the Company’s existing customers
make their prepayments when due, the amount the Company will still need to raise
is as much as $71 million. If the Company is unable to secure
additional long-term supply contracts and prepayments, if for any reason (e.g.
contract amendment, termination, breach, etc.) one or more of the Company’s
polysilicon supply customers do not pay the full amount of the prepayments to
which they are presently committed and/or if the actual cost to complete the
Project is more than $390 million, the amount the Company will need to raise
could exceed $71 million.
The
Company’s ability to continue as a going concern depends on its ability to raise
debt or equity financing, increase revenues and reduce expenses. The Company has
already modified payment terms in purchase orders with more than sixty of its
vendors to structure payment plans for amounts past due and to be invoiced in
the future. The Company’s management continues to evaluate a variety of
alternatives to raise capital and manage the Company’s
liquidity. These alternatives include, without
limitation:
|
·
|
debt
financing, including financing that is guaranteed by a private third
party;
|
|
·
|
one
or more equity offerings, including an offering of stock the Company
previously registered with the Securities and Exchange Commission on Form
S-3;
|
|
·
|
prepayments
for product to be delivered under new long-term polysilicon supply
contracts;
|
|
·
|
government
funding from grants and/or loan
guarantees; and/or
|
15
|
·
|
further
extending the Project construction schedule and payment plans with
vendors
|
|
·
|
requesting
support from Tianwei in obtaining additional financing as agreed to in
the investment transaction which was completed in December
2009
|
There are
no assurances that the Company will be successful in executing any of the
foregoing options. If the Company is unable to raise capital and manage its
liquidity, there is substantial doubt that the Company will be able to continue
as a going concern. The inability to continue as a going concern could result in
an orderly wind-down of the Company or other potential forms of
restructuring.
16
Item
2.
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
Forward-Looking
Statements
This
Quarterly Report on Form 10-Q contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended, that are based on our
management’s beliefs and assumptions and on information currently available to
our management. Forward-looking statements include all statements other than
statements of historical fact contained in this Quarterly Report on Form
10-Q. In some cases, you can identify forward-looking statements by
terms such as “anticipate,” “believe,” “can,” “continue,” “could,” “estimate,”
“expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,”
“will,” “would” and similar expressions intended to identify forward-looking
statements. These statements involve known and unknown risks, uncertainties and
other factors that may cause our actual results, performance, time frames or
achievements to be materially different from any future results, performance,
time frames or achievements expressed or implied by the forward-looking
statements. We discuss many of these risks, uncertainties and other factors in
this Quarterly Report on Form 10-Q in greater detail in Part II, Item IA. “Risk
Factors.” Given these risks, uncertainties and other factors, you should not
place undue reliance on these forward-looking statements. Also, these
forward-looking statements represent our estimates and assumptions only as of
the date hereof. We hereby qualify all of our forward-looking statements by
these cautionary statements. Except as required by law, we assume no obligation
to update these forward-looking statements publicly, or to update the reasons
actual results could differ materially from those anticipated in these
forward-looking statements, even if new information becomes available in the
future.
The
following discussion should be read in conjunction with our financial statements
and the related notes contained elsewhere in this Quarterly Report on Form 10-Q
and with our financial statements and notes thereto for the fiscal year ended
March 31, 2009, contained in our Annual Report on Form 10-K, filed with the
Securities and Exchange Commission on June 15, 2009.
Overview
We are a
materials science company focused on clean energy technologies. We were
incorporated in Hawaii in March 2001, as Pacific Energy Group, Inc. In July
2001, we changed our name to Hoku Scientific, Inc. In December 2004, we were
reincorporated in Delaware.
Recent
Developments Related to Liquidity and Capital Resources
We have
incurred significant net losses since inception and we have relied on our
ability to fund our operations principally through both registered and
unregistered offerings of our securities and prepayments on long-term
polysilicon contracts. Including the $50 million loan from the Tianwei
transaction, even if we are successful in securing additional long-term
polysilicon contracts that could provide additional prepayments, and our
existing customers fulfill their obligations to make additional prepayments when
due (of which there can be no assurances), we will still need to seek additional
financing to complete our planned polysilicon production facility currently
under construction in Pocatello, Idaho, or the Project. As of December 31, 2009,
we had cash and cash equivalents on hand of $3.2 million and current liabilities
of $76.8 million.
To help
address our cash needs to meet our obligations, we have modified payment terms
in purchase orders with more than sixty of our vendors to structure payment
plans for amounts past due and to be invoiced in the future. Furthermore, in
September 2009, we entered into a definitive agreement providing for a majority
investment in us by Tianwei New Energy Holdings Co., Ltd., or Tianwei, and debt
financing by Tianwei through China Construction Bank, as agent, for the
construction and development of the Project. In December 2009, the
investment was completed and we issued to Tianwei 33,379,287 newly-issued shares
of our common stock, representing approximately 60% of our fully-diluted
outstanding shares. Tianwei is restricted from transferring directly or
indirectly 23,365,501, or 70%, of the newly-issued shares to any third party
until the first anniversary of the closing date of the agreement. We
also granted to Tianwei a warrant to purchase an additional 10 million shares of
the Company’s common stock. The terms of the warrant include: (i) a per share
exercise price equal to $2.52; (ii) an exercise period of seven years; and (iii)
provision for a cashless, net-issue exercise.
The
existing polysilicon supply agreements with Tianwei were amended such that $50
million of an aggregate of $79 million in secured prepayments previously paid by
Tianwei to us was converted into the 33,379,287 newly-issued shares
of our common stock. The amended supply agreements also provide for a
reduced price at which Tianwei purchases polysilicon by approximately 11% in
each year of the ten year agreement. Tianwei is also obligated to loan us $50
million through China Construction Bank, as agent, payable in two
tranches. In January 2010, we received the first tranche of $20
million and expect to receive the second tranche of $30 million in February
2010. Pursuant to the loan agreement, we have pledged a security
interest in all of our assets to Tianwei. Tianwei has also agreed to use
its reasonable best efforts to assist us in obtaining additional financing
that may be required by us to construct and operate the
Project.
17
The $50
million in debt, plus $55 million in additional prepayments from our existing
customers, will be used to pay current liabilities and complete
construction of the Project to the point where we can commence initial shipments
to customers. Until such time, we intend to delay seeking the
additional financing of $71 million which is estimated to be the amount
necessary to complete the construction of the Project. On the basis of these
funding sources, we expect to complete our reactor demonstration in the fourth
quarter of fiscal 2010 and begin polysilicon production in the first quarter of
fiscal 2011. However, if there is a delay in receiving the second
tranche of $30 million in debt from the Tianwei transaction, or we do not
receive anticipated prepayments from our other polysilicon supply agreements, we
may need to curtail Project construction.
We do not
expect to generate significant revenue until we successfully commence the
manufacture and shipment of polysilicon and begin meeting the obligations under
our supply contracts. In addition, we will still need to seek additional
financing to complete the Project. If we are unable to secure additional
long-term supply contracts and prepayments, assuming the cost to construct and
equip the Project does not exceed $390 million, we are able to amend our
contract with Wuxi Suntech Power Co., Ltd. under similar terms, and if
all of our other customers make their prepayments when due, the amount we will
need to raise could be as much as $71 million. If we are unable to
secure additional long-term supply contracts and prepayments, if for any reason
(e.g. contract amendment, termination, breach, etc.) one or more of our
polysilicon supply customers does not pay the full amount of the prepayments to
which they are presently committed and/or if the actual cost to complete the
Project is more than $390 million, the amount we will need to raise could exceed
$71 million. Furthermore, if there is a delay in receiving the second
tranche of $30 million in debt from the Tianwei transaction, or other
unfavorable factors occur, it could raise substantial doubt about our ability to
continue as a going concern. The inability to continue as a going concern could
result in an orderly wind-down of us or other potential forms of
restructuring.
Hoku
Materials
Hoku
Materials was incorporated to manufacture polysilicon, a key material used in
photovoltaic modules. In May 2007, we commenced construction of our planned
polysilicon manufacturing facility in Pocatello, Idaho, which would be capable
of producing 4,000 metric tons of polysilicon per year, or the Project. The
estimated construction cost for our Project is $390 million. This estimate is
based on our discussion with vendors, declining costs of materials and labor and
ongoing adjustments of certain design elements; however, changes in costs,
modifications in construction timelines and other factors could cause the actual
cost to significantly exceed our estimate. Any significant increase in the cost
to complete the Project could have a material adverse effect on our business,
financial condition and results of operations.
During
the three and nine months ended December 31, 2009, Hoku Materials incurred an
operating loss of $825,000 and $2.4 million respectively, in expenses, which
mainly consisted of payroll, including stock
compensation, professional fees and travel expenses. In addition, as
of December 31, 2009, Hoku Materials has capitalized $273.8 million related to
construction costs for the Project and had received $123 million in customer
deposits as prepayments on long-term polysilicon supply agreements, which
excludes $50 million in equity contributions through our investment
arrangement with Tianwei.
Construction/Financing
Update
In
December 2009, the investment transaction with Tianwei was completed and we
issued to Tianwei 33,379,287 newly-issued shares of our common stock,
representing approximately 60% of our fully-diluted outstanding shares. Tianwei
is restricted from transferring directly or indirectly 23,365,501, or 70%, of
the newly-issued shares to any third party until the first anniversary of the
closing date of the agreement. We also granted to Tianwei a warrant
to purchase an additional 10 million shares of the Company’s common stock. The
terms of the warrant include: (i) a per share exercise price equal to $2.52;
(ii) an exercise period of seven years; and (iii) provision for a cashless,
net-issue exercise.
The
existing polysilicon supply agreements with Tianwei were amended such that $50
million of an aggregate of $79 million in secured prepayments previously paid by
Tianwei to us was converted into the 33,379,287 newly-issued shares
of our common stock. The amended supply agreements also provide for a
reduced price at which Tianwei purchases polysilicon by approximately 11% in
each year of the ten year agreement. Tianwei is also obligated to loan us $50
million through China Construction Bank, as agent, payable in two
tranches. In January 2010, the Company received the first tranche of
$20 million and expects to receive the second tranche of $30 million in February
2010. Pursuant to the loan agreement, we have pledged a security
interest in all of our assets to Tianwei. Tianwei has also agreed to use
its reasonable best efforts to assist us in obtaining additional financing
that may be required by us to construct and operate our polysilicon
manufacturing facility.
The $50
million in debt, plus $55 million in additional prepayments from our existing
customers, will be used to pay current liabilities and complete
construction of the Project to the point where we can commence initial shipments
to customers. On the basis of these funding sources, we expect to
complete our reactor demonstration in the fourth quarter of fiscal 2010 and
begin polysilicon production in the first quarter of fiscal 2011. However, if
there is a delay in receiving the second tranche of $30 million in debt from the
Tianwei transaction, or other unfavorable factors occur, we may need to curtail
Project construction.
18
Polysilicon
Supply Agreement Updates
Jinko
Solar Co., Ltd.
In
February 2009, we entered into a fixed price, fixed volume supply agreement with
Jinko Solar Co., Ltd., formerly known as Jiangxi Jinko Solar Co., Ltd., or
Jinko, for the sale and delivery of polysilicon to Jinko over a ten-year period,
or the Jinko Agreement. Pursuant to the Jinko Agreement, Jinko has
paid us a cash deposit of $20 million as prepayment for future product
deliveries. Over the ten-year term of the Jinko Agreement, the total
volume of polysilicon to be sold by us to Jinko is approximately $119 million,
subject to product deliveries and other conditions. In November 2009,
we entered into Amendment No. 1 to Amended & Restated Supply Agreement with
Jinko, or the Amendment. Pursuant to the Amendment, we agreed with
Jinko to eliminate the first year of shipments under the Jinko Agreement, such
that our first delivery of polysilicon products to Jinko is now due in December
2010, and the term of the Jinko Agreement has been shortened to nine years,
resulting in the total volume of polysilicon to be sold by us to Jinko being
reduced to approximately $106 million, subject to product deliveries and other
conditions. Each party, however, may terminate the Jinko Agreement at
an earlier date under certain circumstances, including, but not limited to, the
bankruptcy, assignment for the benefit of creditors, liquidation or a material
breach of the Jinko Agreement by the other party. Our failure to commence
shipments of polysilicon by December 31, 2010 constitutes a material breach by
us under the terms of the Jinko Agreement, as amended, among other
circumstances.
Solarfun
Power Hong Kong Limited
In May
2008, we entered into a fixed price, fixed volume supply agreement with Solarfun
Power Hong Kong Limited, or Solarfun, a subsidiary of Solarfun Power Holdings
Co., Ltd., for the sale and delivery of polysilicon to Solarfun over a ten-year
period, or the Solarfun Agreement. In October 2008 and March 2009, we
entered into an amendment to the Solarfun Agreement, or Amendment
No.1, and in March 2009, we entered into a second amendment to the
Solarfun Agreement, or Amendment No. 2. Pursuant to the Solarfun
Agreement, Amendment No. 1, and Amendment No. 2, Solarfun has paid us cash
deposits of $37 million as a prepayment for future polysilicon product
deliveries, and is obligated to pay us an additional $18 million in prepayments
in increments of $8 million that was to have been paid in July 2009, $1 million
that was to have been paid in each of August and September 2009, $3 million that
was to have been paid in October 2009, and $5 million that was to be paid in
January 2010. Solarfun did not pay the $13 million that was due in
July through October 2009, and Hoku had the right to terminate the Supply
Agreement, and retain all prepayments received.
In
November 2009, we entered into a third amendment to the Solarfun Agreement, or
Amendment No. 3, which became effective in December 2009, when Solarfun paid us
$8 million of the $13 million prepayment balance that was past
due. Under Amendment No. 3, we agreed that Solarfun could pay us the
$13 million that was due in July and October 2009, in increments of $8 million,
which was paid in December 2009, $4 million to be paid in March 2010, and $1
million to be paid when we commence the shipment of polysilicon to
Solarfun. The balance of $5 million that was payable in January 2010,
is to be paid in equal monthly increments of $1 million during each of the five
subsequent months after the month of the first shipment. Solarfun
retains the right to terminate the Supply Agreement if Hoku has not commenced
shipments by June 30, 2010, and Hoku retains the right to terminate the Supply
Agreement, and retain all prepayments received, if Solarfun fails to pay any of
its future prepayments when due.
Tianwei
New Energy (Chengdu) Wafer Co., Ltd.
In
connection with our Tianwei investment transaction which was completed in
December 2009, the existing polysilicon supply agreements were amended such that
$50 million of an aggregate of $79 million in secured prepayments previously
paid by Tianwei to us was converted into the 33,379,287 newly-issued
shares of our common stock. We also amended our agreements and
reduced the price at which Tianwei purchases polysilicon by approximately 11%
per year. The amount of polysilicon to be delivered remains unchanged
and Tianwei is still required to pay us an additional $2 million in prepayments;
however, the total revenue for the polysilicon to be sold by us to Tianwei has
been modified such that up to approximately $418 million may be payable to us
during the ten-year term (exclusive of amounts Tianwei may purchase pursuant to
its right of first refusal), subject to acceptance of product deliveries and
other conditions.
Shanghai
Alex New Energy Co., Ltd.
In
February 2009, we entered into a fixed price, fixed volume supply agreement with
Shanghai Alex New Energy Co., Ltd., or Alex, for the sale and delivery of
polysilicon to Alex over a ten-year period, or the Alex
Agreement. Pursuant to the Alex Agreement, Alex has paid us a cash
deposit of $20 million as prepayment for future product
deliveries. Over the ten-year term of the Alex Agreement, the total
volume of polysilicon to be sold by us to Alex is approximately $119 million,
subject to product deliveries and other conditions. In December 2009,
we entered into Amendment No. 1 to Supply Agreement with Alex, or the
Amendment. Pursuant to the Amendment, we agreed with Alex to shift
the date of first delivery of polysilicon, such that our first delivery of
polysilicon products to Alex is now due in September 2010. Each party, however,
may terminate the Alex Agreement at an earlier date under certain circumstances,
including, but not limited to, the bankruptcy, assignment for the benefit of
creditors, liquidation or a material breach of the Alex Agreement by the other
party. Our failure to commence shipments of polysilicon by December 31, 2010
constitutes a material breach by us under the terms of the Alex Agreement, among
other circumstances.
Wuxi
Suntech Power Co., Ltd.
In June
2007, we entered into a supply agreement with Wuxi Suntech Power Co., Ltd., or
Suntech, for the sale and delivery of polysilicon to Suntech over a ten-year
period beginning in July 2009, or the Suntech Supply Agreement. In
May 2008, we entered into a First Amended and Restated Suntech Supply Agreement,
or the Amended Suntech Supply Agreement. In July 2009, we amended the
existing agreements between the two parties, which became effective in December
2009 when the investment transaction with Tianwei was completed and Tianwei
became our majority shareholder. Under the amendment Suntech agreed
to waive the following rights:
|
·
|
Its
right to enforce our obligation to complete the Test Demonstration (as
defined in the Suntech Supply Agreement) by September 30, 2009, or the
Demo Final Date. Suntech’s waiver expired on December 31, 2009,
and Suntech may assert that we are in breach of our obligation to complete
the Test Demonstration.
|
19
|
·
|
Its
right to enforce our obligation to complete the TCS Demonstration (as
defined in the Suntech Supply Agreement) by December 31, 2009, or the TCS
Final Date. Suntech’s waiver will expire on December 31, 2010,
with the result that if we have not completed the TCS Demonstration by
that date, we will be in breach of our obligation to complete the TCS
Demonstration.
|
|
·
|
Its
right to enforce our obligation to complete the Shipment Milestone (as
defined in the Suntech Supply Agreement) by December 31, 2009, or the
Shipment Final Date. Suntech’s waiver will expire on March 31,
2010, with the result that if we have not completed the Shipment Milestone
by that date, we will be in breach of our obligation to complete the
Shipment Milestone.
|
In
exchange for the Suntech waivers described above, we agreed to waive our right
to payment of the TCS Demonstration Installment and, as a result, Suntech is no
longer required to make $15 million in additional prepayments. In
addition, we authorized Suntech to replace its $45 million Stand-by Letter of
Credit with a $30 million stand-by letter of credit issued by a bank in China,
which may be collateralized with non-cash assets.
As of
December 31, 2009, we had not completed the Test Demonstration, and as a result
Suntech could assert that we are in breach, and seek to terminate the Amended
Suntech Supply Agreement. If the agreement is terminated our business
will be materially harmed. In addition, we will be required to return
the $2 million in prepayments which we have received from Suntech and we will
need to secure an additional $32 million in funds in order to finance the
construction the Project. Suntech has not been given the Company any
indication that it intends to terminate the contract and the Company believes
Suntech will work with the Company to amend the contract.
Wealthy
Rise International, Ltd.
We have
granted to Wealthy Rise International, Ltd., or Solargiga, an extension of time,
or the Extension, to make an aggregate of $13.2 million in prepayments that were
payable in installments between June and December 2009. Pursuant to
the Extension, the date on which the $13.2 million is due has been extended to
the earlier of February 26, 2010, or the date on which we and Solargiga enter
into a definitive amendment to the Agreement pursuant to which the schedule and
conditions for Solargiga’s prepayments could be adjusted.
Hoku
Solar
We
incorporated Hoku Solar to design, engineer and install PV systems and related
services.
During
the three and nine months ended December 31, 2009, Hoku Solar incurred an
operating loss of $473,000 and $1.4 million respectively, in expenses, which
mainly consisted of payroll, including stock compensation, and professional
fees.
Hoku
Fuel Cells
Under the
name Hoku Fuel Cells, we operate our fuel cell business, which has designed,
developed and manufactured membranes and membrane electrode assemblies, or MEAs,
for proton exchange membrane, or PEM, fuel cells. Hoku MEAs are designed for the
residential primary power, commercial back-up, and automotive hydrogen fuel cell
markets. To date, none of our customers have commercially deployed products
incorporating Hoku MEAs or Hoku Membranes, and we have not sold any products
commercially. We do not have any current material fuel cell
contracts.
We have
selectively pursued patent applications in order to protect our technology,
inventions and improvements related to our fuel cell products; however, we do
not currently plan on actively pursuing any new contracts or committing material
resources to further develop our fuel cell products.
During
the three and nine months ended December 31, 2009, Hoku Fuel Cells had
insignificant activity primarily associated with patent applications in order to
protect our technology, inventions and improvements related to our fuel cell
products.
Financial
Operations Review
During
the three and nine months ended December 31, 2009, we derived all of our revenue
through PV system installation and ancillary services related to Hoku Solar. We
expect that all of our revenue will be derived through PV system installations
and the sale of electricity until the first quarter of fiscal 2011, when Hoku
Materials is expected to generate revenue through the sale of
polysilicon.
During
the three and nine months ended December 31, 2009, our revenue was $259,000 and
$1.8 million, respectively, comprised of commercial PV system installations and
electricity sales.
20
Consolidated
Results of Operations
The
following analysis of the unaudited consolidated financial condition and results
of operations of Hoku Scientific, Inc. and its subsidiaries should be read in
conjunction with the consolidated financial statements and the related notes
thereto in this Quarterly Report on Form 10-Q.
Comparison
of Three Months Ended December 31, 2009 and 2008
Revenue. Revenue was $259,000
for the three months ended December 31, 2009, compared to $767,000 for the same
period in fiscal 2009. Revenue in both periods was primarily comprised of PV
system installations and related services.
Cost of Revenue.
Cost of revenue was $65,000 for the three months ended December 31,
2009, compared to $592,000 for the same period in fiscal 2009. Cost of revenue
primarily consisted of employee compensation and supplies and
materials.
Selling, General and Administrative
Expenses. Selling, general and administrative expenses were $1.5 million
for the three months ended December 31, 2009, compared to $1.1 million for the
same period in fiscal 2009. The increase of $368,000 was primarily due to
expenditures toward the reactor demonstration, which is expected to be completed
in the fourth quarter of fiscal 2010, of $101,000, retention payments for
officers and other key employees of $65,000, and contractor costs, primarily for
cancellation of the Hawaiian Electric project of $69,000. In
addition, there were increases in depreciation, primarily related to the PV
systems installed for the Hawaii State Department of Transportation of $66,000,
lower application of other direct and indirect charges of $66,000, inventory
impairment of solar modules of $39,000 and rent
for corporate and warehouse facilities of $38,000. These increases were
partially offset by reductions in professional fees of
$70,000.
Interest and Other Income.
Interest and other income was $16,000 for the three months ended December 31,
2009 compared to $36,000 for the same period in fiscal 2009. Interest and other
income for the three months ended December 31, 2009 was primarily comprised of
$13,000 in reversal of prior accruals for general excise tax reserves due to
statute limitations and interest income of $2,000. Interest and other
income for the three months ended December 31, 2008 was primarily comprised of
losses related to our foreign currency (Euro) forward contracts of $594,000,
offset by a gain of $550,000 on the sale of our fee simple interest in our real
property and improvements of our corporate headquarters, sale of fuel cell
equipment of $24,000 and interest income of $50,000.
Comparison
of Nine Months Ended December 31, 2009 and 2008
Revenue. Revenue was $1.8
million for the nine months ended December 31, 2009, compared to $4.8 million
for the same period in fiscal 2009. Revenue for both periods was primarily
comprised of PV system installations and related services.
Cost of Revenue.
Cost of revenue was $1.5 million for the nine months ended December
31, 2009, compared to $3.6 million for the same period in fiscal 2009. Cost of
revenue primarily consisted of employee compensation and supplies and
materials.
Selling, General and Administrative
Expenses. Selling, general and administrative expenses were $4.1 million
for the nine months ended December 31, 2009, compared to $3.4 million for the
same period in fiscal 2009. The increase of $667,000 was primarily due to higher
payroll expenses of $315,000, compensation to Board Directors of $210,000,
retention payments for officers and other key employees of $195,000 and rent for
corporate and warehouse facilities of $191,000. In addition, there
were increases in depreciation, primarily related to the PV systems installed
for the Hawaii State Department of Transportation of $153,000, expenditures
toward the reactor demonstration, which is expected to be completed in the
fourth quarter of fiscal 2010, of $101,000 and marketing expenses of
$83,000. Furthermore, there was a lower application of other
direct and indirect charges of $88,000. These increases were partially offset by
reductions in stock-based compensation of $313,000, professional fees of
$240,000 and travel expenses of $77,000.
Interest and Other Income.
Interest and other income was $318,000 for the nine months ended December 31,
2009 compared to $87,000 for the same period in fiscal 2009. Interest and other
income for the nine months ended December 31, 2009 was primarily comprised of
the reversal of $234,000 in accruals for general excise tax reserves due to
statute of limitations, sale of fuel cell equipment of $40,000 and interest
income of $22,000. Interest and other income for the nine months
ended December 31, 2008 was primarily comprised of gain of our fee simple
interest in our real property and improvements of our corporate headquarters of
$550,000, interest income of $295,000 and sale of fuel cell equipment
of $96,000. The income was partially offset by losses related to our
foreign currency (Euro) forward contracts of $862,000.
Liquidity
and Capital Resources
We have
incurred significant net losses since inception and we have relied on our
ability to fund our operations principally through both registered and
unregistered offerings of our securities and prepayments on long-term
polysilicon contracts. Even if we are successful in securing additional
long-term polysilicon contracts that could provide additional prepayments, and
our existing customers fulfill their obligations to make additional prepayments
when due (of which there can be no assurances), we will still need to seek
additional financing to complete the Project. As of December 31, 2009, we had
cash and cash equivalents on hand of $3.2 million and current liabilities of
$76.8 million.
21
To help
address our cash needs to meet our obligations, we have modified payment terms
in purchase orders with more than sixty of our vendors to structure payment
plans for amounts past due and to be invoiced in the future. In December 2009,
the investment transaction was completed and we issued to Tianwei 33,379,287
newly-issued shares of its common stock, representing approximately 60% of our
fully-diluted outstanding shares. Tianwei is restricted from transferring
directly or indirectly 23,365,501, or 70%, of the newly-issued shares to any
third party until the first anniversary of the closing date of the
agreement. We also granted to Tianwei a warrant to purchase an
additional 10 million shares of our common stock. The terms of the warrant
include: (i) a per share exercise price equal to $2.52; (ii) an exercise period
of seven years; and (iii) provision for a cashless, net-issue
exercise.
The
existing polysilicon supply agreements with Tianwei were amended such that $50
million of an aggregate of $79 million in secured prepayments previously paid by
Tianwei to us was converted into the 33,379,287 newly-issued shares
of our common stock. The amended supply agreements also provide for a
reduced price at which Tianwei purchases polysilicon by approximately 11% in
each year of the ten year agreement. Tianwei is also obligated to loan us $50
million through China Construction Bank, as agent, payable in two
tranches. In January 2010, we received the first tranche of $20
million and expect to receive the second tranche of $30 million in February
2010. Pursuant to the loan agreement, we have pledged a security
interest in all of our assets to Tianwei. Tianwei has also agreed to use its
reasonable best efforts to assist us in obtaining additional financing that
may be required by us to construct and operate the Project.
The $50
million in debt, plus $55 million in additional prepayments from our existing
customers, will be used to pay current liabilities and complete
construction of the Project to the point where we can commence initial shipments
to customers. Until such time, we intend to delay seeking the
additional financing of $71 million which is necessary to complete the
construction of the Project. On the basis of these funding sources, we expect to
complete our reactor demonstration in the fourth quarter of fiscal 2010 and
begin polysilicon production in the first quarter of fiscal
2011. However, if there is a delay in receiving the second tranche of
$30 million in debt from the Tianwei transaction, or we do not receive
anticipated prepayments from our other polysilicon supply agreements, we may
need to curtail Project construction.
The total
actual cost of construction and equipment for the Project is estimated to be
$390 million. This estimate is based on our discussion with vendors, declining
costs of materials and labor and ongoing adjustments of certain design elements;
however, changes in costs, modifications in construction timelines and other
factors could cause the actual cost to significantly exceed our estimate. Our
six long-term supply customers have collectively committed to contribute $178.4
million towards these costs in the form of polysilicon supply prepayments,
subject to the achievement of various milestones and repayment obligations under
certain circumstances and we have received an additional $50 million from
Tianwei which was converted into the 33,379,287 newly-issued shares of our
common stock. As of December 31, 2009, we had collected $123.0 million of
combined prepayments that were committed to us from these customers and we have
contributed an additional approximately $41 million to the construction cost of
the Project.
We do not
expect to generate significant revenue until we successfully commence the
manufacture and shipment of polysilicon and begin meeting the obligations under
our supply contracts. In addition, we will still need to seek additional
financing to complete the Project. If we are unable to secure additional
long-term supply contracts and prepayments, assuming the cost to construct and
equip the Project does not exceed $390 million, we are able to amend our
contract with Wuxi Suntech Power Co., Ltd. under similar terms, and if
all of our other customers make their prepayments when due, the amount we will
need to raise could be as much as $71 million. If we are unable to
secure additional long-term supply contracts and prepayments, if for any reason
(e.g. contract amendment, termination, breach, etc.) one or more of our
polysilicon supply customers do not pay the full amount of the prepayments to
which they are presently committed and/or if the actual cost to complete the
Project is more than $390 million, the amount we will need to raise could exceed
$71 million. Furthermore, if there is a delay in receiving the second
tranche of $30 million in debt from the Tianwei transaction, or other
unfavorable factors occur, it could raise substantial doubt about our ability to
continue as a going concern. The inability to continue as a going concern could
result in an orderly wind-down of us or other potential forms of
restructuring.
As of
December 31, 2009, we had an accumulated deficit of $18.6 million. Hoku
Materials does not currently generate any revenue and we do not anticipate
revenue from Hoku Materials until the first quarter of fiscal
2011. During the nine months ended December 31, 2009, our revenue was
primarily from PV system installations and related services primarily from Hoku
Solar contracts. At this time, we do not believe we will receive any
meaningful revenue from Hoku Fuel Cell products and services for the foreseeable
future.
The sale
of additional equity and convertible debt instruments may result in additional
dilution to our current stockholders. Additionally, if we do not have sufficient
cash to meet all of our obligations as they come due, we will have to ask our
vendors to forebear from enforcing one or more of their rights under their
respective agreements. There are no assurances that our vendors will
agree to forebear or otherwise make any concessions under their respective
agreement. If any of our vendors seek to enforce their rights under these
agreements that we are unable to perform, which could include asserting and/or
foreclosing on materialmen’s and laborer’s liens on the Project, or taking other
legal action, it could materially harm our business, financial condition and
results of operations and we may be forced to delay, alter or abandon our
planned business operations, which could have a material adverse effect on the
our ability to continue as a going concern and the recoverability of its
long-lived assets.
Net Cash Used In
Operating Activities. Net cash used in operating activities
was $3.8 million for the nine months ended December 31, 2009, compared to $8.5
million for the same period in fiscal 2009. The net cash used in operating
activities was primarily due to the costs expended for uncompleted solar
contracts, accounts payable and accrued operating expenses and other current
assets and liabilities and the result of lower deferred revenues and
customer deposits during the nine months ended December 31, 2009 as
compared to the same period in fiscal 2009.
Net Cash Used In
Investing Activities. Net cash used in investing activities
was $52.8 million for the nine months ended December 31, 2009, compared to $87.8
million for the same period in fiscal 2009. The net cash used in investing
activities in both periods was primarily due to the capitalization of funds to
pay for construction costs related the Project.
22
Net Cash Provided
By Financing Activities. Net cash provided by financing
activities was $42.4 million for the nine months ended December 31, 2009,
compared to $87.8 million for the same period in fiscal 2009. The net cash
provided by financing activities during the nine months ended December 31, 2009
was primarily due to deposits received from polysilicon prepayment supply
contracts of $39.0 million and contributions from the noncontrolling interest of
$3.6 million. The net cash provided by financing activities during
the nine months ended December 31, 2008 was primarily due to $81.5
million in deposits received from supply agreements for polysilicon deliveries
and the sale of 1,160,716 shares of our common stock for net proceeds of
approximately $6.7 million.
Contractual
Obligations
The
following table summarizes the contractual obligations that existed at December
31, 2009. The amounts in the table below do not include time and materials
contracts and incentive payments. In addition, the GEC Graeber Engineering
Consultants GmbH, and MSA Apparatus Construction for Chemical Equipment Ltd.
contract for the purchase and sale of hydrogen reduction reactors and
hydrogenation reactors is to be paid in Euros and the contractual obligation is
determined based on the Euro/U.S. dollar exchange rate, which was $1.43320/Euro
as of December 31, 2009.
Contractual Obligations
|
Total
|
Less Than
One Year
|
One to
Three Years
|
Three to
Five Years
|
More Than
Five Years
|
|||||||||||||||
(in
thousands)
|
||||||||||||||||||||
Construction
in progress
|
$ | 18,881 | $ | 18,881 | $ | — | $ | — | $ | — | ||||||||||
Equipment
purchases
|
87,397 | 84,442 | 2,955 | — | — | |||||||||||||||
Supply
purchases
|
60,611 | 2,255 | 36,779 | 21,577 | — | |||||||||||||||
Leases
|
466 | 232 | 234 | — | — | |||||||||||||||
Deposits
– Hoku Materials
|
123,000 | 14,641 | 40,152 | 29,612 | 38,595 | |||||||||||||||
Total
|
$ | 290,355 | $ | 120,451 | $ | 80,120 | $ | 51,189 | $ | 38,595 |
We may
have insufficient cash to meet all of our obligations as they come due through
December 31, 2010. We have modified payment terms in purchase orders
with more than sixty of our vendors to structure payment plans for amounts past
due and to be invoiced in the future. In the event we are unable to meet our
obligations under payment plans and other agreements, we will have to ask our
vendors to forebear from enforcing one or more of their rights under their
respective agreements. There are no assurances that any of our
vendors will agree to forebear or otherwise make any concessions under their
respective agreements. If any of our vendors seek to enforce their
rights under these agreements that we are unable to perform, which could include
asserting and/or foreclosing on materialmen’s and laborer’s liens on the
Project, or taking other legal action, it could materially harm our business,
financial condition and results of operations and we may be forced to delay,
alter or abandon our planned business operations, which could have a material
adverse effect on the our ability to continue as a going
concern.
Stone & Webster, Inc. In
August 2007, we entered into an Engineering, Procurement and Construction
Management Contract with Stone & Webster, Inc., or S&W, a subsidiary of
The Shaw Group Inc., for engineering, procurement, and construction management
services for the construction of our the Project, which was amended in October
2007 by Change Order No. 1, again in April 2008 by Change Order No.
2, and again in February 2009 by Change Order No. 3, or collectively, the
S&W Engineering Agreement. Under the S&W Engineering Agreement, S&W
is to provide all engineering and procurement services necessary to complete the
design and planning for construction of the Project. S&W is to be paid on a
time and materials basis plus a fee for its services and incentives if certain
schedule and cost targets are met. The target cost for the services to be
provided under the S&W Engineering Agreement is $50 million; however we
believe that we could incur up to $53 million in costs.
Through
December 31, 2009, we had made payments to S&W of $45.7 million and had $1.8
million of payables outstanding as of December 31, 2009.
JH Kelly LLC. In August 2007,
we entered into a Cost Plus Incentive Contract with JH Kelly LLC, or JH Kelly,
for construction services for the construction of the Project, which was amended
in October 2007, by Change Order No. 1, again in April 2008 by Change
Order No. 2, again in March 2009 by Change Order No. 3, and again in September
2009 by Change Order No. 4, or collectively, the JH Kelly Construction
Agreement. Under the JH Kelly Construction Agreement, JH Kelly agreed to provide
the construction services as our general contractor for the construction of the
Project with a production capacity of 4,000 metric tons per year. The target
cost for the services to be provided under the JH Kelly Construction Agreement
is $145 million, including up to $5.0 million of incentives that may be
payable.
Through
December 31, 2009, we had made payments to JH Kelly of $59.1 million and had
$10.0 million of payables outstanding as of December 31, 2009.
23
Dynamic Engineering Inc. In
October 2007, we entered into an agreement with Dynamic Engineering Inc., or
Dynamic, for design and engineering services, and a related technology license,
for the process to produce and purify trichlorosilane, or TCS. Under the
agreement with Dynamic, or the Dynamic Agreement, Dynamic is obligated to design
and engineer a TCS production facility that is capable of producing 20,000
metric tons of TCS for the Project. The TCS production facility is to be
integrated by S&W into the overall Project, and will be constructed by JH
Kelly. Under the Dynamic Agreement, Dynamic's engineering services are provided
and invoiced on a time and materials basis, and the license fee will be
calculated upon the successful completion of the TCS production facility, and
demonstration of certain TCS purity and production efficiency capabilities. The
maximum aggregate amount that we may pay Dynamic for the engineering services
and the technology license is $12.5 million, which includes an incentive for
Dynamic to complete the engineering services under budget. Dynamic is
guaranteeing the quantity and purity of the TCS to be produced at the completed
facility, and has agreed to indemnify us for any third-party claims of
intellectual property infringement.
Through
December 31, 2009, we had made payments to Dynamic of $5.6 million and had $2.8
million of payables outstanding as of December 31, 2009.
GEC Graeber Engineering Consultants
GmbH and MSA Apparatus Construction for Chemical Equipment
Ltd. We entered into a contract with GEC Graeber Engineering
Consultants GmbH, or GEC, and MSA Apparatus Construction for Chemical Equipment
Ltd., or MSA, for the purchase and sale of 16 hydrogen reduction reactors and
hydrogenation reactors for the production of polysilicon, and related
engineering and installation services. Under the contract, we will pay up to a
total of 20.9 million Euros for the reactors. The reactors are designed and
engineered to produce approximately 2,000 metric tons of polysilicon per year.
The term of the contract extends until the end of the first month after the
expiration date of the warranty period, but may be terminated earlier under
certain circumstances.
In
January 2009, we received the first shipment of six Siemens-process reactors at
the Project, and all of these polysilicon reactors have been assembled and put
into place on our production floor. The reactors are the first units to arrive
in Pocatello out of a planned total order of 28. The next set of 10 polysilicon
reactors and related equipment has been manufactured, and would be shipped to
the Project after our payment of an additional 3.2 million Euros or $4.6 million
(based on the Euro/U.S. dollar exchange rate, which was $1.43320/Euro as of
December 31, 2009). We are in discussions with GEC to purchase additional 12
reactors necessary for our planned annual capacity of 4,000 metric tons of
polysilicon. The cost of these additional reactors is not expected to
be greater than 20.9 million Euros, or $30.0 million (based on the Euro/U.S.
dollar exchange rate, which was $1.4332/Euro as of December 31,
2009).
Through
December 31, 2009, we had paid GEC and MSA an aggregate amount of 15.2 million
Euros or $22.3 million and had 2.4 million Euros or $3.5 million of payables
outstanding as of December 31, 2009.
Idaho Power Company. We
entered into an agreement with Idaho Power Company, or Idaho Power, to complete
the construction of the electric substation to provide power for the Project, or
the Idaho Power Agreement. We are obligated to pay Idaho Power an aggregate of
$16.5 million for the completion of the substation and associated facilities.
The Amended Idaho Power Agreement also provides that upon completion of
construction, there will be a true-up of actual construction costs, so that
either we will be refunded any monies we have paid to Idaho Power over and above
the actual costs of construction, or we will pay Idaho Power any additional
construction costs beyond the original amount. As of December 31, 2009, the
Company incurred a $524,000 true-up of actual construction costs.
Through
December 31, 2009, we had paid Idaho Power an aggregate amount of $17.5 million,
which includes $917,000 paid to Idaho Power pursuant to a separate engineering
services agreement, and had $524,000 of payables outstanding as of December 31,
2009. We do not anticipate any additional cost adjustments, which results in the
aggregate cost of $18.0 million to complete the substation and associated
transmission facilities, including the engineering services
agreement.
We also
entered into an Electric Service Agreement with Idaho Power, or the ESA, for the
supply of electric power and energy to us for use in the Project, subject to the
approval of the Idaho Public Utilities Commission, or the PUC. The term of the
ESA is four and a half years, beginning in June 2009 and expiring in
December 2013. During the term of the ESA, Idaho Power agrees to make up to
82,000 kilowatts of power available to us at certain fixed rates, which are
subject to change only by action of the PUC. After the initial term of the ESA
expires, either we or Idaho Power may terminate the ESA without prejudice. If
neither party chooses to terminate the ESA, then Idaho Power will continue to
provide electric service to us at the same fixed rates.
AEG Power Solutions USA Inc.
(formerly known as Saft Power Systems USA, Inc.). In March 2008, we
entered into an agreement with AEG Power Solutions USA Inc., or AEG, formerly
known as Saft Power Systems USA, Inc., which was subsequently amended in May
2009, or the AEG Agreement, for the purchase and sale of thyroboxes, earth fault
detection systems, and related technical documentation and services, or the
Deliverables. Under the AEG Agreement, AEG was obligated to manufacture and
deliver the Deliverables, which are used as the power supplies for the
polysilicon deposition reactors to be used in the Project. The total
fees payable to AEG for all Deliverables under the AEG Agreement is
approximately $13 million.
Through
December 31, 2009, we had made payments to AEG of $6.2 million and had $2.2
million of payables outstanding as of December 31, 2009.
Polymet Alloys, Inc. In
November 2008, we entered into an agreement with Polymet Alloys, Inc., or
Polymet, for the supply of silicon metal for use the Project. In May 2009, we
entered into an amended and restated supply agreement with Polymet, or the
Amended Polymet Agreement. The term of the Amended Polymet Agreement
is three years, commencing in 2010. Each year during the term of the Amended
Polymet Agreement, Polymet has agreed to sell to us, and we have agreed to
purchase from Polymet, no less than 65% of our annual silicon metal
requirement. Pricing is to be negotiated for each year of the Amended
Polymet Agreement; however, if the parties are unable to agree on pricing for
any year, or we have agreed to purchase less than the amount specified in the
Amended Polymet Agreement, Polymet has a right of first refusal to match the
terms offered by any third-party supplier from whom we may seek to purchase
silicon metal. Either party may also terminate the Amended Polymet
Agreement under certain circumstances, including a material breach by the other
party that has not been cured within a specified cure period, or the other
party’s voluntary or involuntary liquidation. As of December 31, 2009, we had
not made any payments to Polymet.
24
PVA Tepla Danmark. In April
2008, we entered into an agreement with PVA Tepla Danmark, or PVA, for the
purchase and sale of slim rod pullers and float zone crystal pullers. Under the
agreement, PVA is obligated to manufacture and deliver the slim rod pullers and
float zone crystal pullers for the Project. Slim rod pullers are used to make
thin rods of polysilicon that are then transferred into polysilicon deposition
reactors to be grown through a chemical vapor deposition process into
polysilicon rods for commercial sale to our end customers. The float zone
crystal pullers convert the slim rods into single crystal silicon for use in
testing the quality and purity of the polysilicon. The total fees payable to PVA
is approximately $6 million, which is payable in four installments, the first of
which was made in August 2008. Either party may terminate the agreement if the
other party is in material breach of the agreement and has not cured such breach
within 180 days after receipt of written notice of the breach, or if the other
party is bankrupt, insolvent, or unable to pay its debts.
Through
December 31, 2009, we had paid PVA an aggregate amount of $1.9 million and had
$3.9 million of payables outstanding as of December 31, 2009.
BHS Acquisitions, LLC. In
November 2008, we entered into an agreement with BHS Acquisitions, LLC, or BHS,
for the supply of hydrochloric acid, or HCl, for use in the Project. The term of
the agreement is eight years beginning on the date on which the first shipment
of product is delivered to us. Each year during the term of the agreement, BHS
has agreed to sell to us, and we have agreed to purchase from BHS, specified
volumes of HCl that meet certain purity specifications. The volume is fixed
during each of the eight years. Pricing is fixed for the first twelve months of
shipments, which are scheduled to begin within four months after we provide
written notice to BHS, and the aggregate net value of the HCl to be purchased by
us under the agreement in the first twelve months is approximately $2.4 million.
Pricing is to be renegotiated for each of the remaining years of the agreement;
however, if the parties are unable to agree on pricing for any future year, then
either party may terminate the agreement without liability to the other party.
Either party may also terminate the agreement under certain circumstances,
including a material breach by the other party that has not been cured within a
specified cure period, or the other party’s voluntary or involuntary
liquidation. As of December 31, 2009, we had not provided notice to BHS to
commence shipments, and had not made any payments to BHS.
Operating
Capital and Capital Expenditure Requirements
As we
invest resources towards our polysilicon manufacturing and PV systems
installation service businesses, develop our products, expand our corporate
infrastructure, prepare for the increased production of our products and
evaluate new markets to grow our business, we expect that our expenses will
continue to increase and, as a result, we will need to generate significant
revenue to achieve profitability.
As of
December 31, 2009, we had cash and cash equivalents on hand of $3.2 million and
current liabilities of $76.8 million. Our cash, $50 million in debt from our
financing transaction with Tianwei and $55 million in additional prepayments
from our existing customers, will be used to pay current liabilities
and complete construction of the Project to the point where we can commence
initial shipments to customers. Until such time, we intend to delay
seeking the additional financing of $71 million which is necessary to complete
the construction of the Project.
We do not
expect to generate significant revenue until we successfully commence the
manufacture and shipment of polysilicon and begin meeting the obligations under
our supply contracts. In addition, we will still need to seek additional
financing to complete the Project. If we are unable to secure additional
long-term supply contracts and prepayments, assuming the cost to construct and
equip the Project does not exceed $390 million, we are able to amend our
contract with Wuxi Suntech Power Co., Ltd. under similar terms, and if
all of our other customers make their prepayments when due, the amount we will
need to raise could be as much as $71 million. If we are unable to
secure additional long-term supply contracts and prepayments, if for any reason
(e.g. contract amendment, termination, breach, etc.) one or more of our
polysilicon supply customers do not pay the full amount of the prepayments to
which they are presently committed and/or if the actual cost to complete the
Project is more than $390 million, the amount we will need to raise could exceed
$71 million. Furthermore, if there is a delay in receiving the
additional $50 million in debt from the Tianwei transaction, or we do not
receive our anticipated prepayments from our customers, or other unfavorable
factors occur, it could raise substantial doubt about our ability to continue as
a going concern. The inability to continue as a going concern could result in an
orderly wind-down of us or other potential forms of restructuring.
The sale
of additional equity and convertible debt instruments may result in additional
dilution to our current stockholders. If we raise additional funds through the
issuance of convertible debt securities, these securities could have rights
senior to those of our common stock and could contain covenants that would
restrict our operations. We may require additional capital beyond our currently
forecasted amounts. Any required additional capital may not be available on
reasonable terms, if at all. If we are unable to obtain additional financing, we
may be required to reduce the scope of, delay or eliminate some or all of our
planned research, development and commercialization and manufacturing
activities, which could harm our business. Our forecasts of the
period of time through which our financial resources will be adequate to support
our operations are forward-looking statements and involve risks and
uncertainties. Actual results could vary as a result of a number of factors,
including the factors discussed in Part II, Item 1.A. “Risk Factors” and the
section above entitled “Forward-Looking Statements.”
25
Critical
Accounting Policies and Significant Judgments and Estimates
Our
management’s discussion and analysis of our financial condition and results of
operations are based on our unaudited consolidated financial statements, which
have been prepared in accordance with U.S. generally accepted accounting
principles for interim financial statements and the instructions to Form 10-Q
and Regulation S-X. The preparation of these unaudited consolidated financial
statements requires us to make estimates and assumptions relating to the
reported amounts of assets and liabilities and the disclosure of contingent
assets and liabilities at the date of the financial statements as well as the
reported amounts of revenue and expenses during the reporting periods. We
evaluate our estimates and judgments on an ongoing basis. We base our estimates
on historical experience and on various other factors that we believe are
reasonable under the circumstances, the results of which form the basis for
making judgments about the carrying value of assets and liabilities that are not
readily apparent from other sources. Actual results may differ from these
estimates.
While our
significant accounting policies are more fully described in Note 1 to the
unaudited consolidated financial statements included in this Quarterly Report on
Form 10-Q and Note 1 to the audited financial statements included in our Annual
Report on Form 10-K, filed with the Securities and Exchange Commission on June
15, 2009, we believe that the following accounting policies and estimates are
critical to a full understanding and evaluation of our reported financial
results.
Revenue Recognition. Revenue
from polysilicon and PV system installations is recognized when there
is evidence of an arrangement, delivery has occurred or services have been
rendered, the arrangement fee is fixed or determinable, and collectability of
the arrangement fee is reasonably assured. PV system installation contracts may
have several different phases with corresponding progress billings, however,
revenue is recognized when the installation is complete and accepted by the
customer.
We have
also provided testing and engineering services to customers pursuant to
milestone-based contracts that are not multi-element arrangements. These
contracts sometimes provided for periodic invoicing upon completion of
contractual milestones. Customer acceptance is usually required prior to
invoicing. We recognized revenue for these arrangements under the completed
contract method. Under the completed-contract method, we defer the
contract fulfillment costs and any advance payments received from the customer
and recognize the costs and revenue in our statement of operations once the
contract is complete and the final customer acceptance, if required, has been
received.
Revenue
from the sale of electricity generated from our PV systems is based on kilowatt
usage and is recognized in accordance with our power purchase agreements, or
PPAs.
Stock-Based Compensation. We
account for stock-based employee compensation arrangements using the fair value
method, in which the fair value of stock options and/or restricted stock awards
granted to our employees and non-employees is determined using the Black-Scholes
pricing model. The Black-Scholes pricing model requires the input of several
subjective assumptions including the expected life of the option/restricted
stock award and the expected volatility of the option/restricted stock award at
the time the option/restricted award is granted. The fair value of our
option/restricted award, as determined by the Black-Scholes pricing model, is
expensed over the requisite service period, which is generally five years for
stock options and varies between two and five years for restricted stock
awards.
The
assumptions used in calculating the fair value of our stock options and
restricted stock awards represent management’s best estimates, but these
estimates involve inherent uncertainties and the application of management
judgment. As a result, changes in these inputs and assumptions can materially
affect the measure of the estimated fair value of our stock options and
restricted stock awards. In addition, we are required to estimate the expected
forfeiture rate and only recognize expense for those options and shares expected
to vest. If our actual forfeiture rate is materially different from our
estimate, the stock-based compensation expense could be significantly different
from what we have recorded in the current period. Furthermore, this accounting
estimate is reasonably likely to change from period to period as further stock
options and restricted stock awards are granted and adjustments are made for
stock option and restricted stock awards forfeitures and cancellations. We do
not record any deferred stock-based compensation on our balance sheet for our
stock options and restricted stock awards.
Off-Balance
Sheet Arrangements
None
Item
3.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
|
The
primary objective of our investment activities is to preserve our capital for
the purpose of funding our operations. To achieve this objective, our investment
policy allows us to maintain a portfolio of cash equivalents and short-term
investments in a variety of securities, including commercial paper, auction
instruments, corporate and government bonds and certificates of deposit. These
investments are generally short-term in nature and highly liquid. As
of December 31, 2009, we did not maintain any short-term
investments. Our cash and cash equivalents as of December 31, 2009
were $3.2 million.
All of
our contracts are denominated in U.S. dollars, except for our contracts with GEC
and MSA which are denominated in Euros. As a result of the early settlement of
our Euros purchase agreements, we no longer maintain any investment in Euros,
nor are we a party to any agreements to purchase Euros at certain dates in the
future. Accordingly, we are subject to the then current spot rate
between the US dollar and the Euro at such time that a payment is required under
the GEC and MSA contracts.
26
Item
4.
|
CONTROLS
AND PROCEDURES
|
Evaluation of Disclosure Controls
and Procedures. As of the end of the period covered by this report, we
carried out an evaluation, under the supervision and with the participation of
our management, including our Chief Executive Officer and Chief Financial
Officer, of the effectiveness of the design and operation of our disclosure
controls and procedures (as defined in the Securities Exchange Act Rules
13a-15(e) and 15d-15(e)). Based on that evaluation, our Chief
Executive Officer and Chief Financial Officer concluded that as of the end of
the period covered by this report, our disclosure controls and procedures were
effective to ensure that information required to be disclosed by us in reports
we file or submit under the Exchange Act is (1) recorded, processed, summarized
and reported within the time periods specified in SEC rules and forms, and (2)
accumulated and communicated to our management, including our Chief Executive
Officer and Chief Financial Officer, to allow timely decisions regarding
required disclosure.
Changes in Internal Control over
Financial Reporting. There were no changes in our internal
controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f)
under the Securities Exchange Act of 1934) that occurred during the period
covered by this report that have materially affected, or are reasonably likely
to materially affect, our internal control over financial
reporting.
27
PART
II—OTHER INFORMATION
Item
1.
|
LEGAL
PROCEEDINGS
|
From time
to time we may be involved in litigation relating to claims arising out of our
operations. We are not currently involved in any material legal
proceedings.
ITEM
1A.
|
RISK
FACTORS
|
In
addition to the risks discussed in Part I, Item 2, “Management’s Discussion and
Analysis of Financial Condition and Results of Operations,” our business is
subject to the risks set forth below.
Risks
Associated With Our Business
If there is any further delay in
receiving the remaining $30 million of our $50 million loan agreement with
Tianwei, or we are unable to secure adequate funds on terms acceptable to us, we
will be unable to support our business requirements, build our business or
continue as a going concern.
As of
December 31, 2009, we had cash and cash equivalents on hand of $3.2 million and
short term liabilities of $76.8 million. In September 2009, we entered into a
definitive agreement providing for a majority investment in us by Tianwei New
Energy Holdings Co., Ltd., or Tianwei, and debt financing by Tianwei through
China Construction Bank, as agent, for the construction and development of the
Project. In December 2009, the investment transaction was completed
and we issued to Tianwei 33,379,287 newly-issued shares of our common stock,
representing approximately 60% of our fully-diluted outstanding shares. Tianwei
is restricted from transferring directly or indirectly 23,365,501, or 70%, of
the newly-issued shares to any third party until the first anniversary of the
closing date of the agreement. We also granted to Tianwei a warrant
to purchase an additional 10,000,000 shares of our common stock. The terms of
the warrant include: (i) a per share exercise price equal to $2.52; (ii) an
exercise period of seven years; and (iii) provision for a cashless, net-issue
exercise.
The
existing polysilicon supply agreements with Tianwei were amended such that $50
million of an aggregate of $79 million in secured prepayments previously paid by
Tianwei to us was converted into the 33,379,287 newly-issued shares
of our common stock. The amended supply agreements also provide for a
reduced price at which Tianwei purchases polysilicon by approximately 11% in
each year of the ten year agreement. Tianwei is also obligated to loan us $50
million through China Construction Bank, as agent, payable in two
tranches. In January 2010, we received the first tranche of $20
million and expect to receive the second tranche of $30 million in February
2010. Pursuant to the loan agreement, we have pledged a security
interest in all of our assets to Tianwei. Tianwei has also agreed to use its
reasonable best efforts to assist us in obtaining additional financing that may
be required by us to construct and operate the Project.
The $50
million in debt, plus $55 million in additional prepayments from our existing
customers, will be used to pay current liabilities and complete
construction of the Project to the point where we can commence initial shipments
to customers. Until such time, we intend to delay seeking the
additional financing of $71 million which is necessary to complete the
construction of the Project. On the basis of these funding sources, we expect to
complete our reactor demonstration in the fourth quarter of fiscal 2010 and
begin polysilicon production in the first quarter of fiscal
2011. However, if there is a delay in receiving the second tranche of
$30 million in debt from the Tianwei transaction, or other unfavorable factors
occur, we may need to curtail Project construction.
We do not
expect to generate significant revenue until we successfully commence the
manufacture and shipment of polysilicon and begin meeting the obligations under
our supply contracts. We also will need to seek additional financing
to complete construction of the Project. If we are unable to generate revenue or
secure adequate additional financing when needed, we will be forced to further
reduce expenditures in order to continue as a going concern. Reduction of
expenditures could have a material adverse effect on our business. The amount
and timing of our future capital needs depend on many factors, including the
timing of our development efforts, opportunities for strategic transactions, and
the amount and timing of any revenues we are able to generate. Given our current
business strategy, however, we will need to secure additional financing in order
to execute our plans and continue our operations. If there is any delay in
receiving the second tranche of $30 million in debt from the Tianwei
transaction, or if we are unable to raise additional financing to complete the
Project, our business will be materially and adversely harmed.
Over the
next twelve months, we may have insufficient cash to meet all of our obligations
as they come due. We have modified payment terms in purchase orders with more
than sixty of our vendors to structure payment plans for amounts past due and to
be invoiced in the future. In the event we are unable to meet our obligations
under payment plans and other agreements, we will have to ask our vendors to
forebear from enforcing one or more of their rights under their respective
agreements. There are no assurances that any of our vendors will
agree to forebear or otherwise make any concessions under their respective
agreements. If any of our vendors seek to enforce their rights under
these agreements that we are unable to perform, which could include asserting
and/or foreclosing on materialmen’s and laborer’s liens on the Project, or
taking other legal action, it could materially harm our business, financial
condition and results of operations and we may be forced to delay, alter or
abandon our planned business operations, which could have a material adverse
effect on our ability to continue as a going concern.
28
There are
no assurances that we will be successful in executing any of the foregoing
alternatives. If we are unable to raise additional capital and manage our
liquidity, there is substantial doubt that we will be able to continue as a
going concern through at least December 31, 2010. The inability to continue as a
going concern could result in an orderly wind-down of our business or other
potential forms of restructuring.
Our
independent registered public accounting firm’s report on our fiscal 2009
financial statements questions our ability to continue as a going
concern.
Our
independent registered public accounting firm’s report on our financial
statements for each of the three years in the period ended March 31, 2009,
expresses doubt about our ability to continue as a going concern. Their report
includes an explanatory paragraph stating that there is substantial doubt about
our ability to continue as a going concern due to the lack of sufficient
capital, as of the date their report was issued, to support our business
plan.
We will
need to secure additional financing in the future and if we are unable to secure
adequate funds at the times needed and on terms acceptable to us, we will be
unable to support our business requirements, build our business or continue as a
going concern. Accordingly, we can offer no assurance that the actions we plan
to take to address these conditions will be successful. The inclusion of a
“going concern modification” in the report of our independent accountants, in
and of itself, may have a material adverse effect on our ability to obtain
financing and to conduct our business generally, which could have a material
adverse effect on our stock price.
We
need at least $390 million to construct and equip the Project, and we may be
unable to raise this amount of capital on favorable terms or at
all.
Our
planned entry into the polysilicon market will require us to spend significant
sums to support the construction of the Project, to purchase capital equipment,
to fund new sales and marketing efforts, to pay for additional operating costs
and to significantly increase our headcount. As a result, we expect our costs to
increase significantly, which will result in further losses before we can begin
to generate significant operating revenue from our Hoku Materials
division.
Based on
our polysilicon supply agreements with our customers, we plan to equip and
construct the Project, with a production capacity of 4,000 metric tons of
polysilicon per year. Our original estimated actual construction cost for a
facility capable of producing 3,500 metric tons of polysilicon per year was $390
million; however, we have not yet determined what, if any, additional cost
associated with the increase in our planned production output from 3,500 to
4,000 metric tons per year will be, and we continue to review our construction
cost estimates. Our estimates are based on our discussion with vendors,
declining costs of materials and labor and ongoing adjustments of certain design
elements; however, changes in costs, modifications in construction timelines and
other factors could significantly increase the actual costs.
We plan
on funding the remaining construction costs through customer prepayments and/or
through debt or equity financing, including $50 million from our loan agreement
and the $50 million equity contribution through our investment with Tianwei. As
of December 31, 2009, we had received $123.0 million in customer prepayments
under our supply contracts and expect to receive an additional $55.4 million in
customer prepayments. As of December 31, 2009, we had also contributed an
additional approximately $41 million to the construction cost of the
Project.
We have
experienced delays in the receipt of customer prepayments from certain of our
long-term polysilicon supply customers. If we experience further delays in
receipt of these payments, receive reduced payments, or fail to receive any of
them entirely, or if there is any delay in receiving the remaining $30 million
of our $50 million loan agreement with Tianwei, we could experience delays in
our ability to continue the engineering, construction, and procurement of the
Project in order to deliver polysilicon in the first quarter of fiscal 2011, or
within the time periods specified in our customer supply contracts, which could
materially harm our business. Even if we receive these prepayments on time and
in the amounts agreed upon, the actual costs to engineer, construct, and procure
the Project could exceed our estimates, and we may be unable to raise any
additional funding required to pay for any such added costs. If we
are unable to begin producing polysilicon by the first quarter of fiscal 2011
and meet our customer commitments, our business will be materially harmed and we
may be forced to delay, alter or abandon our planned business
operations.
If we are
unable to raise capital and manage our liquidity, there is substantial doubt
that we will be able to continue as a going concern through at least December
31, 2010. The inability to continue as a going concern could result in an
orderly wind-down of our business or other potential forms of
restructuring.
The
actual cost to construct and equip the Project may be significantly higher than
our estimated cost.
Our
estimate of $390 million to construct and equip the Project is based on our
discussion with vendors, declining costs of materials and labor and ongoing
adjustments of certain design elements; however, changes in costs, modifications
in construction timelines and other factors could cause our actual cost to
significantly exceed our estimate. If the actual cost is significantly higher
than we estimate, it could materially and adversely affect our ability to raise
capital, to complete the Project on schedule or at all, and could materially
harm our business, financial condition and results of operations and we may be
forced to delay, alter or abandon our planned business
operations.
29
Any
slowdown of construction and procurement at the Project increases the risk that
we will not meet certain construction and delivery milestones in our long-term
polysilicon supply contracts.
The
inability to resume and accelerate construction and procurement at the Project
increases the likelihood that we will be unable to meet certain construction and
delivery milestones in our long-term polysilicon contracts, which could cause a
termination of one or more of our polysilicon supply contracts and the
corresponding right to seek a refund of any prepayments made as of the date of
termination. Any such termination could have a material adverse
effect on our financial condition and results of operations.
Assuming
the cost to complete the Project is $390 million, and assuming all of our
polysilicon customers honor their commitments to make timely prepayments, we
will still need to raise capital through one or more debt or equity offerings to
complete construction of the Project.
Assuming
that the total actual cost to construct and equip the Project is $390 million,
that we are successful in receiving all customer prepayments that are presently
committed to us when due, that we are able to amend our contract with Wuxi
Suntech Power Co., Ltd.
under similar terms and that we receive the remaining $30 million of our
$50 million loan agreement with Tianwei, we believe we will need to raise as
much as $71 million through a combination of new customer prepayments, debt
and/or equity to complete Project construction. If we are unable to
secure additional long-term supply contracts and prepayments, if for any reason
(e.g. contract amendment, termination, breach, etc.), or one or more of our
polysilicon supply customers do not pay the full amount of the prepayments to
which they are presently committed and/or if the actual cost to complete the
Project is more than $390 million, the amount we will need to raise could exceed
$71 million. Furthermore, if there is any delay in receiving the
remaining $30 million in debt from the Tianwei transaction, or other unfavorable
factors occur, it could raise substantial doubt about our ability to continue as
a going concern through at least December 31, 2010.
There are
no assurances that we will be able to secure any additional debt or equity
financing on favorable terms, at the time such financing is needed, or at all.
If we are unable to secure adequate debt or equity financing to complete
construction of the Project in time to meet certain milestones and/or to meet
our customer commitments, our business will be materially harmed and we may be
forced to delay, alter or abandon our planned business operations, which could
have a material adverse effect on our ability to continue as a going concern.
The inability to continue as a going concern could result in an orderly
wind-down of our business or other potential forms of
restructuring.
We
have a limited operating history and, in calendar year 2006, determined to enter
the photovoltaic system installation and polysilicon markets and to redirect
efforts and resources that were historically directed toward the fuel cell
market. If we are unable to generate significant revenue from our photovoltaic
system installations and polysilicon segments, our business will be materially
harmed.
We were
incorporated in March 2001 and have a limited operating history. We have
cumulative net losses since our inception through December 31, 2009. In calendar
year 2006, we announced a change in our main business and our intention to form
a polysilicon business through our subsidiary, Hoku Materials, and a
photovoltaic, or PV, system installation business through our subsidiary Hoku
Solar. The polysilicon business includes developing production capabilities for,
and the eventual production of polysilicon. The PV systems installation business
includes the design, engineering, procurement and installation of turnkey PV
systems for residential and commercial customers. Prior to our announcement, our
business was solely focused on the stationary and automotive fuel cell markets.
We do not expect to generate any material revenue from Hoku Fuel Cells in the
foreseeable future, and Hoku Materials does not currently generate any operating
revenue.
We have
no prior experience in the polysilicon business. In order to be successful, we
are devoting substantial management time and energy and significant capital
resources to developing this new business, including the construction of the
Project. We commenced construction in May 2007, and expect to begin producing
polysilicon beginning in the first quarter of fiscal 2011, with full-scale
production to begin in the second half of fiscal 2011; however, there are no
assurances that this schedule will not need to be further modified. We may need
to purchase polysilicon from third parties in order to meet delivery schedules
in order to avoid termination of one or more of our customer supply
contracts. In addition, any delays beyond the first quarter of fiscal
2011 could result in the termination of a customer supply contracts, which would
require us to refund substantial amounts of cash that have been paid to us as
prepayments for future product deliveries. We have encountered, and expect that
we will continue to encounter, significant risks relating to our entering into
the polysilicon industry and changes in that industry, including potentially
significant increases in polysilicon supply and falling polysilicon prices. If
we are unable to address these risks and other risks successfully, our business,
financial condition and results of operations will be materially and adversely
affected.
If
any of our Project engineering, construction, or key equipment vendors are late
in providing their contract deliverables, we may be unable to complete the
construction of the Project to begin commercial shipments in the first quarter
of fiscal 2011, or at all, which could materially harm our
business.
We have
contracts with Stone & Webster, Inc., JH Kelly, LLC, GEC Graeber Engineering
Consultants GmbH and MSA Apparatus Construction for Chemical Equipment, Ltd.,
Idaho Power Company, Dynamic Engineering Inc., AEG Power Solutions USA Inc.,
formerly known as Saft Power Systems USA, Inc., PVA Tepla Danmark, Polymet
Alloys, Inc., BHS Acquisitions, LLC and our other vendors, contractors and
consultants who are providing key services, equipment, and supplies for the
engineering, construction and procurement of the Project. If we experience
delays in the performance or delivery of the services, equipment, and goods
under these respective agreements, we may be unable to commence production of
polysilicon in the first quarter of fiscal 2011, to ramp-up production and
commence commercial shipments in fiscal 2011, or deliver the volume of
polysilicon that is required under our polysilicon supply
agreements.
30
If
we are unable to secure adequate quantities of trichlorosilane on favorable
terms and at the times needed, our business will be materially
harmed.
We have
decided to defer approximately $40 million in capital expenditures by delaying
construction of our on-site trichlorosilane, or TCS, production facility. TCS is
needed to produce polysilicon. We have received shipments of small
volumes of TCS from two suppliers for our production demonstration, and are in
discussions with these third-party TCS producers for higher volume TCS supply
contracts to enable us to execute on this strategy. There are no assurances,
however, that we will be able to secure adequate TCS at the time and in the
amounts needed on favorable terms, or at all. If we are unable to secure
adequate TCS on favorable terms and at the times needed, we may be unable to
meet certain milestones in our customer contracts or to meet our customer supply
commitments and our business, financial condition and results of operations will
be materially harmed.
We
may have difficulty managing changes in our operations, which could harm our
business.
To date
we have expended significant financial and management resources in connection
with our planned entry into the polysilicon market and the development of our PV
system installation business. For example, in May 2007, we commenced
construction of the Project. Construction of the Project and the operation of
the polysilicon manufacturing and PV system installation businesses will involve
substantial changes to our operations and place a significant strain on our
senior management team and financial and other resources, and will, among other
things, require us to significantly increase our international activities; hire
and train additional financial, accounting, sales and marketing personnel; and
make substantial investment in our engineering, logistics, financial and
information systems, including implementing new enterprise-level transaction
processing, operational and financial management information systems, procedures
and controls.
Any
failure by us to manage the expansion of our operations or succeed in these
markets or other markets that we may enter in the future, may harm our business,
prospects, financial condition and results of operations.
If
our supply agreement with Wuxi Suntech Power Co., Ltd. is terminated for any
reason, our business will be materially harmed .
In May
2008, we amended our polysilicon supply agreement, or the Amended
Suntech Supply Agreement, with Wuxi Suntech Power Co., Ltd, or Suntech. Under
the Amended Suntech Supply Agreement, up to approximately $678 million may be
payable to us during the ten-year period, subject to the achievement of certain
milestones, the acceptance of product deliveries and other conditions. Pursuant
to the Amended Suntech Supply Agreement, we granted to Suntech a security
interest in all of our tangible and intangible assets related to our polysilicon
business to serve as collateral for our obligations under the Amended Suntech
Supply Agreement. These security interests are pari-passu with the security
interests granted to our other five long-term supply customers. The customer
security interests provide that they would be junior to the collateral interest
of any lender providing debt financing for Project construction. In July 2009,
we entered into an amendment to the Amended Suntech Supply Agreement which
became effective in December 2009 when the investment transaction with Tianwei
was completed and Tianwei became our majority shareholder. Under the
amendment Suntech agreed to waive the following rights:
|
·
|
Its
right to enforce our obligation to complete the Test Demonstration (as
defined in the Suntech Supply Agreement) by September 30, 2009, or the
Demo Final Date. Suntech’s waiver expired on December 31, 2009,
and Suntech may assert that we are in breach of our obligation to complete
the Test Demonstration.
|
|
·
|
Its
right to enforce our obligation to complete the TCS Demonstration (as
defined in the Suntech Supply Agreement) by December 31, 2009, or the TCS
Final Date. Suntech’s waiver will expire on December 31, 2010,
with the result that if we have not completed the TCS Demonstration by
that date, we will be in breach of our obligation to complete the TCS
Demonstration.
|
|
·
|
Its
right to enforce our obligation to complete the Shipment Milestone (as
defined in the Suntech Supply Agreement) by December 31, 2009, or the
Shipment Final Date. Suntech’s waiver will expire on March 31,
2010, with the result that if we have not completed the Shipment Milestone
by that date, we will be in breach of our obligation to complete the
Shipment Milestone.
|
In
exchange for the Suntech waivers described above, we agreed to waive our right
to payment of the TCS Demonstration Installment and, as a result, Suntech is no
longer required to make $15 million in additional prepayments. In
addition, we authorized Suntech to replace its $45 million Stand-by Letter of
Credit with a $30 million stand-by letter of credit issued by a bank in China,
which may be collateralized with non-cash assets.
As of
December 31, 2009, we had not completed the Test Demonstration, and as a result
Suntech could assert that we are in breach, and seek to terminate the Amended
Suntech Supply Agreement. If the agreement is terminated
our business will be materially harmed. In addition, we will be
required to return the $2 million in prepayments which we have received from
Suntech and we will need to secure an additional $32 million in funds in order
to finance the construction of the Project. We are in discussions with Suntech
to further amend the contract and have not been given any indication that
Suntech intends to terminate the contract. However, if the contract
is terminated, securing new funds may delay the anticipated timing of completion
of the Project, which delay may result in us failing to meet our delivery
requirements under our other supply agreements. We may not be able to secure new
funds on terms as favorable to us as those under the Amended Suntech Supply
Agreement or at all. If we are unable to secure new funds, we will not be able
to complete construction of the Project, our business will be materially harmed
and we may be forced to delay, alter or abandon our planned business
operations.
31
If
our supply agreement with Solarfun Power Hong Kong Limited is terminated for any
reason, our business will be materially harmed.
In May
2008, we and Solarfun Power Hong Kong Limited, or Solarfun, a subsidiary of
Solarfun Power Holdings Co., Ltd., or Solarfun Holdings, entered into a Second
Amended and Restated Supply Agreement, or the Solarfun Supply Agreement,
pursuant to which we have agreed to sell to Solarfun, and Solarfun has agreed to
purchase from us, specified quantities of polysilicon over a ten-year
period. In March 2009, we entered into Amendment No. 2 to the Second
Amended and Restated Solarfun Supply Agreement with Solarfun, or Solarfun
Amendment No. 2. Under Solarfun Amendment No. 2, up to approximately $384
million may be payable to us over a ten year period. Pursuant to the Solarfun
Supply Agreement and Solarfun Amendment No. 2, we granted to Solarfun a security
interest in all of our tangible and intangible assets related to our polysilicon
business to serve as collateral for our obligations under the Solarfun Supply
Agreement and Solarfun Amendment No. 2. These security interests are pari-passu
with the security interests granted to our other five long-term supply
customers. The customer security interests provide that they would be junior to
the collateral interest of any lender providing debt financing for plant
construction.
In
November 2009, we entered into a third amendment to the Solarfun Agreement, or
Solarfun Amendment No. 3, which became effective in December 2009, when Solarfun
paid us $8 million of the $13 million prepayment balance that was past
due. Under Solarfun Amendment No. 3, we agreed that Solarfun could
pay us the $13 million that was due in July and October 2009, in increments of
$8 million, which was paid in December 2009, $4 million to be paid in March
2010, and $1 million to be paid when we commence the shipment of polysilicon to
Solarfun. The balance of $5 million that was payable in January 2010,
is to be paid in equal monthly increments of $1 million during each of the five
subsequent months after the month of the first shipment.
Each
party may elect to terminate the Solarfun Supply Agreement, Solarfun Amendment
No. 2 and Solarfun Amendment No. 3 under certain circumstances, including, but
not limited to:
•
|
the
bankruptcy, assignment for the benefit of creditors or liquidation of the
other party; or
|
•
|
the
insolvency of the other party; or
|
•
|
a
material breach of the other party.
|
Solarfun
may also terminate the Solarfun Supply Agreement, Solarfun Amendment No. 2 and
Solarfun Amendment No. 3 if we fail to deliver a predetermined quantity of
polysilicon product by June 30, 2010. There is a material risk that
we will not meet this delivery milestone. In addition, in the
instance of extraordinary events, including events of force majeure and other
events outside of our control, which result in our inability to perform under
the terms of the Second Amended and Restated Solarfun Supply Agreement, as
amended by Solarfun Amendment No. 2 and Solarfun Amendment No. 3, we are
afforded only a limited amount of time to cure such conditions. In the event we
fail to cure the condition so that we can supply our product to Solarfun or
otherwise satisfy our delivery requirements by delivering to Solarfun
third-party polysilicon purchased in the open market, Solarfun may terminate the
Solarfun Supply Agreement, Solarfun Amendment No. 2 and Solarfun Amendment No.
3.
If the
Solarfun Supply Agreement, Solarfun Amendment No. 2 and Solarfun Amendment No. 3
are terminated for any reason, our business will be materially harmed. In
addition, if Solarfun Supply Agreement, Solarfun Amendment No. 2 and Solarfun
Amendment No. 3 are terminated by Solarfun, we will be required to
return any deposits and advance payments received up to the date of the
termination, which was $37 million as of December 31, 2009, and we will need to
secure new funds in order to finance the construction of the Project. Securing
new funds may delay the anticipated timing of completion of the Project, which
delay may result in us failing to meet our delivery requirements under our
polysilicon supply agreements. We may not be able to secure new funds on terms
as favorable to us as those under the Solarfun Supply Agreement, Solarfun
Amendment No. 2 and Solarfun Amendment No. 3, or at all. If we are unable to
secure new funds, we will not be able to complete construction of the Project,
our business will be materially harmed and we may be forced to delay, alter or
abandon our planned business operations.
If
our supply agreement with Jiangxi Jinko Solar Co., Ltd. is terminated for any
reason, our business will be materially harmed.
In
February 2009, we entered into an Amended & Restated Supply Agreement with
Jiangxi Jinko Solar Co., Ltd., or the Jinko Supply Agreement. Under the Jinko
Supply Agreement, up to approximately $119 million may be payable to us during a
ten-year period, subject to product deliveries and other conditions. Pursuant to
the Jinko Supply Agreement, we granted to Jinko a security interest in all of
our tangible and intangible assets related to our polysilicon business to serve
as collateral for our obligations under the Jinko Supply Agreement. These
security interests are pari-passu with the security interests granted to our
other five long-term supply customers. The customer security interests provide
that they would be junior to the collateral interest of any lender providing
debt financing for Project construction.
In
November 2009, we entered into Amendment No. 1 to Amended & Restated Supply
Agreement with Jinko, or the Amended Jinko Supply Agreement. Pursuant
to the Amended Jinko Supply Agreement, we agreed with Jinko to eliminate the
first year of shipments under the Jinko Agreement, such that our first delivery
of polysilicon products to Jinko is now due in December 2010, and the term of
the Jinko Supply Agreement has been shortened to nine years, resulting in the
total volume of polysilicon to be sold by us to Jinko being reduced to
approximately $106 million, subject to product deliveries and other
conditions.
32
Each
party may elect to terminate the Amended Jinko Supply Agreement under certain
circumstances, including, but not limited to:
• the
bankruptcy, assignment for the benefit of creditors or liquidation of the other
party; or
• the
insolvency of the other party; or
• a
material breach of the other party.
Jinko may
also terminate the agreement if we fail to deliver a predetermined quantity of
our polysilicon product by December 31, 2010. Although we have the ability to
meet this milestone by delivering product that is manufactured by a third party,
there is a material risk that we will not meet this delivery milestone. In
addition, in the instance of extraordinary events, including events of force
majeure and other events outside of our control, which result in our inability
to perform under the terms of the Amended Jinko Supply Agreement, we are
afforded only a limited amount of time to cure such conditions. In the event we
fail to cure the condition so that we can supply our product to Jinko or
otherwise satisfy our delivery requirements by delivering to Jinko third-party
polysilicon purchased in the open market, Jinko may terminate the Amended Jinko
Supply Agreement.
If the
Amended Jinko Supply Agreement is terminated for any reason, our business will
be materially harmed. In addition, if the Amended Jinko Supply Agreement is
terminated by Jinko, we will be required to return any deposits and advance
payments received up to the date of the termination, which was $20 million as of
December 31, 2009, and we will need to secure new funds in order to finance the
construction of the Project. Securing new funds may delay the anticipated timing
of completion of the Project, which delay may result in us failing to meet our
delivery requirements under our other supply agreements. We may not be able to
secure new funds on terms as favorable to us as those under the Amended Jinko
Supply Agreement or at all. If we are unable to secure new funds, we will not be
able to complete construction of the Project, our business will be materially
harmed and we may be forced to delay, alter or abandon our planned business
operations.
If
either of our supply agreements with Tianwei New Energy (Chengdu) Wafer Co.,
Ltd. is terminated for any reason, our business will be materially
harmed.
In
September 2009, we entered into a definitive agreement providing for a majority
investment in us by Tianwei, and debt financing by Tianwei through China
Construction Bank, as agent, for the construction and development of the
Project. In December 2009, the investment transaction was completed
and the existing polysilicon supply agreements with Tianwei were amended such
that $50 million of an aggregate of $79 million in secured prepayments
previously paid by Tianwei to us was converted into 33,379,287
newly-issued shares of our common stock.
We
entered into Amendment and Restated Supply Agreement No. 1, or Tianwei Amendment
No. 1, with Tianwei for the sale and delivery of polysilicon to Tianwei over a
ten-year period. Under Tianwei Amendment No. 1, we converted
approximately $28 million of the total $44 million of prepayments previously
paid to us by Tianwei into shares of our common stock and reduced the price at
which Tianwei purchases polysilicon by approximately 11% per
year. The amount of polysilicon to be delivered remains unchanged and
Tianwei is still required to pay us an additional $1 million in prepayments;
however, the total revenue for the polysilicon to be sold by us to Tianwei has
been modified such that up to approximately $232 million may be payable to us
during the ten-year term (exclusive of amounts Tianwei may purchase pursuant to
its right of first refusal), subject to acceptance of product deliveries and
other conditions.
We also
entered into Amendment and Restated Supply Agreement No. 2, or Tianwei Amendment
No. 2, with Tianwei, for the sale and delivery of polysilicon to Tianwei over a
ten-year period. Under Tianwei Amendment No. 2, we converted
approximately $22 million of the total $35 million of prepayments previously
paid to us by Tianwei into shares of our common stock and reduced the price at
which Tianwei purchases polysilicon by approximately 11% per
year. The amount of polysilicon to be delivered remains unchanged and
Tianwei is still required to pay us an additional $1 million in prepayments;
however, the total revenue for the polysilicon to be sold by us to Tianwei has
been modified such that up to approximately $186 million may be payable to us
during the ten-year term (exclusive of amounts Tianwei may purchase pursuant to
its right of first refusal), subject to acceptance of product deliveries and
other conditions.
Each
party may elect to terminate either Tianwei Amendment No. 1 or Tianwei Amendment
No. 2, or the Tianwei Supply Agreements, under certain circumstances, including,
but not limited to:
• the
bankruptcy, assignment for the benefit of creditors or liquidation of the other
party; or
• the
insolvency of the other party; or
• a
material breach of the other party.
In
addition, in the instance of extraordinary events, including events of force
majeure and other events outside of our control, which result in our inability
to perform under the terms of either or both of the Tianwei Supply Agreements,
we are afforded only a limited amount of time to cure such
conditions. In the event we fail to cure the condition so that we can
supply our product to Tianwei or otherwise satisfy our delivery requirements by
delivering to Tianwei third-party polysilicon purchased in the open market,
Tianwei may terminate the respective Tianwei Supply Agreement.
33
If either
or both of the Tianwei Supply Agreements are terminated for any reason, our
business will be materially harmed. In addition, if Tianwei Amendment No. 1 is
terminated, we will be required to return any deposits and advance payments
received up to the date of the termination, which is $16 million as of December
31, 2009. If Tianwei Amendment No. 2 is terminated, we will be
required to return any deposits and advance payments received up to the date of
the termination, which is $13 million as of December 31, 2009. In the event of
the termination of either of the Tianwei Supply Agreements, we will need to
secure new funds in order to finance the construction of the Project. Securing
new funds may delay the anticipated timing of completion of the Project, which
delay may result in us failing to meet our delivery requirements under our other
supply agreements. We may not be able to secure new funds on terms as favorable
to us as those under the Tianwei Supply Agreements, or at all. If we are unable
to secure new funds, we will not be able to complete construction of the
Project, our business will be materially and adversely affected and we may be
forced to delay, alter or abandon our planned business operations.
If
our supply agreement with Wealthy Rise International, Ltd. is terminated for any
reason, our business will be materially harmed.
In April
2009, we entered into an Amended and Restated Supply Agreement, or the Amended
Solargiga Supply Agreement, with Wealthy Rise International, Ltd., or Solargiga,
pursuant to which up to approximately $136 million may be payable to us over a
ten-year period, subject to product deliveries and other
conditions. Pursuant to the Amended Solargiga Supply Agreement, we
granted to Solargiga a security interest in all of our tangible and intangible
assets related to our polysilicon business to serve as collateral for our
obligations under the Amended Solargiga Supply Agreement. These security
interests are pari-passu with the security interests granted to our other five
long-term supply customers. The customer security interests provide that they
would be junior to the collateral interest of any lender providing debt
financing for plant construction.
We have
granted Solargiga, an extension of time, or the Extension, to make an aggregate
of $13.2 million in prepayments that were payable in installments between June
and December 2009. Pursuant to the Extension, the date on which the
$13.2 million is due has been extended to the earlier of February 26, 2010, or
the date on which we and Solargiga enter into a definitive amendment to the
Agreement pursuant to which the schedule and conditions for Solargiga’s
prepayments could be adjusted.
Each
party may elect to terminate the Amended Solargiga Supply Agreement under
certain circumstances, including, but not limited to:
• the
bankruptcy, assignment for the benefit of creditors or liquidation of the other
party; or
• the
insolvency of the other party; or
• a
material breach of the other party.
Solargiga
may also terminate the agreement if we fail to deliver a predetermined quantity
of our polysilicon product by October 31, 2010. There is a material risk that we
will not meet this delivery milestone. In addition, in the instance of
extraordinary events, including events of force majeure and other events outside
of our control, which result in our inability to perform under the terms of the
Amended Solargiga Supply Agreement, we are afforded only a limited amount of
time to cure such conditions. In the event we fail to cure the condition so that
we can supply our product to Solargiga or otherwise satisfy our delivery
requirements by delivering to Solargiga third-party polysilicon purchased in the
open market, Solargiga may terminate the Amended Solargiga Supply
Agreement.
If the
Amended Solargiga Supply Agreement is terminated for any reason, our business
will be materially harmed. In addition, if the Amended Solargiga
Supply Agreement is terminated by Solargiga as a result of our failure to
deliver polysilicon in the amounts and by the dates required in the Amended
Solargiga Supply Agreement, we are required to refund to Solargiga all of the
prepayments made as of the date of such termination, which was $7 million as of
December 31, 2009, less any part of thereof that has been applied to the
purchase price of polysilicon delivered under the Amended Solargiga Supply
Agreement. Moreover, we will need to secure new funds in order to finance the
construction of the Project. Securing new funds may delay the anticipated timing
of completion of the Project, which delay may result in us failing to meet our
delivery requirements under our other supply agreements. We may not
be able to secure new funds on terms as favorable to us as those under the
Amended Solargiga Supply Agreement or at all. If we are unable to secure new
funds, we will not be able to complete construction of the Project, our business
will be materially harmed and we may be forced to delay, alter or abandon our
planned business operations.
If
our Agreement with Shanghai Alex New Energy Co., Ltd. is terminated for any
reason, our business will be materially harmed.
In
February 2009, we entered into a supply agreement with Shanghai Alex New Energy
Co., Ltd., or Alex, for the sale and delivery of polysilicon to Alex over a
ten-year period, or the Alex Supply Agreement. Under the Alex Supply Agreement,
approximately $119 million may be payable to us during a ten-year period,
subject to product deliveries and other conditions. Pursuant to the Alex Supply
Agreement, we granted to Alex a security interest in all of our tangible and
intangible assets related to our polysilicon business to serve as collateral for
our obligations under the Alex Supply Agreement. These security interests are
pari-passu with the security interests granted to our other five long-term
supply customers. The customer security interests provide that they would be
junior to the collateral interest of any lender providing debt financing for
Project construction.
In
December 2009, we entered into Amendment No. 1 to Supply Agreement with Alex, or
the Amended Alex Supply Agreement. Pursuant to the Amended Alex
Supply Agreement, we agreed with Alex to shift the date of first delivery of
polysilicon, such that our first delivery of polysilicon products to Alex is now
due in September 2010.
34
Each
party may elect to terminate the Alex Supply Agreement under certain
circumstances, including, but not limited to:
• the
bankruptcy, assignment for the benefit of creditors or liquidation of the other
party; or
• the
insolvency of the other party; or
• a
material breach of the other party.
Alex may
also terminate the agreement if we fail to deliver a predetermined quantity of
our polysilicon product by December 31, 2010. Although we have the ability to
meet this milestone by delivering product that is manufactured by a third party,
there is a material risk that we will not meet this delivery milestone. In
addition, in the instance of extraordinary events, including events of force
majeure and other events outside of our control, which result in our inability
to perform under the terms of the Amended Alex Supply Agreement, we are afforded
only a limited amount of time to cure such conditions. In the event we fail to
cure the condition so that we can supply our product to Alex or otherwise
satisfy our delivery requirements by delivering to Alex third-party polysilicon
purchased in the open market, Alex may terminate the Amended Alex Supply
Agreement.
If the
Amended Alex Supply Agreement is terminated for any reason, our business may be
materially and adversely affected. In addition, if the Amended Alex
Supply Agreement is terminated by Alex as a result of our failure to deliver
polysilicon in the amounts and by the dates required in the Amended Alex Supply
Agreement, we are required to refund to Alex all of the prepayments made as of
the date of termination, which was $20 million as of December 31, 2009, less any
part thereof that has been applied to the purchase price of polysilicon
delivered under the Alex Supply Agreement. Moreover, we will need to secure new
funds in order to finance the construction of the Project. Securing new funds
may delay the anticipated timing of completion of the Project, which delay may
result in us failing to meet our delivery requirements under our other supply
agreements. We may not be able to secure new funds on terms as
favorable to us as those under the Amended Alex Supply Agreement or at all. If
we are unable to secure new funds, we will not be able to complete construction
of the Project, our business will be materially and adversely affected and we
may be forced to delay, alter or abandon our planned business
operations.
Fluctuations
in industrial production capacity for polysilicon could harm our
business.
Certain
polysilicon producers have invested heavily in the expansion of their production
capacities in view of the recent scarcity of solar-grade polysilicon. We
currently expect significant additional capacity to come on-line in fiscal 2010,
near in time to when the Project is scheduled become fully operational. In
addition, if an excess supply of electronic-grade polysilicon were to develop,
producers of electronic-grade silicon could switch production to solar-grade
polysilicon, causing the price of solar-grade polysilicon to decline more
rapidly than we currently anticipate. The electronic-grade polysilicon market
historically has experienced significant cyclicality; for example, that market
experienced significant excess supply from 1998 through 2003. Moreover, the
forecasted increases in polysilicon supply could also be exacerbated if the
demand for polysilicon decreases significantly as a result of the introduction
of new technologies that materially reduce or eliminate the need for polysilicon
in producing effective PV systems.
If any of
these events occurred, they could result in an excess supply of solar-grade
polysilicon and could suppress market prices for solar-grade polysilicon. Any
such suppression of market prices for polysilicon would affect the price which
we could expect to receive in selling our polysilicon in the spot market and
could provide our customers with incentives to reconsider or renegotiate their
long-term supply contracts with us to the extent the polysilicon deliverable
under those contracts is priced above prevailing market prices. During fiscal
year 2009, spot market prices of polysilicon decreased dramatically with an
increase in supply, and further price declines are possible in fiscal 2010 as
additional supply is forecasted to enter the market. Further
decreases in demand and polysilicon prices could materially harm our business,
financial condition and results of operations.
Conversely,
in the past, industry-wide shortages of polysilicon have created shortages of PV
modules and increased prices for such modules. In the event of a polysilicon
shortage, any inability to obtain PV modules at commercially reasonable prices,
or at all, would adversely affect our PV system installation business by
reducing our ability to meet potential customer demand for our products or to
provide products at competitive prices. Any continued industry shortage in
available polysilicon could delay the potential growth of our PV system
installations business, thereby harming our business.
We
rely on limited suppliers and, if these suppliers fail to deliver materials that
meet our quality requirements in a timely, cost-effective manner or at all, our
production of polysilicon and our installation of PV systems would be
limited.
It is
highly likely that we will procure materials for our PV system installation
business from vertically integrated solar module manufacturing and installation
companies that are also our competitors. These companies may choose in the
future not to sell these materials to us at all, or may raise their prices to a
level that would prevent us from selling our goods and services on a profitable
basis.
In our
polysilicon business we rely heavily on our contracted suppliers of key process
technologies and infrastructure including such components as the reactors and
the TCS process. If any of these suppliers fail to perform their contractual
obligations, we will be required to seek alternative suppliers and likely will
not be able to commence production of polysilicon at the Project on our current
schedule. Any such production delays may result in a breach of one or more of
our supply agreements with Alex, Suntech, Solarfun, Jinko, Tianwei and/or
Solargiga and such breaches may allow these customers to terminate the supply
agreements and seek a return of prepayments, which would harm our business and
may make impossible the completion of the Project.
35
Even
if we achieve our polysilicon and PV system installation objectives on a timely
basis and complete the construction of the Project our polysilicon production
plant as currently planned, we may still be unsuccessful in developing,
producing and/or selling these products and services, which would harm our
business.
If we are
successful in our efforts to construct the Project, our ability to successfully
compete in the polysilicon and PV system installation markets will depend on a
number of factors, including:
•
|
our
ability to produce or procure TCS and polysilicon, and install PV systems
at costs that allow us to achieve or maintain profitability
in these
businesses;
|
•
|
our
ability to successfully manage a much larger and growing enterprise, with
a broader national and international
presence;
|
•
|
our
ability to attract new customers and expand existing customer
relationships;
|
•
|
our
ability
to develop new technologies to become competitive through cost
reductions;
|
•
|
our
ability to scale our business to be
competitive;
|
•
|
our
ability to predict and adapt to changing market conditions, including the
price of inputs and the spot price for polysilicon sold in themarket
by us or purchased by us from third-parties to settle customer
commitments; and
|
•
|
future
product liability or warranty
claims.
|
If
our PV system installation competitors are able to develop and market products
that customers prefer to our products, we may not be able to generate sufficient
revenue to continue operations.
The
market for PV systems installations is competitive and continually evolving. As
a new entrant to this market, we expect to face substantial competition from
companies such as SunPower Corporation, SunEdison, and other new and emerging
companies throughout many parts of the world. Many of our known competitors are
established players in the solar industry, and have a stronger market position
than ours and have larger resources and name recognition than we have.
Furthermore, the PV market in general competes with other sources of renewable
energy and conventional power generation.
Technological
development in the solar power industry could reduce market demand for
polysilicon or allow for lower cost production of polysilicon by our
competitors, which could cause our sales and profit to decline .
The solar
power industry is characterized by evolving technologies and standards.
Technological evolutions and developments in PV products, including thin-film
technologies, higher PV efficiency and thinner wafers may decrease the demand
for polysilicon by PV module manufacturers, and some manufacturers are
developing alternative solar technologies that require significantly less
silicon than crystalline silicon-based solar cells and modules, or no
polysilicon at all. If these developing technologies prove more advantageous in
application and are widely adopted, we may experience a decrease in demand for
our polysilicon and a decrease in our sales or operating margins.
Additionally,
other technologies for the production of polysilicon are increasing in
prevalence in the industry. Technologies which compete with the Siemens reactor
process, including fluidized bed reactor process, may enable the manufacture of
polysilicon more quickly or at lower cost than does the Siemens reactor process.
To the extent that our competitors adopt other technologies that enable them to
compete more effectively, our operating margins and price-competitiveness may be
impacted. In the event that we are unable to re-design the Project around these
more efficient processes on manageable timetables and at reasonable cost, our
business could be adversely affected.
Our
operating results have fluctuated in the past, and we expect a number of factors
to cause our operating results to continue to fluctuate in the future, making it
difficult for us to accurately forecast our quarterly and annual operating
results.
Hoku
Materials does not currently generate any operating revenue and we do not expect
to generate any material revenue from Hoku Fuel Cells in the foreseeable future.
All of our revenue presently is generated by Hoku Solar and our PV system
installation activities.
Our
future operating results and cash flows will depend on many factors that will
impact our polysilicon business run by Hoku Materials and, our PV system
installation business run by Hoku Solar, including the following:
• the
size and timing of customer orders, milestone achievement, product delivery and
customer acceptance, if required;
• the
length of contract negotiation cycles,
• the
timing of equipment delivery and procurement, integration and
testing,
36
•
|
our
success in obtaining prepayments from customers for future shipments of
polysilicon;
|
•
|
our
success in maintaining and enhancing existing strategic relationships and
developing new strategic relationships with potential customers;
|
•
|
our
ability to finance power purchase agreements for potential PV system
installation customers;
|
•
|
actions
taken by our competitors, including new product introductions and pricing
changes;
|
•
|
the
costs of maintaining our
operations;
|
•
|
customer
budget cycles and changes in these budget cycles;
and
|
•
|
external
economic and industry conditions.
|
As a
result of these factors, we believe that period-to-period comparisons of our
results of operations are not necessarily meaningful and should not be relied
upon as indications of future performance.
If
we fail to maintain proper and effective internal controls, our ability to
produce accurate financial statements could be impaired, which could adversely
affect our operating results, our ability to operate our business and investors’
views of us.
Ensuring
that we have adequate internal financial and accounting controls and procedures
in place to help ensure that we can produce accurate financial statements on a
timely basis is a costly and time-consuming effort that needs to be re-evaluated
frequently. In May 2007, we commenced construction of the Project. Construction
of the Project and the operation of our polysilicon manufacturing business and
PV system installation businesses will involve substantial changes to our
operations will require us to increase our international activities, hire and
train additional financial and accounting personnel, make substantial
investments in our engineering, logistics, financial and information systems,
including implementing new enterprise-level transaction processing, operational,
financial and accounting management information systems, procedures and
controls. In connection with the planned increased scale of our polysilicon
manufacturing business and PV system installation businesses and our
implementation of new operational and financial management information systems
to accommodate these businesses, we expect to engage in a process of
documenting, reviewing and improving our internal control and procedures in
connection with Section 404 of the Sarbanes-Oxley Act, which requires an annual
assessment by management on the effectiveness of our internal control over
financial reporting. We conduct annual testing of our internal controls in
connection with the Section 404 requirements and, as part of that documentation
and testing, we may identify areas for further attention and improvement.
Implementing any appropriate changes to our internal controls may entail
substantial costs in order to modify our existing accounting systems and take a
significant period of time to complete, and may distract our officers, directors
and employees from the operation of our business. Further, we may encounter
difficulties assimilating or integrating the internal controls, disclosure
controls and IT infrastructure of the businesses that we may acquire in the
future. These changes may not, however, be effective in maintaining the adequacy
of our internal controls, and any failure to maintain that adequacy, or
consequent inability to produce accurate financial statements on a timely basis,
could increase our operating costs and could materially impair our ability to
operate our business. In addition, investors’ perceptions that our internal
controls are inadequate or that we are unable to produce accurate financial
statements may seriously affect our stock price.
We
may not be able to protect our intellectual property, and we could incur
substantial costs defending ourselves against claims that our products infringe
on the proprietary rights of others.
Our
ability to compete effectively in the fuel cell market will depend on our
ability to protect our intellectual property rights with respect to our
membranes, our membrane electrode assemblies, or MEAs and manufacturing
processes and any intellectual property we develop with respect to our
polysilicon business. We rely in part on patents, trade secrets and policies and
procedures related to confidentiality to protect our intellectual property.
However, much of our intellectual property is not covered by any patent or
patent application. Confidentiality agreements to which we are party may be
breached, and we may not have adequate remedies for any breach. Our trade
secrets may also become known without breach of these agreements or may be
independently developed by our competitors. Our inability to maintain the
proprietary nature of our technology and processes could allow our competitors
to limit or eliminate any of our potential competitive advantages. Moreover, our
patent applications may not result in the grant of patents either in the United
States or elsewhere. Further, in the case of our issued patents or our patents
that may issue, we do not know whether the claims allowed will be sufficiently
broad to protect our technology or processes. Even if some or all of our patent
applications that issue are sufficiently broad, our patents may be challenged or
invalidated and we may not be able to enforce them. We could incur substantial
costs in prosecuting or defending patent infringement suits or otherwise
protecting our intellectual property rights. We do not know whether we have been
or will be completely successful in safeguarding and maintaining our proprietary
rights. Moreover, patent applications filed in foreign countries may be subject
to laws, rules and procedures that are substantially different from those of the
United States, and any resulting foreign patents may be difficult and expensive
to enforce. Further, our competitors may independently develop or patent
technologies or processes that are substantially equivalent or superior to ours.
If we are found to be infringing third-party patents, we could be required to
pay substantial royalties and/or damages, and we do not know whether we will be
able to obtain licenses to use these patents on acceptable terms, if at all.
Failure to obtain needed licenses could delay or prevent the development,
production or sale of our products, and could necessitate the expenditure of
significant resources to develop or acquire non-infringing intellectual
property.
37
Asserting,
defending and maintaining our intellectual property rights could be difficult
and costly, and failure to do so might diminish our ability to compete
effectively and harm our operating results. We may need to pursue lawsuits or
legal actions in the future to enforce our intellectual property rights, to
protect our trade secrets and domain names, and to determine the validity and
scope of the proprietary rights of others. If third parties prepare
and file applications for trademarks used or registered by us, we may oppose
those applications and be required to participate in proceedings to determine
priority of rights to the trademark.
We cannot
be certain that others have not filed patent applications for technology covered
by our issued patent or our pending patent applications or that we were the
first to invent technology because:
•
|
some
patent applications in the United States may be maintained in secrecy
until the patents are issued;
|
•
|
patent
applications in the United States and many foreign jurisdictions are
typically not published until 18 months after filing;
and
|
•
|
publications
in the scientific literature often lag behind actual discoveries and the
filing of patents relating to those
discoveries.
|
Competitors
may have filed applications for patents, may have received patents and may
obtain additional patents and proprietary rights relating to products or
technology that block or compete with our products and technology. Due to the
various technologies involved in the development of fuel cell systems, including
membrane and MEA technologies, and PV products, it is impracticable for us to
affirmatively identify and review all issued patents that may affect our
products. Although we have no knowledge that our products and technology
infringe any third party’s intellectual property rights, we cannot be sure that
we do not infringe any third party’s intellectual property rights. We may have
to participate in interference proceedings to determine the priority of
invention and the right to a patent for the technology. Litigation and
interference proceedings, even if they are successful, are expensive to pursue
and time-consuming, and we could use a substantial amount of our financial
resources in either case.
We
will use materials that are considered hazardous in our planned polysilicon
manufacturing and production processes and, therefore, we could be held liable
for any losses that result from the use and handling of such hazardous
materials, with respect to losses which we do not carry insurance.
The
production of polysilicon will involve the use of materials that are hazardous
to human health and the environment, the storage, handling and disposal of which
will be subject to government regulation. Compliance with environmental laws and
regulations may be expensive, and current or future environmental regulations
may increase our manufacturing costs and may require us to halt or suspend our
operations until we regain compliance. If we have an accident at the Project
involving a spill or release of these substances, we may be subject to civil
and/or criminal penalties, including financial penalties and damages, and
possibly injunctions preventing us from continuing our operations. Any liability
for penalties or damages, and any injunction resulting from damages to the
environment or public health and safety, could harm our business. In addition
under various Federal, state and local laws, ordinances and regulations, an
owner or operator of real estate is liable for costs of removal or remediation
of certain hazardous or toxic substances on or in such property. These laws
often impose such liability without regard to whether the owner or operator knew
of, or was responsible for, the presence of such substances. We do not have any
insurance for liabilities arising from the use and handling of hazardous
materials.
Our
polysilicon manufacturing business will involve many operating risks that can
cause substantial losses.
The
manufacture of our polysilicon may involve one or more of the following
risks:
• fires;
• explosions;
• blow-outs;
• uncontrollable
flow of gases; and
• pipe
or cement failures.
In the
event that any of the foregoing events occur, we could incur substantial losses
as a result of injury or loss of life; severe damage or destruction of property,
natural resources or equipment; pollution and other environmental damage;
investigatory and clean-up responsibilities; regulatory investigation and
penalties; suspension of operations; or repairs to resume
operations. If we experience any of these problems, our ability to
conduct operations could be adversely affected. These conditions can
cause substantial damage to facilities and interrupt production. If
realized, the foregoing risks could have a material adverse affect on our
business, financial condition and results of operations.
38
Any significant and prolonged
disruption of our operations in Hawaii could result in PV system installation
delays that would reduce our revenue.
Hoku
Solar’s business operations are currently located exclusively in the state of
Hawaii, which is subject to the potential risk of earthquakes, hurricanes,
tsunamis, floods and other natural disasters. The occurrence of an earthquake,
hurricane, tsunami, flood or other natural disaster in Hawaii could result in
damage, power outages and other disruptions that would interfere with our
ability to conduct our PV system installation business. In October 2006, for
example, Hawaii suffered a major earthquake causing significant damage
throughout the state. Our facilities and operations, however, did not suffer any
damage.
Most of
the materials we use in our PV system installation business must be delivered
via air or sea. Hawaii has a large union presence and has historically
experienced labor disputes, including dockworker strikes, which could prevent or
delay cargo shipments. Any future dispute that delays shipments via air or sea
could prevent us from procuring or installing our turnkey PV systems in time to
meet our customers’ requirements, or might require us to seek alternative and
more expensive freight forwarders or contract manufacturers, which could
increase our expenses.
We
have significant international activities and customers, particularly in China,
that subject us to additional business risks, including increased logistical
complexity and regulatory requirements, which could result in a decline in our
revenue.
Our
current polysilicon supply agreements are with Alex, Suntech, Jinko, Solarfun,
Tianwei and Solargiga, all of which are located in The People’s Republic of
China, or China, and Hong Kong. As a result, we will be engaging in significant
international sales of our polysilicon, which can be subject to many inherent
risks that are difficult or impossible for us to predict or control,
including:
•
|
political
and economic instability;
|
•
|
unexpected
changes in regulatory requirements and
tariffs;
|
•
|
difficulties
and costs associated with staffing and managing foreign operations,
including foreign distributor
relationships;
|
•
|
longer
accounts receivable collection cycles in certain foreign
countries;
|
•
|
adverse
economic or political changes;
|
•
|
unexpected
changes in regulatory requirements;
|
•
|
more
limited protection for intellectual property in some
countries;
|
•
|
potential
trade restrictions, exchange controls and import and export licensing
requirements;
|
•
|
U.S.
and foreign government policy changes affecting the markets for our
products;
|
•
|
problems
in collecting accounts receivable;
and
|
•
|
potentially
adverse tax consequences of overlapping tax
structures.
|
All of
our polysilicon supply contracts are denominated in U.S. dollars. Therefore,
increases in the exchange rate of the U.S. dollar to foreign currencies will
cause our products to become relatively more expensive to customers in those
countries, which could lead to a reduction in sales or profitability in some
cases.
All
of our polysilicon customers are located in China and Hong Kong, which involves
various political and economic risks.
Presently,
all of our long-term polysilicon supply contracts are with companies based in
China and Hong Kong. Accordingly, our business, financial condition, results of
operations and prospects could be disproportionately affected by economic,
political and legal developments in China. China’s economy differs from the
economies of most developed countries in many respects, including:
•
|
the
higher level of government involvement and
regulation;
|
•
|
the
early stage of development of the market-oriented sector of the
economy;
|
•
|
the
rapid growth rate; and
|
•
|
the
higher level of control over foreign
exchange.
|
China’s
government continues to exercise significant control over economic growth in
China through the allocation of resources, controlling payment of foreign
currency-denominated obligations, setting monetary policy and imposing policies
that impact particular industries or companies in different ways. China’s
government also sets policy with respect to the use of alternative energy such
as solar. Any adverse change in the economic conditions or government
conditions or government policies in China could have a material adverse effect
on our business, financial condition and results of operations.
39
Failure
to comply with the US Foreign Corrupt Practices Act could subject us to
penalties and other adverse consequences.
We are
subject to the U.S. Foreign Corrupt Practices Act, which generally prohibits
U.S. companies from engaging in bribery or other prohibited payments to foreign
officials for the purpose of obtaining or retaining business. Non-U.S.
companies, including some that may compete with us, are not subject to these
prohibitions. If our employees or other agents are found to have engaged in
practices such as bribery, pay-offs or other fraudulent practices in China, we
could suffer severe penalties and other consequences that may have a material
adverse effect on our business, financial condition and results of
operations.
Adverse
general economic conditions could harm our business.
Adverse
overall economic conditions that impact consumer spending could impact our
results of operations. Future economic conditions affecting disposable income
such as employment levels, consumer confidence, credit availability, business
conditions, stock market volatility, weather conditions, acts of terrorism,
pandemic, threats of war, and interest and tax rates could reduce consumer
spending or cause consumers to shift their spending away from our goods and
services. If the economic conditions continue to be adverse or worsen, we may
experience material adverse impacts on our business, operating results and
financial condition.
A
drop in the retail price of conventional energy or non-solar renewable energy
sources could harm our business.
The price
of conventional energy can affect the demand for alternative energy solutions
such as solar. Fluctuations in economic and market conditions that impact the
prices of conventional and non-solar renewable energy sources could cause the
demand for solar energy systems to decline, which would have a negative impact
on our business. Inexpensive prices for oil and other fossil fuels and utility
electric rates could also have a negative effect on our PV system installation
and polysilicon production businesses.
Conversely,
our polysilicon manufacturing process uses significant amounts of electric
energy. High energy prices, therefore, could increase our production
costs, and increases in the cost of electricity reduce our
margins. Although we have entered into a long term contract with
Idaho Power to supply electric power to the Project at a fixed rate, the Idaho
Public Utilities Commission can change the rate under certain
circumstances. Should this happen, substantial increases in our
electricity costs could have a material adverse effect on our business,
financial condition and results of operations.
Current
credit and financial market conditions could prevent or delay our current or
future customers from obtaining financing necessary to purchase our products and
services or finance their own operations or capacity expansions, which could
adversely affect our business, our operating results and financial condition
.
Due to
the recent severe tightening of credit and concerns regarding the availability
of credit around the world, our solar customers may delay or attempt to delay
their payments to us in connection with product and service purchases, or may be
delayed in obtaining, or may not be able to obtain, necessary financing for
their purchases of our products and services or their own operations or
expansion plans. In addition, the current credit and financial market conditions
may adversely affect the ability of our customers that have executed long-term
supply agreements to purchase polysilicon from us to make additional required
payments to us pursuant to these long-term supply agreements or to fund their
own expansion plans. Delays of this nature could materially harm our polysilicon
sales and PV installations, and therefore harm our business.
Risks
Associated With Government Regulation and Incentives
If
we do not obtain on a timely basis the necessary government permits and
approvals to construct and operate the Project, our construction costs could
increase and our business could be harmed.
We have
received the air permit and storm water prevention permit that are necessary to
begin construction of the Project; however, we need to apply for additional
permits with federal, state and local authorities, including building permits to
continue the construction of the Project, and permits to operate the Project
when construction is complete. The government regulatory process is lengthy and
unpredictable and delays could cause additional expense and increase our
construction costs. In addition, we could be required to change our construction
plans in order receive the required permits and such changes could also result
in additional expense and delay. Any delay in completion of construction could
result in us failing to meet our delivery deadlines under our supply agreements
and give the other parties to these agreements the right to terminate the
agreements.
Our
business and industry are subject to government regulation, which may harm our
ability to market our products.
The
market for electricity generation products is heavily influenced by foreign,
federal, state and local government regulations and policies concerning the
electric utility industry, as well as policies promulgated by electric
utilities. These regulations and policies often relate to electricity pricing
and technical interconnection of customer-owned electricity generation. In the
United States and in a number of other countries, these regulations and policies
are being modified and may continue to be modified. Customer purchases of, or
further investment in the research and development of, alternative energy
sources, including solar power technology, could be deterred by these
regulations and policies, which could result in a significant reduction in the
potential demand for our PV system installations. For example, without a
regulatory mandated exception for solar power systems, utility customers are
often charged interconnection or standby fees for putting distributed power
generation on the electric utility grid. These fees could increase the cost to
our customers of installing PV systems and make them less desirable, thereby
harming our business, prospects, results of operations and financial condition.
Furthermore, our discussions with The James Campbell Company to plan and
construct a Kapolei Sustainable Energy Park are conditioned upon receiving
various government approvals related to the capped solid waste storage area on
the site.
40
The
installation of PV systems is subject to oversight and regulation in accordance
with national and local ordinances relating to zoning, building codes, safety,
environmental protection, utility interconnection and metering and related
matters. It is difficult to track the requirements of individual states and
counties and to design equipment to comply with the varying standards. Any new
government regulations or utility policies pertaining to PV system installations
may result in significant additional expenses to us and, as a result, could
cause a significant reduction in demand for our PV system installation
services.
If
government incentives to locate the Project in the City of Pocatello, Idaho are
not realized then the costs of establishing the Project may be higher than we
currently estimate.
The State
of Idaho and the local municipal government have approved a variety of
incentives to attract Hoku Materials, including tax incentives, financial
support for infrastructure improvements around the Project, and grants to fund
the training of new employees. In March 2007, we entered into a 99-year ground
lease with the City of Pocatello, for approximately 67 acres of land in
Pocatello, Idaho and in May 2007, we commenced construction of the
Project.
In May
2007, the City of Pocatello approved an ordinance that authorized certain tax
incentives related to the infrastructure necessary for the completion and
operation of the Project. In May 2009, we entered into an Economic Development
Agreement, or the PDA Agreement, with the Pocatello Development Authority, or
the PDA, pursuant to which the PDA agreed to reimburse to us amounts we actually
incur in making certain infrastructure improvements consistent with the North
Portneuf Urban Renewal Area and Revenue Allocation District Improvement Plan and
the Idaho Urban Renewal Law, or the Infrastructure Reimbursement, and an
additional amount as reimbursement for and based on the number of full time
employee equivalents we create and maintain, or the Employment
Reimbursement, at the Project. The parties agreed that (a) the
Infrastructure Reimbursement will be an amount that is equal to 95% of the tax
increment payments the PDA actually collects on the North Portneuf Tax Increment
Financing District with respect to our real property and improvements located in
such district, or the TIF Revenue, up to approximately $26 million, less the
actual Road Costs, and (b) the Employment Reimbursement will be an amount that
is equal to 50% of the TIF Revenue, up to approximately $17 million. However,
there are no assurances that all or any part of the amount authorized will be
paid to us, and we could ultimately receive significantly less or nothing at
all, and we may not realize the benefits of these other offered incentives
including workforce training funds and utility capacities. The tax incentives
expire on December 31, 2030. If there are changes to the ordinance, which
affects the amount of the incentives, or for other reasons, some of which may be
beyond our control, we are unable to realize all or any part of these
incentives, the operating costs of the Project may be higher than we currently
estimate.
The
reduction or elimination of government and economic incentives for PV systems
and related products could reduce the market opportunity for our PV installation
services.
We
believe that the near-term growth of the market for on-grid applications, where
solar power is used to supplement a customer’s electricity purchased from the
utility network, depends in large part on the availability and size of
government incentives. Because we plan to sell to the on-grid market, the
reduction or elimination of government incentives may adversely affect the
growth of this market or result in increased price competition, both of which
adversely affect our ability to compete in this market. Currently, the U.S.
federal solar tax credit is scheduled to expire at the end of calendar year
2016. If similar tax or other federal government incentives are not available
beyond calendar year 2016, it could harm our PV system installation
business.
Today,
the cost of solar power exceeds the cost of power furnished by the electric
utility grid in many locations. As a result, federal, state and local government
bodies in many countries, most notably Germany, Japan and the United States,
have provided incentives in the form of rebates, tax credits and other
incentives to end users, distributors, system integrators and manufacturers of
solar power products to promote the use of solar energy in on-grid applications
and to reduce dependency on other forms of energy. These government economic
incentives could be reduced or eliminated altogether. For example, Germany has
been a strong supporter of solar power products and systems and political
changes in Germany could result in significant reductions or eliminations of
incentives, including the reduction of tariffs over time. Some solar program
incentives expire, decline over time, are limited in total funding or require
renewal of authority. Net metering policies in Japan could limit the amount of
solar power installed there. Reductions in, or elimination or expiration of,
governmental incentives could result in decreased demand for PV products, and
reduce the size of the market for our planned PV system installation services
and the demand for solar-grade polysilicon.
Risks
Associated With Our Common Stock and Charter Documents
Our
stock price is volatile and purchasers of our common stock could incur
substantial losses.
Our stock
price is volatile and between April 1, 2009 and December 31, 2009, our stock had
low and high sales prices in the range of $1.67 to $4.64 per share. During
fiscal 2010, the stock market in general has experienced extreme volatility that
has often been unrelated to the operating performance of particular companies.
The market price of our common stock may fluctuate significantly in response to
a number of factors, including:
41
•
|
variations
in our financial results or those of our competitors and our
customers;
|
•
|
announcements
by us, our competitors and our customers of acquisitions, new products,
the acquisition or loss of significant contracts, commercial
relationships or capital
commitments;
|
•
|
the
performance of the stock market generally and the over-all condition of
the global macro economy;
|
•
|
failure
to meet the expectations of securities analysts or investors with respect
to our financial results;
|
•
|
our
ability to develop and market new and enhanced products on a timely
basis;
|
•
|
litigation;
|
•
|
changes
in our management;
|
•
|
changes
in governmental regulations or in the status of our regulatory
approvals;
|
•
|
future
sales of our common stock by us and future sales of our common stock by
our officers, directors and
affiliates;
|
•
|
investors’
perceptions of us; and
|
•
|
general
economic, industry and market
conditions.
|
In
addition, in the past, following periods of volatility and a decrease in the
market price of a company’s securities, securities class action litigation has
often been instituted against that company. Class action litigation, if
instituted against us, could result in substantial costs and a diversion of our
management’s attention and resources.
Tianwei has
a controlling interest in us and, as long as Tianwei controls us, other
stockholders’ ability to influence matters requiring stockholder approval will
be limited.
Tianwei
owns 33,379,287 shares of our common stock, and holds a warrant to purchase an
additional 10 million shares of our common stock, together representing
approximately 66% of our total outstanding shares of common stock. Tianwei
has the right to nominate four out of seven of our directors until the earlier
of (i) Tianwei (together with its affiliates) ceasing to be our largest
individual stockholder or (i) Tianwei (together with its affiliates) owning less
than 25% of the outstanding shares of our common stock.
In
addition, as a majority stockholder Tianwei has the ability to control the
outcome of all matters that would be determined by a vote of our stockholders,
including:
|
·
|
the
composition of our board of directors and, through our board of directors,
any determination with respect to our business plans and policies,
including the appointment and removal of our
officers;
|
|
·
|
any
determinations with respect to mergers and other business
combinations;
|
|
·
|
our
acquisition or disposition of
assets;
|
|
·
|
our
financing activities;
|
|
·
|
changes
to our polysilicon supply agreements with
Tianwei;
|
|
·
|
the
allocation of business opportunities that may be suitable for us and
Tianwei;
|
|
·
|
the
payment of dividends on our common stock;
and
|
|
·
|
the
number of shares available for issuance under our stock
plans.
|
Tianwei’s
voting control may discourage transactions involving a change of control of us,
including transactions in which the holders of our common stock might otherwise
receive a premium on December 22, 2009 for their shares over the then current
market price. Until one year from the close of the Tianwei investment
transaction, Tianwei will be prohibited from selling or transferring, directly
or indirectly, 70% of its shares of common stock. Thereafter, Tianwei will
not be prohibited from selling a controlling interest in us to a third party and
may do so without stockholder approval and without providing for a purchase of
other stockholders’ shares of common stock. Accordingly, our shares of common
stock may be worth less than they would be if Tianwei did not maintain voting
control over us.
42
Through
control of our board of directors, Tianwei may cause our board to act in
Tianwei’s best interests which may diverge from the best interests of other
stockholders and make it difficult for us to recruit quality independent
directors.
Tianwei
has the right to nominate four out of seven board of directors and may at any
time replace four out of seven of our directors. As a result, unless and until
the earlier of (i) Tianwei (together with its affiliates) ceasing to be our
largest individual stockholder or (i) Tianwei (together with its affiliates)
owning less than 25% of the outstanding shares of our common stock, Tianwei can
effectively control and direct our board of directors, which means that to the
extent that our interests and the interests of Tianwei diverge, Tianwei can
cause us to act in Tianwei’s best interest to the detriment of the value of our
common stock. Under these circumstances, persons who might otherwise accept our
invitation to join our board of directors may decline.
Foreign
investors in our stock may face certain tax withholding rules if we are
classified as a U.S. real property holding corporation.
Under
U.S. tax rules, a corporation is considered a U.S. real property holding
corporation if the fair market value of its real property interests held by the
corporation in the United States equals or exceeds 50 percent of the total fair
market values of its real property interests and business
assets. In such event, the foreign seller of stock in a
publicly-traded corporation who owns more than 5% of that corporation’s common
stock is subject to a tax withholding requirement imposed on the purchaser,
equal to 10% of the sales price of the stock. This 10% withholding applies to
the amount realized on the sale of the stock, irrespective of the seller’s gain
on the sale. This withheld tax is treated as an advance payment against the
actual individual or corporate capital-gains tax owed by the
investor. In the event we were to be classified as a U.S. real
property holding corporation, large foreign investors who hold more than 5% of
our stock, would be subject to this 10% withholding requirement.
Anti-takeover
defenses that we have in place could prevent or frustrate attempts by
stockholders to change our directors or management.
Provisions
in our amended and restated certificate of incorporation and bylaws may make it
more difficult for or prevent a third party from acquiring control of us without
the approval of our Board of Directors. These provisions:
•
|
establish
a classified Board of Directors, so that not all members of our Board of
Directors may be elected at one
time;
|
•
|
set
limitations on the removal of
directors;
|
•
|
limit
who may call a special meeting of
stockholders;
|
•
|
establish
advance notice requirements for nominations for election to our Board of
Directors or for proposing matters that can be acted upon
at stockholder meetings;
|
•
|
prohibit
stockholder action by written consent, thereby requiring all stockholder
actions to be taken at a meeting of our stockholders;
and
|
•
|
provide
our Board of Directors the ability to designate the terms of and issue new
series of preferred stock without stockholder
approval.
|
These
provisions may have the effect of entrenching our management team and may
deprive investors of the opportunity to sell their shares to potential acquirers
at a premium over prevailing prices. This potential inability to obtain a
control premium could reduce the price of our common stock.
As a
Delaware corporation, we are also subject to Delaware anti-takeover provisions.
Our Board of Directors could rely on Delaware law to prevent or delay an
acquisition.
Because
we do not intend to pay dividends, stockholders will benefit from an investment
in our common stock only if it appreciates in value.
We have
not paid cash dividends on any of our classes of capital stock to date, and we
currently intend to retain our future earnings, if any, to fund the development
and growth of our business. As a result, we do not expect to pay any
cash dividends in the foreseeable future. The success of an
investment in our common stock will depend entirely upon any future
appreciation. There is no guarantee that our common stock will
appreciate in value or even maintain the price at which stockholders purchased
their shares.
43
Item
6.
|
EXHIBITS
|
|
(a) Exhibits
|
Exhibit
Number
|
Description of Document
|
4.4
|
Warrant
for the Purchase of Shares of Common Stock of Hoku Scientific, Inc., dated
December 22, 2009, issued to Tianwei New Energy Holdings Co., Ltd.
(incorporated by reference to Exhibit 4.4 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
4.5
|
Investor
Rights Agreement, dated as of December 22, 2009, between Tianwei New
Energy Holdings Co., Ltd. and Hoku Scientific, Inc. (incorporated by
reference to Exhibit 4.5 to our current report on Form 8-K, as amended,
filed December 31, 2009)
|
4.6
|
Form
of Lock-Up Agreement, dated December 22, 2009, between Tianwei New Energy
Holdings Co., Ltd. and certain officers and directors of Hoku Scientific,
Inc. (incorporated by reference to Exhibit 4.6 to our current report on
Form 8-K, as amended, filed December 31, 2009)
|
10.110†
|
Amended
and Restated Supply Agreement No. 1, dated as of December 22, 2009,
between Tianwei New Energy Holdings Co. Ltd. and Hoku Materials, Inc.
(incorporated by reference to Exhibit 10.110 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
10.111†
|
Amended
and Restated Supply Agreement No. 2, dated as of December 22, 2009,
between Tianwei New Energy Holdings Co. Ltd. and Hoku Materials, Inc.
(incorporated by reference to Exhibit 10.111 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
10.112
|
Form
of Security Agreement (relating to Amended and Restated Supply Agreements
No. 1 and No. 2), dated as of December 22, 2009, between Tianwei New
Energy Holdings Co. Ltd. and Hoku Materials, Inc. (incorporated by
reference to Exhibit 10.112 to our current report on Form 8-K, as amended,
filed December 31, 2009)
|
10.113
|
Loan
Implementation Agreement, dated December 22, 2009, among Hoku Scientific,
Inc., Hoku Materials, Inc. and Tianwei New Energy Holdings Co. Ltd.
(incorporated by reference to Exhibit 10.113 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
10.114
|
Financing
Backstop Agreement, dated December 22, 2009, between Tianwei New Energy
Holdings, Co., Ltd. and Hoku Scientific, Inc. (incorporated by reference
to Exhibit 10.114 to our current report on Form 8-K, as amended, filed
December 31, 2009)
|
10.115†
|
Amendment
No. 1 to Amended and Restated Supply Agreement, dated as of November 25,
2009, between Jinko Solar Co., Ltd. and Hoku Materials,
Inc.
|
10.116†
|
Amendment
No. 3 to Second Amended and Restated Supply Agreement, dated as of
November 15, 2009, between Solarfun Power Hong Kong Limited and Hoku
Materials, Inc.
|
10.117†
|
Amendment
No. 1 to Supply Agreement, dated as of December 30, 2009, between Shanghai
Alex New Energy Co., Ltd. and Hoku Materials, Inc.
|
31.1
|
Certification
of Chief Executive Officer required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended.
|
31.2
|
Certification
of Chief Financial Officer required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended.
|
32.1#
|
Certification
of Chief Executive Officer required by Rule 13a-14(b) of the Securities
Exchange Act of 1934, as amended.
|
32.2#
|
Certification
of Chief Financial Officer required by Rule 13a-14(b) of the Securities
Exchange Act of 1934, as
amended.
|
†
|
Confidential
treatment has been requested for portions of this exhibit. These portions
have been omitted from this Quarterly Report on Form 10-Q and have been
filed separately with the Securities and Exchange
Commission.
|
#
|
In
accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release Nos.
33-8238 and 34-47986, Final Rule: Management’s Reports on Internal Control
Over Financial Reporting and Certification of Disclosure in Exchange Act
Periodic Reports, the certifications furnished in Exhibits 32.1 and 32.2
hereto are deemed to accompany this Form 10-Q and will not be deemed
“filed” for purposes of Section 18 of the Exchange Act. Such
certifications will not be deemed to be incorporated by reference into any
filing under the Securities Act or the Exchange Act, except to the extent
that the registrant specifically incorporates it by
reference.
|
44
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized on February 5, 2010.
HOKU
SCIENTIFIC, INC.
|
/s/
Darryl s.
Nakamoto
|
Darryl
S. Nakamoto
|
Chief
Financial Officer, Treasurer and Secretary
(Principal
Financial and Accounting
Officer)
|
45
INDEX
OF EXHIBITS
Exhibit
Number
|
Description of Document
|
4.4
|
Warrant
for the Purchase of Shares of Common Stock of Hoku Scientific, Inc., dated
December 22, 2009, issued to Tianwei New Energy Holdings Co., Ltd.
(incorporated by reference to Exhibit 4.4 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
4.5
|
Investor
Rights Agreement, dated as of December 22, 2009, between Tianwei New
Energy Holdings Co., Ltd. and Hoku Scientific, Inc. (incorporated by
reference to Exhibit 4.5 to our current report on Form 8-K, as amended,
filed December 31, 2009)
|
4.6
|
Form
of Lock-Up Agreement, dated December 22, 2009, between Tianwei New Energy
Holdings Co., Ltd. and certain officers and directors of Hoku Scientific,
Inc. (incorporated by reference to Exhibit 4.6 to our current report on
Form 8-K, as amended, filed December 31, 2009)
|
10.110†
|
Amended
and Restated Supply Agreement No. 1, dated as of December 22, 2009,
between Tianwei New Energy Holdings Co. Ltd. and Hoku Materials, Inc.
(incorporated by reference to Exhibit 10.110 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
10.111†
|
Amended
and Restated Supply Agreement No. 2, dated as of December 22, 2009,
between Tianwei New Energy Holdings Co. Ltd. and Hoku Materials, Inc.
(incorporated by reference to Exhibit 10.111 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
10.112
|
Form
of Security Agreement (relating to Amended and Restated Supply Agreements
No. 1 and No. 2), dated as of December 22, 2009, between Tianwei New
Energy Holdings Co. Ltd. and Hoku Materials, Inc. (incorporated by
reference to Exhibit 10.112 to our current report on Form 8-K, as amended,
filed December 31, 2009)
|
10.113
|
Loan
Implementation Agreement, dated December 22, 2009, among Hoku Scientific,
Inc., Hoku Materials, Inc. and Tianwei New Energy Holdings Co. Ltd.
(incorporated by reference to Exhibit 10.113 to our current report on Form
8-K, as amended, filed December 31, 2009)
|
10.114
|
Financing
Backstop Agreement, dated December 22, 2009, between Tianwei New Energy
Holdings, Co., Ltd. and Hoku Scientific, Inc. (incorporated by reference
to Exhibit 10.114 to our current report on Form 8-K, as amended, filed
December 31, 2009)
|
10.115†
|
Amendment
No. 1 to Amended and Restated Supply Agreement, dated as of November 25,
2009, between Jinko Solar Co., Ltd. and Hoku Materials,
Inc.
|
10.116†
|
Amendment
No. 3 to Second Amended and Restated Supply Agreement, dated as of
November 15, 2009, between Solarfun Power Hong Kong Limited and Hoku
Materials, Inc.
|
10.117†
|
Amendment
No. 1 to Supply Agreement, dated as of December 30, 2009, between Shanghai
Alex New Energy Co., Ltd. and Hoku Materials, Inc.
|
31.1 |
Certification
of Chief Executive Officer required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended.
|
31.2 |
Certification
of Chief Financial Officer required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended.
|
32.1#
|
Certification
of Chief Executive Officer required by Rule 13a-14(b) of the Securities
Exchange Act of 1934, as amended.
|
32.2#
|
Certification
of Chief Financial Officer required by Rule 13a-14(b) of the Securities
Exchange Act of 1934, as
amended.
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†
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Confidential
treatment has been requested for portions of this exhibit. These portions
have been omitted from this Quarterly Report on Form 10-Q and have been
filed separately with the Securities and Exchange
Commission.
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#
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In
accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release Nos.
33-8238 and 34-47986, Final Rule: Management’s Reports on Internal Control
Over Financial Reporting and Certification of Disclosure in Exchange Act
Periodic Reports, the certifications furnished in Exhibits 32.1 and 32.2
hereto are deemed to accompany this Form 10-Q and will not be deemed
“filed” for purposes of Section 18 of the Exchange Act. Such
certifications will not be deemed to be incorporated by reference into any
filing under the Securities Act or the Exchange Act, except to the extent
that the registrant specifically incorporates it by
reference.
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46