(Exact name of Registrant as
specified in its charter)
N/A
(Translation of Registrant’s
name into English)
Cayman
Islands
(Jurisdiction of incorporation or
organization)
Hi-Tech
Industrial Park
Xinyu City
Jiangxi Province 338032
People’s Republic of China
(Address of principal executive
offices)
Securities
registered or to be registered pursuant to Section 12(b) of
the Exchange Act.
Title of each class
Name of each exchange on which registered
American Depositary Shares, each representing one ordinary share
of par value $0.10 per share
New York Stock Exchange, Inc.
Securities
registered or to be registered pursuant to Section 12(g) of
the Exchange
Act. None
(Title of Class)
Securities
for which there is a reporting obligation pursuant to
Section 15(d) of the Exchange
Act. None
(Title of Class)
Indicate
the number of outstanding shares of each of the issuer’s
classes of capital or common stock as of
the close of the period covered by the annual report.
Shares, par value $0.10 per share
106,044,700
Indicate by check mark if the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes o No þ
If this report is an annual or transition report, indicate by
check mark if the registrant is not required to file reports
pursuant to Section 13 or 15(d) of the Exchange
Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) or
the Exchange Act during the preceding 12 months (or for
such shorter period that the registrant as required to file such
reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes
þ No
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. See definition of “accelerated filer and large
accelerated filer” in
Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated
filer o Accelerated
filer o Non-accelerated
filer þ
Indicate by check mark which financial statement item the
registrant has elected to follow. Item 17
o
Item 18
þ
If this is an annual report, indicate by check mark whether the
registrant is a shell company (as defined in
Rule 12b-2
of the Exchange
Act). Yes o No þ
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all
documents and reports required to be filed by Section 12,
13 or 15(d) of the Exchange Act subsequent to the distribution
of securities under a plan confirmed by a
court. Yes o No o
We measure our wafer production capacity in megawatts,
representing 1,000,000 watts, a unit of power-generating
capacity. For purposes of this report, we have assumed an
average photovoltaic conversion efficiency rate of 15.3% for
cells using our wafers. The conversion efficiency rate of a
photovoltaic cell is the percentage of light energy from the sun
that the cell converts into electrical energy. This conversion
efficiency is estimated based on feedback from selected
customers of ours and is highly dependent on the solar cell and
module production processes of our selected customers. Based on
this conversion efficiency, we have assumed that each 125 by 125
millimeters, or mm, wafer we produce generates approximately
2.4 watts of power; each 150 by 150 mm wafer we
produce generates approximately 3.4 watts of power; and each 156
by 156 mm wafer we produce generates approximately
3.7 watts of power. We calculate our production capacity,
as of December 31, 2007, based on the ingot production
capacity and wafer slicing, or wafering, capacity of our
equipment in operation as of December 31, 2007, on an
annualized basis. We calculate our planned production capacity
of approximately 800 MW by the end of 2008 and
approximately 1,600 MW by the end of 2009 based on the
ingot production capacity and wafering capacity of our equipment
planned to be in operation by the end of 2008 and 2009,
respectively, on an annualized basis.
For the purpose of this report, geographical references to
“China” and the “PRC” are to the
People’s Republic of China and do not include the Hong Kong
Special Administrative Region, or Hong Kong, the Macau Special
Administrative Region, or Macau, and Taiwan. References to
“provinces” of China are to provinces or
municipalities under direct administration of the PRC central
government and provincial-level autonomous regions of China.
“We,”“us,”“our company” or
“LDK Solar” refers to LDK Solar Co., Ltd., a Cayman
Islands company, and its predecessor entities and its
subsidiaries.
“IPO” refers to our initial public offering in June
2007; “IPO prospectus” refers to the final prospectus
dated May 31, 2007 filed with the SEC.
“RMB,”“Rmb” or “Renminbi” refers
to the legal currency of China; “$,”“dollars,”“US$” or
“U.S. dollars” refers to the legal currency of
the United States.
We have sourced various solar industry data used in this report
from Photon Consulting published by Solar Verlag GmbH, or Photon
Consulting, Photon International published by Solar Verlag GmbH,
or Photon International, and Solarbuzz LLC, or Solarbuzz, each
an independent solar energy industry research company or
publication. We have assumed the correctness and truthfulness of
such data, including projections and estimates, when we use them
in this report.
We have approximated all the numbers in this report to their
closest round numbers. Due to rounding, figures shown as totals
in tables may not be arithmetic aggregations of the figures
preceding them.
Unless otherwise indicated, references in this report to:
•
“off-grid applications” are to applications of
photovoltaic products to systems that operate on a stand-alone
basis to provide electricity independent of an electricity
transmission grid; and
•
“on-grid applications” are to applications of
photovoltaic products to systems that are connected to an
electricity transmission grid and feed electricity generated
into the electricity transmission grid.
We conduct substantially all of our business operations in and
from China with a substantial portion of our sales denominated
in Renminbi, while a significant portion of our costs and
expenses is denominated in U.S. dollars. We will make
periodic reports to our shareholders in U.S. dollars by
using the then-current exchange rates. We make no representation
that any amounts in Renminbi or U.S. dollars could be or
could have been converted into each other at any particular rate
or at all. The PRC government imposes controls over its foreign
exchange in part through regulation of the conversion between
Renminbi and foreign currencies as we have disclosed in
“Item 3 — Risk Factors — Risks
Relating to Our Company and Our Industry —
Fluctuations in exchange rates could adversely affect our
business” and “— Risk Factors — Risks
Relating to Business Operations in China — Changes in
foreign exchange and foreign investment regulations in China may
affect our ability to invest in China and the ability of our PRC
subsidiary to pay dividends and service debts in foreign
currencies” in this report.
The following table sets forth, for the periods indicated, the
noon buying rates for U.S. dollars in New York City for
cable transfers in Renminbi as certified for customs purposes by
the Federal Reserve Bank of New York:
Noon Buying Rate
Period
Period End
Average
High
Low
(Renminbi per $1.00)
2003
8.2767
8.2771
8.2800
8.2765
2004
8.2765
8.2768
8.2774
8.2764
2005
8.0702
8.1826
8.2765
8.0702
2006
7.8041
7.9579
8.0702
7.8041
2007
7.2946
7.6058
7.8127
7.2946
October
7.4682
7.5016
7.5158
7.4682
November
7.3850
7.4212
7.4582
7.3800
December
7.2946
7.3682
7.4120
7.2946
2008
January
7.1818
7.2405
7.2946
7.1818
February
7.1115
7.1644
7.1973
7.1100
March
7.0120
7.0722
7.1110
7.0105
Annual averages in the above table are calculated by averaging
the noon buying rates on the last business day of each month
during the year. Monthly averages are calculated by averaging
the noon buying rates for all days during the month or the
elapsed portion thereof.
On April 4, 2008, the noon buying rate for
U.S. dollars in effect in New York City for cable transfers
of Renminbi as certified for customs purposes by the Federal
Reserve Bank of New York was $1.00 = Rmb 7.0150.
This annual report includes “forward-looking
statements” within the meaning of the United States Private
Securities Litigation Reform Act of 1995. All statements, other
than statements of historical facts, included in this annual
report that relate to future events, including our future
operating results and conditions, our prospects and our future
financial performance and condition. These statements involve
known and unknown risks, uncertainties and other factors which
may cause our actual results, performance or achievements to be
materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements. These risks and other factors include those listed
under “Item 3 — Risk Factors” and
elsewhere in this report.
In some cases, these forward-looking statements can be
identified by words or phrases such as “anticipate,”“believe,”“expect,”“estimate,”“predict,”“potential,”“continue,”“future,”“intend,”“may,”“ought to,”“plan,”“should,”“will,” negatives of such terms or
other expressions. We have based these forward-looking
statements largely on our current expectations and projections
about future events and financial trends that we believe may
affect our financial condition, results of operations, business
strategy and financial needs. These forward-looking statements
include, without limitation, statements relating to:
•
our goals and strategies;
•
our future business development, results of operations and
financial condition;
•
our plans to expand our solar wafer production capacity;
•
our plans to construct polysilicon facilities and to manufacture
polysilicon;
•
expected growth of and changes in the multicrystalline wafer
industry, photovoltaic power industry and renewable energy
industry;
•
our ability to maintain and strengthen our position as a leading
solar wafer producer globally;
•
our ability to maintain strong relationships with any particular
supplier or customer;
•
effect of competition on demand for and price of our products;
•
determination of the fair value of our ordinary shares and
preferred shares;
•
any government subsidies and economic incentives to the solar
power industry; and
This report also contains data related to the solar power market
in several countries, including China. This market data,
including data from Solarbuzz, Photon International and Photon
Consulting, includes projections that are based on a number of
assumptions. The solar power market may not grow at the rates
projected by the market data, or at all. The failure of the
market to grow at the projected rates may materially adversely
affect our business and the market price of our ADSs. In
addition, the rapidly changing nature of the solar power market
subjects any projections or estimates relating to the growth
prospects or future condition of our market to significant
uncertainties. If any one or more of the assumptions underlying
the market data proves to be incorrect, actual results may
differ from the projections based on these assumptions. You
should not place undue reliance on these forward-looking
statements.
In order to calculate our share-based compensation expenses, we
were required to determine the fair value of the underlying
ordinary shares at the dates of the grant of our stock options.
Because we were a privately held company at such date of grant,
the determination of the fair value of our ordinary shares
requires making complex and subjective judgments regarding
projected financial and operating results, our unique business
risks, the liquidity of our shares and our operating history and
prospects at the time of grant. There are inherent risks and
uncertainties in making such forward-looking statements.
The forward-looking statements contained in this report speak
only as of the date of this report or, if obtained from
third-party studies or reports, the date of the corresponding
study or report and are expressly qualified in their entirety by
the cautionary statements in this report. Since we operate in an
emerging and evolving environment and new risk factors emerge
from time to time, you should not rely upon forward-looking
statements as predictions of future events. Except as otherwise
required by the securities laws of the United States, we
undertake no obligation to update or revise any forward-looking
statements, whether as a result of new information, future
events or otherwise, to reflect events or circumstances after
the date of this report or to reflect the occurrence of
unanticipated events. All forward-looking statements contained
in this report are qualified by reference to this cautionary
statement.
IDENTITY
OF DIRECTORS, SENIOR MANAGEMENT AND ADVISORS
Not applicable, but see “Item 6 — Directors,
Senior Management and Employees — Directors and Senior
Management.”
ITEM 2.
OFFER
STATISTICS AND EXPECTED TIMETABLE
Not applicable.
ITEM 3.
KEY
INFORMATION
A.
Selected
Financial and Operating Data
The following selected consolidated statement of operations data
and statement of cash flows data for the period from
July 5, 2005, the date of our inception, to
December 31, 2005 and for the years ended December 31,2006 and 2007 and the selected consolidated balance sheet data
as of December 31, 2005, 2006 and 2007 have been derived
from our audited consolidated financial statements included in
Item 18 of this report. The selected consolidated balance
sheet data as of December 31, 2005 are derived from our
audited consolidated financial statements not included in this
report. You should read the following selected consolidated
financial data in conjunction with the consolidated financial
statements and related notes and the information under
“Item 5 — Operating and Financial Review and
Prospects” in this annual report. We have prepared our
consolidated financial statements in accordance with
U.S. GAAP. Our historical results for any period are not
necessarily indicative of results to be expected for any future
period.
We were incorporated in the Cayman Islands on May 1, 2006
as the holding company for, and currently conduct our operations
through subsidiaries in China, including Jiangxi LDK Solar
Hi-Tech Co., Ltd., or Jiangxi LDK Solar, which became our wholly
owned subsidiary on July 10, 2006 when we acquired all of
its equity interests. As the acquisition of Jiangxi LDK Solar
was made between entities under common control, the transaction
has been accounted for in a manner similar to the
pooling-of-interest method. Accordingly, the assets and
liabilities of Jiangxi LDK Solar have been included in our
consolidated financial statements at their historical amounts.
The consolidated financial statements present our financial
condition and results of operations as if the acquisition had
occurred as of the beginning of the earliest period presented.
Interest expense and amortization of discount on exchangeable
notes(3)
(102
)
(7,133
)
(9,419
)
(Loss) earnings before income tax benefit
(309
)
30,069
143,301
Net (loss)
income(4)
$
(274
)
$
30,182
$
144,059
Accretion of Series A, Series B and Series C
preferred shares to redemption values
—
(2,729
)
(4,937
)
Deemed dividend to Series A preferred shareholders
—
(1,568
)
—
Net (loss) income available to ordinary
shareholders(4)
(274
)
25,885
139,122
(Loss) earnings per ordinary
share(4)(5)
Basic
$
(0.01
)
$
0.35
$
1.50
Diluted
$
(0.01
)
$
0.35
$
1.37
(Loss) earnings per ADS
Basic
$
(0.01
)
$
0.35
$
1.50
Diluted
$
(0.01
)
$
0.35
$
1.37
Ordinary shares used in
computation(5)
Basic
75,000
75,000
92,674
Diluted
75,000
75,000
104,859
(1)
Gross profit for the years ended
December 31, 2006 and 2007 reflected $174,000 and
$1,772,000 of share-based compensation expense allocated to cost
of goods sold, respectively.
(2)
Income from operations for the
years ended December 31, 2006 and 2007 reflected $2,028,000
and $9,390,000 of share-based compensation expense, respectively.
(3)
Interest expense for the year ended
December 31, 2006 and 2007 included $4,440,000 and nil
related to debt discount amortization for the embedded
beneficial conversion feature of our exchangeable notes. See
note 11 to the audited consolidated financial statements
beginning on
page F-1.
(4)
Our PRC subsidiary, Jiangxi LDK
Solar, is entitled to exemption from PRC national enterprise
income tax for at least two years and PRC local enterprise
income tax for at least five years, each beginning with calendar
year 2006. Without this tax holiday, our income tax expense
would have increased and our net income and net income available
to ordinary shareholders would have been reduced by
approximately $12,387,000 and $53,316,000 for the years ended
December 31, 2006 and 2007, respectively. Our basic
earnings per ordinary share would have been reduced by $0.17 and
$0.58 for the years ended December 31, 2006 and 2007,
respectively, and our diluted earnings per ordinary share would
have been reduced by $0.17 and $0.51 for the years ended
December 31, 2006 and 2007, respectively.
(5)
All share and per share data have
been presented to give retrospective effect to our
reorganization as described above.
Net cash provided by (used in) operating activities
$
2,511
$
(57,067
)
$
(80,663
)
Net cash used in investing
activities(1)
(20,940
)
(79,564
)
(328,623
)
Net cash provided by financing
activities(2)
$
28,077
$
154,891
$
462,324
(1)
Includes purchase of property,
plant and equipment of approximately $15.5 million,
$72.8 million and $305.2 million in 2005, 2006 and
2007, respectively.
(2)
Includes proceeds from the issuance
of our shares of nil, $10,000 and $369.5 million in 2005,
2006 and 2007, respectively.
The following table sets forth some other selected financial and
operating data of our company for the periods specified.
Investment in our securities including our ADSs and ordinary
shares involves a high degree of risk. You should consider
carefully the following information about these risks and
uncertainties, together with other information contained in this
report, before you decide whether to buy or hold our
securities.
Our
operating history is short and may not provide you with an
adequate basis upon which to evaluate our business and
prospects.
We were incorporated on May 1, 2006 to acquire our
operating subsidiary, Jiangxi LDK Solar, which was incorporated
on July 5, 2005. We commenced construction of our first
manufacturing plant in Xinyu Hi-Tech Industrial Park of Jiangxi
province in China in 2005. We completed the installation of our
first set of production equipment for trial runs in February
2006 and made our first commercial shipment of solar wafers in
April 2006. Our operating history may be too short to give you a
sufficient basis for evaluating our business, financial
performance and prospects. We may not be able to achieve similar
results or growth in future periods. Accordingly, you should not
rely on our results of operations for any prior periods as an
indication of our future performance.
If we
are not able to manage our rapid growth effectively, our results
of operations may be adversely affected.
In anticipation of the growth in demand for our multicrystalline
wafers, we plan to expand our business operations significantly.
The success of such business expansion and operational growth
will depend upon the improvement of our operational and
financial systems, enhancement of our internal procedures and
controls, increase in our manufacturing capacity and output, and
effective recruitment, training and retention of technicians and
skilled employees. In addition, we will need to maintain and
expand our relationships with customers, suppliers and other
third parties. We cannot assure you that our current and planned
operations, personnel, systems, internal procedures and controls
will be adequate to support our future growth. If we are unable
to manage our rapid growth effectively, we may not be able to
take advantage of market opportunities, successfully execute our
business strategies or respond to competitive pressures, and our
results of operations may be adversely affected.
Failure
to secure sufficient quantities of polysilicon feedstock on
commercially reasonable terms could adversely affect our
business and results of operations.
Solar-grade polysilicon feedstock is an essential raw material
in manufacturing our multicrystalline solar wafers. Our
operations depend on our ability to procure sufficient
quantities of solar-grade polysilicon on a timely basis and on
commercially reasonable terms. Polysilicon is also an essential
raw material for the semiconductor industry, which requires
polysilicon of higher purity than that for the solar industry.
The significant growth of the solar wafer industry and the
competing demand and buying power of the semiconductor industry
have resulted in an industry-wide shortage in solar-grade
polysilicon and a significant increase in solar-grade
polysilicon prices over the past few years. According to
Solarbuzz, the average price of virgin polysilicon under
long-term supply contracts is expected to increase from
approximately $35 to $40 per kilogram delivered in 2005 to $65
to $75 in 2008. In addition, according to Solarbuzz, spot
polysilicon prices ranged from $250 per kilogram to $400 per
kilogram in 2007. Currently, we have polysilicon inventories and
supply commitments that we believe will satisfy over 80% of our
estimated polysilicon requirements for 2008. However, some of
our polysilicon supply agreements are subject to fluctuating
market prices or price negotiations with our suppliers. In
addition, suppliers may delay or default in their delivery
obligations under the supply agreements, as we have disclosed in
the risk factor “— There are a
limited number of suppliers of virgin polysilicon feedstock and
failure or delay by any of our polysilicon suppliers in
delivering supplies to us could adversely impact our production
and delivery schedule and harm our reputation” below. We
cannot assure you that we will continue to be able to acquire
polysilicon in sufficient quantities and on commercially
reasonable terms or that we will be able to pass any increased
costs of polysilicon to our customers. If we fail to do so, our
business and profitability will be adversely affected.
There
are a limited number of suppliers of virgin polysilicon
feedstock and failure or delay by any of our polysilicon
suppliers in delivering supplies to us could adversely impact
our production and delivery schedule and harm our
reputation.
Polysilicon manufacturing is a highly concentrated industry and
there are only a limited number of virgin polysilicon producers
in the world. According to Solarbuzz, the largest seven virgin
polysilicon producers had a combined production capacity of
approximately 82% of the global production capacity of
polysilicon in 2007. These virgin polysilicon producers not only
provide silicon feedstock to the solar industry but are also the
sources of polysilicon feedstock for the semiconductor industry.
Although a small portion of our polysilicon feedstock consists
of virgin polysilicon, the suppliers of our remaining
requirements in the form of recyclable polysilicon also rely on
the virgin polysilicon producers for their polysilicon raw
materials. There have been reports and announcements that these
virgin polysilicon producers have implemented production
expansion programs in one form or another, but there can be no
assurance that such expansion plans will succeed or increase
their production enough to relieve the industry-wide shortage in
solar-grade polysilicon supply. In addition, there is no
assurance that the various reported greenfield projects by new
entrants in the virgin polysilicon industry will be successful
and increase supply of virgin polysilicon feedstock to our
industry. From time to time we have experienced delays or
defaults by some of our polysilicon suppliers in delivering
supplies to us. For example, we entered into a supply contract
in late 2006 to purchase polysilicon from Technischer
Warenhandel Heller and NCA Fortin Inc., as co-sellers, from 2006
to 2011. Pursuant to the terms of the contract, we paid an
aggregate of $3.0 million as our deposits and prepayments
with respect to the shipments of polysilicon feedstock scheduled
for delivery. Technischer Warenhandel Heller and NCA Fortin Inc.
eventually failed to consummate the transaction. Although
Technischer Warenhandel Heller and NCA Fortin Inc. have refunded
all of our deposits and prepayments, we had to replace their
committed quantities of polysilicon from other sources. Material
or prolonged delays or defaults such as these could adversely
impact our production and delivery schedule and harm our
reputation. If we fail to develop or maintain our relationships
with these and other polysilicon suppliers, or should any of our
major suppliers encounter difficulties in its production or
shipment of polysilicon feedstock to us, whether due to natural
disasters, labor unrest or any other reason, it will be
difficult for us to find alternative sources on a timely basis
and on commercially reasonable terms. In that event, we may be
unable to manufacture and sell our products in the required
quantities and on a timely basis. As a result, our production
and delivery schedules may be adversely affected and our
reputation may be harmed.
Our suppliers, particularly virgin polysilicon suppliers,
require us to make prepayments from time to time. We make these
prepayments, without receiving any collateral, in order to
secure stable supply of polysilicon. As of December 31,2007, our prepayments to polysilicon suppliers amounted to
$157.2 million. Some of our suppliers have failed to meet
their delivery schedule in the past. In addition, because we
have embarked on our own polysilicon manufacturing program, the
perceived competition from us may inhibit virgin polysilicon
suppliers from supplying us with polysilicon. If our suppliers
fail or become unwilling to deliver the polysilicon we have
ordered on time or at all and do not return our prepayments, our
results of operations may be adversely affected. In addition, we
may not be able to find alternative sources of polysilicon,
which could adversely affect our business and results of
operations.
In order to secure supplies of polysilicon, we have entered into
substantial long-term contractual commitments to purchase
polysilicon from various suppliers. As of December 31,2007, these purchase commitments amounted to approximately
$170.7 million. Our polysilicon purchase commitments are
generally on a “take or pay” basis, so that we are
required to purchase the contracted supplies of polysilicon even
if we are unable to use them. Therefore if our wafer production
and sales and polysilicon requirements do not grow as expected,
these purchase commitments could have a material adverse effect
on our financial condition and results of operations. See
“Item 5 — Operating and Financial Review and
Prospects — Tabular Disclosure of Contractual
Obligations” in this report.
Failure
to complete our polysilicon production plant and bring it up to
full operation within budget and on schedule could adversely
affect our results of operations and our business expansion
strategies.
We commenced the construction of our polysilicon production
plant in August 2007. This plant is located near our current
solar wafer manufacturing facilities in Xinyu Hi-Tech Industrial
Park. Our polysilicon production plant consists of two factories
under construction, one with an expected annual installed
polysilicon production capacity of 15,000 metric tons and the
other with an expected annual installed polysilicon production
capacity of 1,000 metric tons. Our plan is to complete the
construction of the 1,000-metric-ton factory by the end of the
second quarter of 2008 and at the 15,000-metric-ton factory by
the end of 2008, and to achieve an aggregate installed annual
production capacity of approximately 7,000 metric tons of
polysilicon by the end of 2008 and approximately 16,000 metric
tons by the end of 2009. Our estimated total cost to construct
the polysilicon plant is approximately $1.2 billion. We do
not expect to produce any significant quantities of polysilicon
prior to 2009. We do not have any experience in polysilicon
production. As a result, we have to rely on contractors,
consultants, managers and technicians that we have recently
hired or will hire from the industry to develop, construct and
operate this plant. We also rely on manufacturing equipment that
we have contracted to import for our polysilicon production
operations. In addition, polysilicon production is a capital
intensive business. We have expended and will continue to expend
significant financial and other resources in order to construct,
start-up,
test-run and ramp up our new line of business. In addition to
the risks described above, our ability to successfully construct
and ramp up our polysilicon production plant is subject to
various other risks and uncertainties, including:
•
the need to procure additional equipment at reasonable costs and
on a timely basis;
•
the need to raise additional funds to finance the construction
and ramp-up
of the polysilicon plant, which we may be unable to obtain on
reasonable terms or at all;
•
construction delays, delays in equipment deliveries and cost
overruns;
•
our ability to install and implement the TCS plants and closed
loop systems for each of our polysilicon manufacturing factories;
•
difficulties in recruiting and training of additional skilled
employees, including technicians and managers at different
levels;
•
diversion of significant management attention and other
resources; and
•
delays or denials of required approvals, including environmental
approvals, for our land acquisition and plant construction by
relevant government authorities.
If we fail to complete the construction of our polysilicon
production plant in time or at all, or fail to make it
operational up to its designed capacity or at all, or if the
construction and ramp-up costs significantly exceed our original
budget, our results of operations will be materially adversely
affected and our business expansion and low-cost production
strategies will be materially hampered.
We may
not be successful in producing polysilicon
cost-effectively.
We do not have operating experience in polysilicon production
and, therefore, we may face significant operational challenges
in our polysilicon production. The technology used to
manufacture polysilicon is complex, requires costly equipment
and is continuously being modified in an effort to improve
yields and product performance. Microscopic impurities such as
dust and other contaminants, difficulties in the manufacturing
process, disruptions in the supply of utilities or defects in
the key materials and tools used to manufacture polysilicon
could interrupt manufacturing, reduce yields or cause a portion
of the polysilicon unusable for our wafer production. If we are
unable to build our polysilicon production capability on a
timely basis, or if we face technological difficulties in our
production of polysilicon, we may be unable to achieve
cost-effective production of polysilicon to satisfy our wafer
production needs.
Our effective capacity and ability to produce high volumes of
polysilicon depend on the cycle times for each batch of
polysilicon. We may encounter problems in our manufacturing
process or facilities as a result of, among other things,
production failures, construction delays, human error, equipment
malfunction or process
contamination, all of which could seriously harm our operations.
We may experience production delays if any modifications we make
in the manufacturing process to shorten cycles are unsuccessful.
Moreover, the failure to achieve acceptable production levels
and costs may cause our wafers not to be competitively priced,
which could adversely affect our business, financial condition
and results of operations.
The
manufacture of polysilicon presents operational difficulties and
dangers which could materially adversely affect our business,
operating results and financial condition.
Production of polysilicon requires the use of volatile materials
and chemical reactions sensitive to temperature, pressure and
external controls to maintain safety and provide commercial
production yields. For example, in the production of polysilicon
we plan to use trichlorosilane, or TCS, which is a type of
chlorosilane gas that, when purified, can be highly combustible
upon contact with air and is therefore potentially destructive
and extremely dangerous if mishandled or used in uncontrolled
circumstances. The occurrence of a catastrophic event involving
chlorosilane gas as a result of a natural disaster or human
error or otherwise at one of our polysilicon production
facilities could threaten, disrupt or destroy a significant
portion or all of our polysilicon production capacity at such
facility for a significant period of time. Additionally, our
polysilicon production facilities, in particular, are highly
reliant on our ability to maintain temperatures and pressure at
appropriate levels, the availability of adequate electricity and
our ability to control the application of such electricity.
Accordingly, mistakes in operating our equipment or an
interruption in the supply of electricity at our production
facilities could result in substantial shortfalls in production
and could reduce our production capacity for a significant
period of time. Damage from any such events or disruptions may
not be adequately covered by insurance, and could also damage
our reputation, any of which could have a material adverse
effect on our business, operating results and financial
condition.
We may
not be able to significantly increase our wafer production
capacity or output in order to increase our sales and gain
additional market share.
We need to significantly increase our wafer production capacity
and output to be able to meet the growing demand of our
customers. As of December 31, 2007, we had an annual wafer
production capacity of approximately 420 MW. All of our
wafer production facilities are operating at full or close to
full capacity. Our strategy includes a rapid expansion of our
wafer production capacity. To accommodate such expansion plan,
we have acquired additional land adjacent to our current
production site at Xinyu Hi-Tech Industrial Park and are
constructing additional manufacturing facilities on the acquired
land. Our expansion plan requires a substantial increase in our
wafer production and ancillary equipment. We have entered into
contracts to purchase additional equipment that is expected to
be sufficient for our planned wafer production capacity
expansion to approximately 800 MW by the end of 2008 and
approximately 1,600 MW by the end of 2009. If any of our
equipment manufacturers fails to deliver, or delays its delivery
of, our equipment for any reason, the implementation of our
expansion plan may be adversely affected. In addition, there is
a limited supply of the principal wafer manufacturing equipment
we use and we may not be able to replace our providers for the
required equipment at reasonable costs and on a timely basis to
implement our expansion plan.
We cannot assure you that we will be able to implement the
business expansion plan for our wafer production on a timely
basis or at all. Our ability to successfully implement the
business expansion plan for our wafer production to establish
additional manufacturing capacity and to increase our output and
sales is subject to various risks and uncertainties, including:
•
the need to procure additional wafer production equipment at
reasonable costs and on a timely basis;
•
the need to procure sufficient supplies of polysilicon
feedstock, consumables and other materials at reasonable costs
and on a timely basis;
•
the need to raise additional funds to finance our purchase of
additional polysilicon feedstock and equipment and the
construction of additional manufacturing facilities, which we
may be unable to obtain on reasonable terms or at all;
difficulties in recruitment and training of additional skilled
employees, including technicians and managers at different
levels;
•
diversion of significant management attention and other
resources; and
•
delays or denials of required approvals for our land acquisition
and plant construction, including environmental approvals, by
relevant government authorities.
Our wafer production expansion plan contemplates a substantial
increase in production capacity and we cannot assure you that we
can successfully implement our expansion plan or manage such an
expanded capacity. If we fail, or encounter significant delays
in our efforts, to establish or successfully utilize additional
manufacturing capacity or to increase our manufacturing output,
we will be unable to increase our sales and capture additional
market share, and our results of operations will be adversely
affected.
Reduction
or elimination of government subsidies and economic incentives
for the solar power industry could cause demand for our products
to decline, thus adversely affecting our business prospects and
results of operations.
Growth of the solar power market, particularly for on-grid
applications, depends largely on the availability and size of
government subsidies and economic incentives. At present, the
cost of solar power substantially exceeds the cost of
conventional power provided by electric utility grids in many
locations around the world. Various governments have used
different policy initiatives to encourage or accelerate the
development and adoption of solar power and other renewable
energy sources. Renewable energy policies are in place in the
European Union, most notably Germany and Spain, certain
countries in Asia, including China, Japan and South Korea, and
many of the states in Australia and the United States. Examples
of government-sponsored financial incentives include capital
cost rebates, feed-in tariffs, tax credits, net metering and
other incentives to end-users, distributors, system integrators
and manufacturers of solar power products to promote the use of
solar power in both on-grid and off-grid applications and to
reduce dependency on other forms of energy. Governments may
decide to reduce or eliminate these economic incentives for
political, financial or other reasons. Reductions in, or
eliminations of, government subsidies and economic incentives
before the solar power industry reaches a sufficient scale to be
cost-effective in a non-subsidized marketplace could reduce
demand for our products and adversely affect our business
prospects and results of operations.
We
operate in a competitive market against players with greater
resources and more advanced technologies and we may not be able
to compete successfully.
The solar wafer manufacturing market is highly competitive. Our
competitors include international players such as affiliates of
BP plc, or BP Solar, Deutsche Solar AG, a unit of SolarWorld AG,
or Deutsche Solar, Ersol Solar Energy AG, or Ersol, Evergreen
Solar Inc., or Evergreen Solar, Green Energy Technology, Inc.,
or Green Energy, JFE Steel Corporation, or JFE, Kyocera
Corporation, or Kyocera, M.SETEK Co. Ltd., or M.SETEK, PV
Crystalox Solar AG, or PV Crystalox, Renewable Energy
Corporation ASA, or REC, Sino-American Silicon Products Inc., or
Sino-American Silicon, Sumitomo Mitsubishi Silicon Corporation,
or SUMCO, as well as companies located in China such as Glory
Silicon Energy Co., Ltd, or Glory Silicon, Jiangsu Shunda
PV-Tech Co., Ltd., or Shunda, Jinggong P-D Shaoxing Solar Energy
Technology Co., Ltd., or Jinggong P-D, Jinglong Industry and
Commerce Group., Ltd., or Jinglong, ReneSola Ltd., or Renesola,
Solargiga Energy Holdings Limited, or Solargiga, and Tianwei
Yingli New Energy Resources Co., Ltd., or Tianwei Yingli, and
Trina Solar Limited. Recently, upstream polysilicon
manufacturers as well as downstream photovoltaic cell makers
have also started to expand into wafer production business, such
as MEMC Electronic Materials, Inc., or MEMC, Motech, NorSun AS,
or NorSun, Q-Cells AG, or Q-Cells, Wacker Chemie AG, or Wacker,
and Wacker Schott Solar GmbH, or Wacker Schott Solar. Many of
our current and potential competitors have a longer operating
history, better name recognition, greater resources, larger
customer base, better access to polysilicon feedstock and
greater economies of scale than we do. In addition, most of our
competitors are integrated players in the solar industry that
also engage in the production of virgin polysilicon,
photovoltaic cells
and/or
modules. Their business models may give them competitive
advantages as these integrated players place less reliance on
the upstream suppliers
and/or
downstream customers in the value chain. A number of customers
and suppliers are also our competitors. We currently have no
plans to expand into the
production of photovoltaic cells or modules, and we have entered
into non-competition agreements with some of our customers,
pursuant to which we have agreed not to engage in the production
of solar cells or modules based on current wafer technology for
approximately 10 years. Furthermore, due to the perceived
growth in demand for multicrystalline wafers, we expect an
increase in the number of competitors over the next few years.
The key barriers to entry into our industry at present consist
of access to supplies of solar-grade polysilicon, availability
of financing and availability of various production equipment,
such as ingot-producing DSS furnaces and wafering equipment. If
these barriers disappear or become more easily surmountable, new
competitors may successfully enter our industry, resulting in
loss of our market share and increased price competition.
We also compete with alternative solar technologies. Some
companies have spent significant resources in the research and
development of proprietary solar technologies that may
eventually produce photovoltaic products at costs similar to, or
lower than, those of multicrystalline wafers without
compromising product quality. For example, they are developing
or currently producing photovoltaic products based on thin film
photovoltaic materials, which require significantly less
polysilicon to produce than multicrystalline solar products.
These alternative photovoltaic products may cost less than those
based on multicrystalline technologies while achieving the same
level of conversion efficiency. Our founder, chairman, chief
executive officer and controlling shareholder, Mr. Xiaofeng
Peng, in his personal capacity, and his family members are
considering and may invest or otherwise participate in his
personal capacity in several alternative energy projects,
including projects involving thin-film solar technology, solar
thermal, wind energy and biofuels. We have decided not to enter
into solar cell and module or thin film module production.
The solar power market in general also competes with other
sources of renewable energy and conventional power generation.
If prices for conventional and other renewable energy sources
decline, or if these sources enjoy greater policy support than
solar power, the solar power market could suffer and our
business and results of operations may be adversely affected.
We
rely on a limited number of suppliers for our production
equipment and consumables, and failure or delay by any of them
in delivering equipment or consumables to us could adversely
impact our production.
We rely on a limited number of equipment suppliers for all of
our principal manufacturing equipment and spare parts, including
our DSS furnaces, squarers that we use to cut multicrystalline
ingots into smaller blocks, wafering wire saws that we use to
slice these blocks into wafers and polysilicon reactors that
produce polysilicon with solar-grade purity. We also rely on a
limited number of suppliers for the consumables, such as
crucibles and slurry, that we use in our wafer production. Our
equipment suppliers include Chemical Design Inc., or CDI, GT
Solar Incorporated, or GT Solar, HCT Shaping Systems SA, an
affiliate of Applied Materials, Inc., or HCT Shaping, Meyer
Burger AG, or Meyer Burger, and Sinocon Machinery Company. These
suppliers have supplied most of our current equipment and spare
parts, and we will also rely on them to provide a substantial
portion of the principal manufacturing equipment and spare parts
contemplated in our expansion program. There is currently a
shortage globally in much of the equipment and consumables
required for our manufacturing process and capacity expansion.
Our strategy includes a substantial expansion of our annual
production capacity. We have entered into contracts with these
equipment manufacturers to purchase additional equipment from
them that is expected to be sufficient for our planned
wafer-production expansion to approximately 800 MW by the
end of 2008 and approximately 1,600 MW by the end of 2009.
We have also entered into equipment procurement agreements for
the establishment of our polysilicon production facilities that
are expected to be sufficient for our planned annual production
capacity of approximately 7,000 metric tons by the end of 2008
and approximately 16,000 metric tons by the end of 2009. In
addition, we have entered into a strategic cooperation agreement
with Jiangxi Sinoma New Material Co., Ltd., or Jiangxi Sinoma, a
Xinyu-based crucible manufacturer, in which we own a minority
equity interest. This agreement provides that not less than 80%
of Jiangxi Sinoma’s production capacity will be used to
satisfy our requirements and that we will purchase not less than
80% of our annual requirements of crucibles from Jiangxi Sinoma.
This agreement has a term of five years starting from November
2007.
If we fail to develop or maintain our relationships with these
and other equipment or consumables suppliers, or should any of
our major equipment or consumables suppliers encounter
difficulties in the manufacturing or shipment of its equipment
or consumables to us, including due to natural disasters or
otherwise fail to supply
equipment or consumables according to our requirements, it will
be difficult for us to find alternative providers for such
equipment or consumables on a timely basis and on commercially
reasonable terms. For example, in the first quarter of 2008, we
experienced delays in shipments of certain of our equipment for
production of our wafers. As a result, the implementation of our
expansion plan may be interrupted and our production may be
adversely impacted.
We may
develop excess production capacity and, as a result, our
profitability may be adversely affected.
Our expansion plan is based on the projected market demand for
solar wafers relative to the current insufficient production
capacity in the wafer manufacturing segment of the solar
industry. There has been an industry-wide expansion effort to
increase the overall wafer production capacity. In connection
with our expansion plan, we have entered into substantial
commitments to purchase polysilicon feedstock over the next few
years. As of December 31, 2007, these commitments amounted
to approximately $170.7 million in the aggregate, with the
purchase price subject to periodical renegotiations. In
addition, we intend to invest approximately $1.2 billion to
build our own polysilicon production facilities. Any aggressive
expansion of manufacturing capacity by us and our competitors
may result in significant excess capacity in the wafer segment
or in the overall solar industry and, as a result, prices may
decline, our utilization ratio may decrease and our results of
operations may be adversely affected.
Global
supply for photovoltaic products may exceed demand, which could
cause our wafer prices to decline and adversely affect our
margins.
Our wafer prices are based on a variety of factors, including
global market wafer prices, supply and demand conditions, and
the terms of our customer contracts, including sales volumes and
the terms on which certain customers supply us with polysilicon
feedstock. Also, many photovoltaic companies are signifcanlty
increasing capacity to meet customer demand. According to
Solarbuzz, wafer prices on a per-watt basis are expected to
decline in the next few years due to increased production
efficiencies, expected increases in global polysilicon supplies,
declines in polysilicon prices, and increased wafer production
capacity in our industry. If global supply for solar products
signficantly exceed the global demand, solar products such as
solar wafers may decline significantly in price. If wafer prices
decline and we are unable to lower our costs in line with the
price decline, whether through manufacturing larger ingots or
thinner wafers, or through technological advances, our gross
margins would be adversely affected or we may not be able to
sell all our production. In addition, we intend to continue to
enhance and broaden our revenue and customer base to target
other leading global solar cell and module manufacturers. The
current prevailing international market price for solar wafers
is lower than the prevailing PRC market price. As a result, our
increase in overseas sales may reduce our gross margin in the
near term.
We
depend on a limited number of customers for a significant
portion of our net sales and changes in their purchase terms or
patterns may cause significant fluctuations or declines in our
revenues.
We currently sell our multicrystalline wafers to over 30
customers. They are mostly solar cell and module manufacturers,
including Gintech, Q-Cells, Solarfun, Solland Solar and Suntech.
For the years ended December 31, 2006 and 2007, our five
largest customers collectively accounted for approximately 70.2%
and 42.7%, respectively, of our net sales. Suntech and Solarfun
contributed 39.7% and 13.9%, respectively, of our net sales for
the year ended December 31, 2006. During the years ended
December 31, 2007, Solarfun and Q-Cells contributed 12.3%
and 10.0%, respectively, of our net sales. We have entered into
long-term sales arrangements with original contractual terms of
five years or longer with fixed quantities, and in some cases
subject to price agreements, with some of our major customers,
including Hyundai Heavy Industries Co., Ltd., or Hyundai,
Solartech Energy, Neo Solar Power Corporation, or Neo Solar, and
Q-Cells. We
have also entered into agreements with Chinalight Solar Co.,
Ltd., or Chinalight,
E-Ton, CSI,
Gintech, General Electric International Inc., or GE Energy,
Mosel Vitelic Inc., or Mosel Vitelic, Motech, and Solartech
Energy pursuant to which we have committed to supply each of
them with specific annual quantities of wafers over the next few
years, with some subject to periodic negotiations on prices. In
addition, we have entered into a cooperation agreement with
Suntech, pursuant to which we have committed to supply to
Suntech 100 MW of wafers in 2007 and, in each year from
2008 to 2015, wafers equal to 40% to 60% of our annual
production. Pursuant to this cooperation agreement, we and
Suntech have periodically negotiated the specific quantities and
prices of wafers to be supplied and, as a result, we have
delivered less quantities than provided in the cooperation
agreement. We have also entered into framework agreements with
other customers that
are subject to future quarterly or annual agreements or monthly
purchase orders by the parties as to specific terms, including
quantity and price. Any significant deviation from the contract
terms on our customers’ part or our inability to negotiate
or renegotiate acceptable quantities, prices and delivery terms
from time to time with our customers may disrupt our operations
and materially adversely affect our financial results.
We will continue to rely on a relatively small number of
customers for a significant portion of our net sales for the
foreseeable future. There can be no assurance that any of these
customers will continue to purchase significant quantities of
wafers from us. If any of these customers fails to purchase our
committed production, we will be required to find alternative
customers for these wafers. In addition, our customers could
decide to expand upstream into the solar wafer business, which
could adversely affect our sales to such customers. Because of
our reliance on a limited number of customers, any of the
following events may cause material fluctuations or declines in
our net sales and profits:
•
reductions, delays or cancellations of purchase orders from one
or more of our significant customers;
•
loss of one or more of our significant customers and our failure
to identify additional or replacement customers; and
•
failure of any of our significant customers to make timely
payments for our products.
If we fail to develop or maintain our customer relationships
with these and other customers, or if any of our major customers
should encounter difficulties in its operations or reduce its
purchases of our products, it may be difficult for us to find
alternative customers on a timely basis and on commercially
reasonable terms or at all, which may have an adverse effect on
our revenue and profitability.
If we
are unable to fulfill our commitments to customers or customer
orders on a timely basis, we may lose customers, our reputation
may be damaged, and we may face penalties for breach of
contracts.
We have experienced delays in fulfilling purchase orders from
some of our customers due to shortages in supplies of
polysilicon feedstock and constraints in our production
capacity. For example, during the first quarter of 2007, our
production was interrupted because we temporarily shut down our
DSS furnaces to install safety kits provided by GT Solar,
manufacturer of our DSS furnaces. These safety kits are thermal
blankets which are placed at the bottom of our DSS furnaces to
prevent molten silicon from breaching the furnaces. In early
2008, we also experienced delays in the delivery of our products
due to logistics disruptions as a result of the snow storms in
China. In addition, our ability to meet existing contractual
commitments to our customers depends on the successful and
timely implementation of our expansion plan. If we are unable to
fulfill our commitments to customers or customer orders on a
timely basis, we may lose our customers and our reputation may
be damaged. Moreover, our contracts with our customers sometimes
provide for specified monetary damages or penalties for
non-delivery or failure to meet delivery schedules or product
specifications. If any of our customers invokes these clauses
against us, we may need to defend against the relevant claims,
which could be time consuming and expensive. We may be found
liable under these clauses and be required to pay damages.
We
require a significant amount of cash to fund our future capital
expenditure requirements and working capital needs; if we cannot
obtain additional sources of liquidity when we need it, our
growth prospects and future profitability may be materially
adversely affected.
We require a significant amount of cash to fund our operations.
In particular, we will need substantial additional funding to
finance the construction of our polysilicon production plant and
the expansion of our wafer-production capacity, and our working
capital requirements, including payments to suppliers to secure
our polysilicon feedstock requirements. We will also need cash
resources to fund our research and development activities in
order to remain competitive on cost and technology.
Historically, we have in part relied on substantial short-term
bank borrowings and advance payments from customers to finance
our working capital requirements. We will need additional debt
or equity financing to finance our planned wafer production
capacity expansion, construction of our polysilicon facilities
and working capital requirements. In addition, future
acquisitions,
expansions, market changes or other developments may cause us to
require additional financing. Our ability to obtain external
financing in the future is subject to a number of uncertainties,
including:
•
our future financial condition, results of operations and cash
flows;
•
general market conditions for financing activities by companies
in our industry; and
•
economic, political and other conditions in China and elsewhere.
If we are unable to obtain funding in a timely manner or on
commercially acceptable terms, or at all, our growth prospects
and future profitability may be materially adversely affected.
We
have substantial existing indebtedness and may incur substantial
indebtedness in the future, which could adversely affect our
financial condition and our ability to generate sufficient cash
to satisfy our outstanding and future debt
obligations.
As of December 31, 2007, our outstanding short-term and
long-term bank borrowings amounted to approximately
$289.2 million. We may from time to time incur substantial
additional indebtedness. If we or our subsidiaries incur
additional debt, the risks that we face as a result of such
indebtedness and leverage could intensify. Our substantial
existing indebtedness and any increase in the amount of our
indebtedness could adversely affect our financial condition and
our ability to generate sufficient cash. For example, it could:
•
increase our vulnerability to adverse general economic and
industry conditions;
•
require us to dedicate a substantial portion of our cash flow
from operations to servicing and repaying indebtedness, thereby
reducing the availability of cash flow to fund working capital,
capital expenditures, dividend payments and other general
corporate purposes;
•
limit our flexibility in planning for or reacting to changes in
the businesses and the industries in which we operate;
•
place us at a competitive disadvantage compared to our
competitors which have less debt;
•
limit, along with the financial and other restrictive covenants
of such indebtedness, our ability to borrow additional
funds; and
•
increase the cost of additional financing.
Our ability to generate sufficient cash to satisfy our
outstanding and future debt obligations will depend upon our
future operating performance, which will be affected by
prevailing economic conditions and financial, business and other
factors, many of which are beyond our control. We may not
generate sufficient cash flow to meet our anticipated operating
expenses or to service our debt obligations as they become due.
For the years ended December 31, 2006 and 2007, our net
cash outflow from operating activities was $57.1 million
and $80.7 million, respectively. If we are unable to
service our indebtedness, we will be forced to adopt an
alternative strategy that may include actions such as reducing
or delaying capital expenditures, selling assets, restructuring
or refinancing existing indebtedness or seeking equity capital.
These strategies, if implemented, may not be instituted on
satisfactory terms. Any of these constraints upon us could
materially adversely affect our ability to satisfy our
obligations.
Our
customers may not prepay for their orders.
We currently require most of our customers to prepay a portion
of the purchase price of their orders. Advance payments from
customers increased to $208.8 million in the year ended
December 31, 2007 from $40.0 million in the year ended
December 31, 2006. This allows us to prepay our suppliers
with less reliance on borrowings to cover our cash needs for
working capital. However, this practice may not be sustainable
if market conditions were to change. Should this occur, our cash
flows and business operations may be materially adversely
affected as we would then be forced to raise more cash, have
longer accounts receivable turnover days.
We are
subject to several securities class action lawsuits resulting
from allegations of accounting problems made by our former
financial controller and, we are unable to quantify their
eventual impact, if any, on us. These lawsuits or any similar or
other allegations, lawsuits or proceedings in the future could
adversely affect our results of operations, financial condition
and reputation and may cause loss of business.
Several securities class action lawsuits were filed against us
and several of our current officers and directors during October
2007 in the U.S. District Court in the Northern District of
California and the Southern District of New York. Those actions
have been consolidated into a single action, pending in the
Northern District of California, entitled In re LDK Solar
Sec. Litig., Case No. C
07-05182
WHA. The lawsuit alleges securities law violations and seeks
unspecified damages relating to the allegations made by our
former financial controller, Charley Situ
(“Mr. Situ’s allegations”). The complaints
allege that we had knowingly and intentionally deceived the
plaintiffs through misleading financial reporting by, among
other things, overstating our inventories of polysilicon. In
addition, several of our officers and directors are defendants
in another lawsuit, pending in California Superior Court,
Santa Clara County, entitled Sean Coonerty v.
Xiaofeng Peng, et al., Case No. 108CV103758. This
derivative lawsuit alleges claims of breach of fiduciary duty
and unjust enrichment based on the same allegations contained in
the securities lawsuit, including the allegations that the
feedstock inventory was overstated.
In response to Mr. Situ’s allegations, in October
2007, we formed an internal committee to investigate the
allegations and conduct an immediate physical inventory count of
our polysilicon materials. We found no material discrepancies as
compared to our financial records. We believe that
Mr. Situ’s allegations have no merit. Additionally,
our audit committee conducted an independent investigation into
the allegations made by Mr. Situ. The independent
investigation was primarily conducted by our audit
committee’s independent counsel, a major U.S. law firm, and
forensic accountants from a “big four” independent
accounting and consulting firm that was separate from our
external auditors, as well as independent experts in the
evaluation of silicon feedstock and the production of
multicrystalline solar wafers. The independent investigation
found no material errors in our stated silicon inventory
quantities as of August 31, 2007, and concluded that
Mr. Situ’s allegations of an inventory discrepancy
were incorrect because he had not taken into account all
locations where we stored our silicon feedstock. The independent
investigation further concluded that we were using each of our
various types of silicon feedstock in the production of our
multicrystalline solar wafers, and that a provision for obsolete
or excess silicon feedstock was not required. It is not possible
for us to reasonably estimate the amount of loss, if any, we
would incur in the event of an unfavorable outcome from the
resolution of this litigation.
We may be involved in similar or other allegations, litigations
or legal or administrative proceedings in the future. Any such
future allegations, lawsuits or proceedings could have a
material adverse effect on our business operations and adversely
affect the market prices of our ADSs.
Our
business depends on the continued services of our executive
officers and key personnel and our business may be severely
disrupted if we lose their services.
Our success depends on the continued services of our executive
officers and key personnel, in particular Mr. Xiaofeng
Peng, our founder, chairman and chief executive officer. We do
not maintain key-man life insurance on any of our executive
officers and key personnel. If one or more of our executive
officers and key personnel are unable or unwilling to continue
in their present positions, we may not be able to replace them
readily, if at all. As a result, our business may be severely
disrupted and we may have to incur additional expenses in order
to recruit and retain new personnel. In addition, if any of our
executives joins a competitor or forms a competing company, we
may lose some of our customers. Each of our executive officers
and key personnel has entered into an employment agreement with
us that contains confidentiality and non-competition provisions.
However, if any dispute arises between our executive officers or
key personnel and us, we cannot assure you, in light of
uncertainties associated with the PRC legal system, that these
agreements could be enforced in China where most of our
executive officers and key personnel reside and hold most of
their assets. See “— Risks Relating to Business
Operations in China — The uncertain legal environment
in China could limit the legal protections available to
you” in this report. In addition, our founder, chairman,
chief executive officer and controlling shareholder,
Mr. Xiaofeng Peng, in his personal capacity, and his family
members are considering and may invest or otherwise participate
in several alternative energy projects, including projects
involving thin-film solar technology, solar thermal, wind energy
and biofuels. To the extent that Mr. Peng devotes
significant time to any such projects, it may reduce his time
and
services devoted to our company as chairman and chief executive
officer, which could materially adversely affect our business.
See “Item 6 — Directors, Senior Management and
Employees — Directors and Senior Management.”
Our
principal shareholder, Mr. Xiaofeng Peng, has substantial
control over our company and his interests may not be aligned
with the interests of our shareholders.
Mr. Peng, our founder, chairman and chief executive
officer, currently beneficially owns 70.9% of our outstanding
share capital. As such, Mr. Peng will have substantial
control over our business, including decisions regarding
mergers, consolidations and the sale of all or substantially all
of our assets, election of directors, dividend policy and other
significant corporate actions. Mr. Peng may take actions
that are not in the best interest of our company or our
securities holders. For example, this concentration of ownership
may discourage, delay or prevent a change in control of our
company, which could deprive our shareholders of an opportunity
to receive a premium for their shares as part of a sale of our
company and might reduce the price of our ADSs. On the other
hand, if Mr. Peng is in favor of any of these actions,
these actions may be taken even if they are opposed by our other
shareholders, including you and those who invest in ADSs.
Mr. Peng, in his personal capacity, and his family members
are considering and may invest or otherwise participate in
several alternative energy projects, including projects
involving thin-film solar technology, solar thermal, wind energy
and biofuels. To the extent that Mr. Peng devotes
significant time to any such projects, it may reduce his time
and services devoted to our company as chairman and chief
executive officer, which could materially adversely affect our
business.
If
solar power is not adopted for wide commercial application, our
revenues may decline and we may be unable to sustain our
profitability.
The solar power market is at an early stage of development and
the extent of acceptance of solar power technology and products
is uncertain. Many factors may affect the viability of wide
commercial adoption and application of solar power technology,
including:
•
cost-effectiveness, performance and reliability of solar power
technology and products compared to conventional and other
renewable energy sources and products;
•
availability of government subsidies and economic incentives to
support the development of the solar power industry;
•
success of, or increased government support for, other
alternative energy generation technologies, such as fuel cells,
wind power, hydroelectric power and biomass energy;
•
fluctuations in economic and market conditions that affect the
viability of renewable energy sources, such as increases or
decreases in the prices of oil and other fossil fuels;
•
deregulation of the electric power industry and the broader
energy industry; and
•
levels of capital expenditures by end-users of solar energy
products, which tend to decrease when economic growth slows.
Market data on the solar power industry is not as readily
available as that on other more established industries where
trends can be assessed more reliably from data gathered over a
longer period of time. If solar power technology proves
unsuitable for wide commercial adoption and application or if
demand for solar power products fails to develop sufficiently,
we may not be able to grow our business or generate sufficient
revenues to sustain our profitability.
Technological
changes in the solar power industry could render our products
uncompetitive or obsolete, which could reduce our market share
and cause our net sales and profits to decline.
The solar power industry is characterized by evolving
technologies and standards. These technological evolutions and
developments place increasing demands on the improvement of our
products, such as higher photovoltaic efficiency and larger and
thinner wafers. Other companies may devise production
technologies that enable them to produce multicrystalline wafers
that could yield higher photovoltaic conversion efficiencies at
a lower cost than our products. Some of our competitors are
developing alternative and competing solar technologies
that may require significantly less silicon than
multicrystalline solar cells and modules, or no silicon at all.
Technologies developed or adopted by others may prove more
advantageous than ours for commercialization of solar products
and may render our products obsolete. As a result, we may need
to invest significant resources in research and development to
maintain our market position, keep pace with technological
advances in the solar power industry and effectively compete in
the future. Our failure to further refine and enhance our
multicrystalline wafers or to keep pace with evolving
technologies and industry standards could cause our products to
become uncompetitive or obsolete, which could in turn reduce our
market share and cause our net sales and profits to decline.
Unexpected
equipment failures or accidents, including the release of
hazardous materials, may lead to production curtailments or
shutdowns, personal injuries or damage to
properties.
Our wafer manufacturing processes use hazardous equipment, such
as DSS furnaces, squarers and wire saws. Such equipment requires
skills and experience for safe operation. We could experience
events such as equipment failures, explosions or fires due to
employee errors, equipment malfunctions, accidents,
interruptions in electricity or water cooling supplies, natural
disasters or other causes. In addition, such events could cause
damage to properties, personal injuries or even deaths. As a
result, we may in the future experience production curtailments
or shutdowns or periods of reduced production, which would
negatively affect our results of operations. In addition, our
polysilicon operations will involve the use, handling,
generation, processing, storage, transportation and disposal of
hazardous materials, which may result in fires, explosions,
spills and other unexpected or dangerous accidents causing
personal injuries or death, property damage, environmental
damage and business interruption. Any such event could result in
civil lawsuits or regulatory enforcement proceedings, which in
turn could lead to significant liabilities.
Our
strategy includes possible alliances and acquisitions and our
failure to successfully implement this strategy could have a
material adverse effect on our business.
As part of our strategy, we intend to consider entering into
strategic acquisitions and investments and establishing
strategic alliances with third parties in the solar industry.
For example, in January 2008, we acquired 33.5% of Jiangxi
Sinoma New Material Co., Ltd., or Jiangxi Sinoma, a Xinyu-based
crucible manufacturer, from Xinyu Chengdong Investment and
Construction Co., Ltd. for a consideration of approximately Rmb
16.8 million. We may engage in similar or other
acquisitions that will complement our expansion strategies.
Strategic acquisitions, investments and alliances with third
parties could subject us to a number of risks, including risks
associated with sharing proprietary information and loss of
control of operations that are material to our business.
Moreover, strategic acquisitions, investments and alliances may
be expensive to implement and subject us to the risk of
non-performance by a counterparty, which may in turn lead to
monetary losses that may materially adversely affect our
business.
Product
defects could result in increased costs, damage to our
reputation and loss of revenues and market share.
Our products may contain defects that are not detected until
after they are shipped or installed. For example, in July 2006,
we had sales returns of over 7,000 pieces of improperly cleaned
wafers due to the malfunction of our automated cleaning system
and the limited operating experience of our employees. In 2007,
we recorded an inventory write-down of $4.2 million due to
defects identified in certain of our finished goods products. In
the ordinary course of our business, we also encounter periodic
sales returns due to non-conformity with customers’
specifications or product defects. In each case, we are required
to replace our products promptly. Product defects and the
possibility of product defects could cause significant damage to
our market reputation and reduce our product sales and market
share. If we cannot successfully maintain the consistency and
quality throughout our production process, this will result in
substandard quality or performance of our wafers, including
their reduced photovoltaic efficiency and higher wafer breakage.
If we deliver solar wafers with defects, or if there is a
perception that our products are of substandard quality, we may
incur substantially increased costs associated with replacements
of wafers, our credibility and market reputation will be harmed
and sales of our wafers may be adversely affected.
We
will become subject to the management report and auditor
attestation report requirements of Section 404 of the
Sarbanes-Oxley Act as of the end of our fiscal year ending
December 31, 2008; if we fail to maintain an effective
system of internal control over financial reporting, we may be
unable to accurately report our financial results or prevent
fraud, and investor confidence and the market price of our ADSs
may be adversely affected.
Upon completion of our IPO in June 2007, we became a public
company in the United States that is subject to the
Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act.
Section 404 of the Sarbanes-Oxley Act and the related SEC
rules require, beginning with our fiscal year ending
December 31, 2008, that we evaluate the effectiveness, as
of the end of each fiscal year, of our internal control over
financial reporting and include in our annual reports on
Form 20-F
for each fiscal year (i) a report of our management on our
internal control over financial reporting that contains, among
other things, management’s assessment of the effectiveness
of our internal control over financial reporting as of the end
of the most recent fiscal year, including a statement whether or
not internal control over financial reporting is effective and
(ii) the opinion of our registered public accounting firm,
either unqualified or adverse, as to whether we maintained, in
all material respects, effective internal control over financial
reporting as of the end of such fiscal year. Our management and
auditors will not be permitted to conclude that our internal
control over financial reporting is effective if there are one
or more “material weaknesses” in our internal control
over financial reporting, as defined in rules of the SEC and the
U.S. Public Company Accounting Oversight Board, or the
PCAOB. Our management or our auditors may conclude that our
efforts to remediate the problems identified below were not
successful or that otherwise our internal control over financial
reporting is not effective. This could result in an adverse
reaction in the financial marketplace due to a loss of investor
confidence in the reliability of our reporting processes, which
could adversely impact the market price of our ADSs. We will
need to incur significant costs and use significant management
and other resources in order to comply with Section 404 of
the Sarbanes-Oxley Act.
In the past, we had certain deficiencies in our internal
controls. For example, in the course of auditing our
consolidated financial statements for the year ended
December 31, 2006, our independent registered public
accounting firm noted and communicated to us a significant
deficiency and other weaknesses in our internal control over
financial reporting. The significant deficiency identified by
our independent registered public accounting firm was that our
chief financial officer joined us in August 2006 and that we did
not previously have any personnel who were familiar with
U.S. GAAP. We did not have sufficient personnel with
adequate expertise to ensure that we can produce financial
statements in accordance with U.S. GAAP on a timely basis.
As more fully described in “Item 5. Operating and
Financial Review and Prospects — A. Operating
Results — Internal Control over Financial
Reporting,” following the identification of this
significant deficiency and other weaknesses, we adopted certain
steps, and we plan to implement additional steps, to address
them and to improve our internal control over financial
reporting generally. If we fail to maintain an effective system
of internal control over financial reporting, we may be unable
to accurately report our financial results or prevent fraud, and
investor confidence and the market price of our ADSs may be
adversely affected.
If we
are unable to attract, train and retain technicians and a
skilled labor force, our business may be materially adversely
affected.
Our continued success depends, to a significant extent, on our
ability to attract, train and retain technicians and a skilled
labor force for our business. Recruiting and retaining capable
technicians, particularly those with expertise in the solar
power industry, are vital to our success. Our principal
operations are located at Xinyu city of Jiangxi province, a
relatively less developed region compared to coastal cities in
China. Our location adds difficulties to our recruiting efforts.
In addition, there exists substantial competition for qualified
technicians in the solar power industry, and there can be no
assurance that we will be able to attract or retain technicians.
Neither can we assure you that we will be able to recruit, train
and retain skilled workers. If we fail to attract and retain
qualified employees, our business and prospects may be
materially adversely affected.
Fluctuations
in exchange rates could adversely affect our
business.
A significant portion of our sales is denominated in Renminbi.
Our costs and capital expenditures are largely denominated in
U.S. dollars and euros. Therefore, fluctuations in currency
exchange rates could have a material
adverse effect on our financial condition and results of
operations. Fluctuations in exchange rates, particularly among
the U.S. dollar, Renminbi and euro, affect our gross and
net profit margins and could result in foreign exchange and
operating losses.
Our financial statements are expressed in U.S. dollars but
the functional currency of our principal operating subsidiaries,
Jiangxi LDK Solar, Jiangxi LDK PV Silicon Technology Co., Ltd.,
or Jiangxi LDK PV Silicon and Jiangxi LDK Solar Polysilicon Co.,
Ltd., or Jiangxi LDK Polysilicon, is Renminbi. The value of your
investment in our ADSs will be affected by the foreign exchange
rate between U.S. dollars and Renminbi. In addition, to the
extent we hold assets denominated in U.S. dollars,
including the net proceeds to us from this offering, any
appreciation of Renminbi against the U.S. dollar could
result in a charge to our income statement and a reduction in
the value of our U.S. dollar denominated assets. On the
other hand, if we decide to convert our Renminbi amounts into
U.S. dollars for the purpose of making payments for
dividends on our ordinary shares or ADSs or for other business
purposes, including foreign debt service, a decline in the value
of Renminbi against the U.S. dollar could reduce the
U.S. dollar equivalent amounts of the Renminbi we convert.
In addition, a depreciation of Renminbi against the
U.S. dollar could reduce the U.S. dollar equivalent
amounts of our financial results, the value of your investment
in our company and the dividends we may pay in the future, if
any, all of which may have a material adverse effect on the
price of our ADSs.
We incurred a net foreign currency loss of $1.3 million and
$1.7 million during the years ended December 31, 2006
and 2007, respectively. We cannot predict the impact of future
exchange rate fluctuations on our results of operations and may
incur additional net foreign currency losses in the future.
During the year ended December 31, 2007, we have entered
into certain foreign exchange forward contracts to reduce the
effect of our foreign exchange exposure, but we cannot assure
you that such hedging activities will be effective in managing
our foreign exchange risk exposure.
Compliance
with environmental regulations is expensive, and noncompliance
may result in adverse publicity and potentially significant
monetary damages and fines or suspension of our business
operations.
We are required to comply with all national and local
regulations regarding protection of the environment. Compliance
with environmental regulations is expensive. In addition, if
more stringent regulations are adopted by the PRC government in
the future, the costs of compliance with PRC environmental
protection regulations could increase. Upon the completion of
our polysilicon production facilities, we will use, generate,
store and discharge toxic, volatile and otherwise hazardous
chemicals and wastes in our research and development and
production processes, and we are subject to regulations and
periodic monitoring by local environmental protection
authorities and are required to comply with all PRC national and
local environmental protection laws and regulations. Under PRC
environmental regulations, we are required to obtain a pollutant
discharging permit and a safety appraisal, which includes a
permit for the storage and use of hazardous chemicals and a
permit for the use of atmospheric pressure containers, from
relevant governmental authorities after we have completed the
installation of our manufacturing lines but before the
manufacturing lines commence commercial production. We are also
required to undergo an environmental protection examination and
obtain approval with relevant governmental authorities before
the manufacturing lines commence full production. We have not
yet obtained all of the necessary approvals and permits for our
polysilicon production plant currently under construction, and
we cannot assure you that we will be able to obtain these
approvals and permits upon completion of the construction or at
all. The relevant governmental authorities have the right to
impose fines or a deadline to cure any non-compliance, or to
order us to cease production if we fail to comply with these
requirements. If we fail to comply with present or future
environmental regulations, we may be subject to substantial
fines or damages or suspension of our business operations, and
our reputation may be harmed.
We
have limited insurance coverage and may incur losses resulting
from product liability claims or business
interruptions.
We are exposed to risks associated with product liability claims
in the event that the use of our solar wafers and ingots results
in injury. Since our solar wafers and ingots are made into
electricity producing devices, it is possible that users could
be injured or killed by devices that use our solar wafers and
ingots, whether by product malfunctions, defects, improper
installations or other causes. Due to our limited historical
experience, we are
unable to predict whether product liability claims will be
brought against us in the future or to predict the effect of any
resulting adverse publicity on our business. The successful
assertion of product liability claims against us could result in
potentially significant monetary damages and require us to make
significant payments. Moreover, we do not carry any product
liability insurance and may not have adequate resources to
satisfy a judgment in the event of a successful claim against
us. We do not carry any business interruption insurance. As the
insurance industry in China is still in its early stage of
development, even if we decide to take out business interruption
coverage, such insurance available in China offers limited
coverage compared to that offered in many other countries. Any
business disruption or natural disaster could result in
substantial losses and diversion of our resources.
Increases
in electricity costs or shortage or interruption of electricity
supply may adversely affect our operations.
We consume a significant amount of electricity in our wafer
manufacture. In August 2006, as support to our wafer production
in Xinyu city, the Xinyu Industry Development District
government agreed to subsidize us for our utility charges over
and above Rmb 0.40 per
kilowatt-hour.
At the current market rate of Rmb 0.59 per
kilowatt-hour,
we are effectively subsidized by Rmb 0.19, or $0.03, per
kilowatt-hour
we use for our wafer production. In the years ended
December 31, 2006 and 2007, we received an aggregate of
$0.8 million and $3.1 million in such government
subsidies. This utility arrangement is valid for three years
from August 2006 and may be extended only with consent of both
parties.
In addition, as support to our polysilicon production in Xinyu
city, the Xinyu Industry Development District government further
agreed in September 2007 to subsidize us for our utility charges
over and above Rmb 0.25 per
kilowatt-hour
consumed by our polysilicon production. At the current market
rate of Rmb 0.59 per
kilowatt-hour,
we are effectively subsidized by Rmb 0.34, or $0.04, per
kilowatt-hour
we use. We did not receive any such government subsidies during
the year ended December 31, 2007 as our polysilicon
production had not commenced. This new utility arrangement is
valid from the commencement of our polysilicon production
operations. Although this agreement does not provide for an
expiration date, there is no assurance that the government will
not terminate it for reasons beyond our control. Polysilicon
production is energy-intensive and is highly dependent on
continuous electricity supply. Our results of operations will be
materially adversely affected if our electricity supply is
interrupted or electricity costs increase upon expiration or
termination of our arrangements with the government.
Moreover, with the rapid development of the PRC economy, demand
for electricity has continued to increase. There have been
shortages in electricity supply in various regions across China,
especially during winter when weather is bad and during summer
peak seasons. For instance, in early 2008, due to severe weather
conditions over a period of two weeks, supply of electricity to
our plant was curtailed as a result of destructions of some of
the national grid lines in certain provinces in China, including
Jiangxi. Consequently, we experienced delays in some of our
shipments to customers and some of the shipments from our
suppliers as a result of highway closures and power outages in
various parts of China. In the summer of 2006, our production
was also significantly disrupted due to power blackouts in Xinyu
city. To prevent similar peak season blackouts, we have
installed a backup power transformer substation at our Xinyu
site with an installed capacity of 40 million
volt-amperes
to support our current operations. In addition, we have
substantially completed the installation of another backup power
transformer substation at our Xinyu site with the same capacity
to support our expansion program through the end of 2008.
However, we cannot assure you that there will be no interruption
or shortages in our electricity supply or that there will be
sufficient electricity available to us to meet our future
requirements. Increases in electricity costs or shortages in
electricity supply may disrupt our normal operations and
adversely affect our profitability.
Failure
to protect our intellectual property rights, know-how and
technology may undermine our competitive position.
We have developed various production process related know-how
and technologies in the production of solar wafers and ingots.
Such know-how and technologies play a critical role in our
quality assurance and cost reduction. In addition, we have
implemented a number of research and development programs with a
view to developing techniques and processes that will improve
production efficiency and product quality. Our intellectual
property and proprietary rights arising out of these research
and development programs will be crucial in maintaining our
competitive edge in the solar wafer industry. We currently do
not have any patent or patent application pending in
China or elsewhere. We currently use contractual arrangements
with employees and trade secret protections to protect our
intellectual property and proprietary rights. Nevertheless,
contractual arrangements afford only limited protection and the
actions we may take to protect our intellectual property and
proprietary rights may not be adequate. In addition, others may
obtain knowledge of our know-how and technologies through
independent development. Our failure to protect our production
process related know-how and technologies
and/or our
intellectual property and proprietary rights may undermine our
competitive position. Third parties may infringe or
misappropriate our proprietary technologies or other
intellectual property and proprietary rights. Policing
unauthorized use of proprietary technology can be difficult and
expensive. Also, litigation, which can be costly and divert
management attention and other resources away from our business,
may be necessary to enforce our intellectual property rights,
protect our trade secrets or determine the validity and scope of
our proprietary rights. We cannot assure you that the outcome of
such potential litigation will be in our favor. An adverse
determination in any such litigation will impair our
intellectual property and proprietary rights and may harm our
business, prospects and reputation.
We may
be exposed to infringement, misappropriation or other claims by
third parties and an adverse determination could result in us
paying significant damages.
Our success depends on our ability to use and develop our
technology and know-how and to manufacture and sell our solar
wafers and ingots without infringing the intellectual property
or other rights of third parties. We do not have, and have not
applied for, any patents for our proprietary technologies in
China or elsewhere. We may be subject to litigation involving
claims of patent infringement or violation of intellectual
property rights of third parties. The validity and scope of
claims relating to solar power technology patents involve
complex scientific, legal and factual questions and analyses
and, therefore, may be highly uncertain. The defense and
prosecution of intellectual property suits, patent opposition
proceedings, trademark disputes and related legal and
administrative proceedings can be both costly and time consuming
and may significantly divert our resources and the attention of
our technical and management personnel. An adverse ruling in any
such litigation or proceedings could subject us to significant
liability to third parties, require us to seek licenses from
third parties, to pay ongoing royalties, or to redesign our
products or subject us to injunctions prohibiting the
manufacture and sale of our products or the use of our
technologies. Protracted litigation could also result in our
customers or potential customers deferring or limiting their
purchase or use of our products until resolution of such
litigation.
We
have granted, and may continue to grant, stock options under our
stock incentive plan and our net income could be adversely
impacted.
We adopted a stock incentive plan in 2006. As of the date of
this report, we have outstanding stock options under our stock
incentive plan with respect to 10,647,803 ordinary shares, of
which 8,147,017 were granted to our directors, employees,
consultants and service providers. In December 2004, the
Financial Accounting Standards Board, or FASB, issued Statement
of Financial Accounting Standards, or SFAS, No. 123R,
“Share-Based Payment.” This statement, which became
effective in the first quarter of 2006, prescribes how we
account for share-based compensation and may have an adverse
impact on our results of operations or the price of our ADSs.
SFAS No. 123R requires us to recognize share-based
compensation as compensation expense in the statement of
operations based on the fair value of equity awards on the date
of the grant, with the compensation expense recognized over the
period in which the recipient is required to provide service in
exchange for the equity award. The additional expenses
associated with share-based compensation may reduce the
attractiveness of issuing stock options under our stock
incentive plan. However, if we do not grant stock options or
reduce the number of stock options that we grant, we may not be
able to attract and retain key personnel. If we grant more stock
options to attract and retain key personnel, the expenses
associated with share-based compensation may adversely affect
our net income.
Most
of our production, storage, administrative and research and
development facilities are located in close proximity to one
another in Xinyu city of Jiangxi province. Any damage or
disruption at these facilities would have a material adverse
effect on our business, financial condition and results of
operations.
Our production, storage, administrative, research and
development facilities are located in close proximity to one
another in Xinyu city of Jiangxi province in China. A natural
disaster such as fire, floods, typhoons or earthquakes, or other
unanticipated catastrophic events, including power interruption,
telecommunications failures, equipment failures, explosions,
fires, break-ins, terrorist acts or war, could significantly
disrupt our ability to manufacture our products and operate our
business. If any of our production facilities or material
equipment were to experience any significant damage or downtime,
we would be unable to meet our production targets and our
business would suffer. Any damage or disruption at these
facilities would have a material adverse effect on our business,
financial condition and results of operations.
Risks
Relating to Business Operations in China
Changes
in PRC political and economic policies and conditions could
adversely affect our business and prospects.
China has been, and will continue to be, our primary production
base and currently almost all of our assets are located in
China. While the PRC government has been pursuing economic
reforms to transform its economy from a planned economy to a
market-oriented economy since 1978, a substantial part of the
PRC economy is still being operated under various controls of
the PRC government. By imposing industrial policies and other
economic measures, such as control of foreign exchange, taxation
and foreign investment, the PRC government exerts considerable
direct and indirect influence on the development of the PRC
economy. Many of the economic reforms carried out by the PRC
government are unprecedented or experimental and are expected to
be refined and improved over time. Other political, economic and
social factors may also lead to further adjustments of the PRC
reform measures. This refining and adjustment process may not
necessarily have a positive effect on our operations and our
future business development. For example, the PRC government has
in the past implemented a number of measures intended to slow
down certain segments of the PRC economy that the government
believed to be overheating, including raising benchmark interest
rates of commercial banks, reducing money supply and placing
additional limitations on the ability of commercial banks to
make loans by raising bank reserves against deposits. Our
business, prospects and results of operations may be materially
adversely affected by changes in the PRC economic and social
conditions and by changes in the policies of the PRC government,
such as measures to control inflation, changes in the rates or
method of taxation and the imposition of additional restrictions
on currency conversion.
Changes
in foreign exchange and foreign investment regulations in China
may affect our ability to invest in China and the ability of our
PRC subsidiary to pay dividends and service debts in foreign
currencies.
Renminbi is not a freely convertible currency at present. The
PRC government regulates conversion between Renminbi and foreign
currencies. Changes in PRC laws and regulations on foreign
exchange may result in uncertainties in our financing and
operating plans in China. Over the years, China has
significantly reduced the government’s control over routine
foreign exchange transactions under current accounts, including
trade and service related foreign exchange transactions, payment
of dividends and service of foreign debts. In accordance with
the existing foreign exchange regulations in China, our PRC
subsidiary, Jiangxi LDK Solar, is able to pay dividends and
service debts in foreign currencies without prior approval from
the PRC State Administration of Foreign Exchange, or SAFE, by
complying with certain procedural requirements. However, there
can be no assurance that the current PRC foreign exchange
policies regarding debt service and payment of dividends in
foreign currencies will continue in the future. Changes in PRC
foreign exchange policies may have a negative impact on the
ability of our PRC subsidiary to service its foreign
currency-denominated indebtedness and to distribute dividends to
us in foreign currencies.
Foreign exchange transactions by our PRC subsidiary under the
capital account continue to be subject to significant foreign
exchange controls. Subsequent to this offering, we have the
choice, as permitted by the PRC foreign investment regulations,
to invest our net proceeds from this offering in the form of
registered capital or a shareholder loan into our PRC subsidiary
to finance our operations in China. Our choice of investment is
affected by
the relevant PRC regulations with respect to capital-account and
current-account foreign exchange transactions in China. In
addition, our transfer of funds to our subsidiary in China is
subject to approval by PRC governmental authorities in case of
an increase in registered capital, or subject to registration
with PRC governmental authorities in case of a shareholder loan.
These limitations on the flow of funds between us and our PRC
subsidiary could restrict our ability to act in response to
changing market conditions.
The
uncertain legal environment in China could have a negative
impact on our business and prospects and also limit the legal
protections available to you.
Our principal operating subsidiaries, Jiangxi LDK Solar, Jiangxi
LDK PV Silicon and Jiangxi LDK Polysilicon, are wholly
foreign-owned enterprises in China and are subject to laws and
regulations applicable to foreign investments in China in
general and laws and regulations applicable to wholly
foreign-owned enterprises in particular. The PRC legal system is
a civil law system based on written statutes. Unlike the common
law system, the civil law system is a system in which decided
legal cases have little precedential value. When the PRC
government started its economic reform in 1978, it began to
formulate and promulgate a comprehensive system of laws and
regulations to provide general guidance on economic and business
practices in China and to regulate foreign investments. China
has made significant progress in the promulgation of laws and
regulations dealing with economic matters such as corporate
organization and governance, foreign investment, commerce,
taxation and trade. However, the promulgation of new laws,
changes in existing laws and abrogation of local regulations by
national laws may have a negative impact on our business and
prospects. In addition, as these laws, regulations and legal
requirements are relatively recent and because of the limited
volume of published cases and their non-binding nature, the
interpretation and enforcement of these laws, regulations and
legal requirements involve significant uncertainties. These
uncertainties could limit the legal protections available to
foreign investors, including you.
Expiration
of, or changes to, current PRC tax incentives that our business
enjoys could have a material adverse effect on our results of
operations.
Under former PRC laws and regulations, a company established in
China was typically subject to a national enterprise income tax
at the rate of 30% on its taxable income and a local enterprise
income tax at the rate of 3% on its taxable income. The PRC
government provided various incentives to foreign-invested
enterprises to encourage foreign investments. Such incentives
include reduced tax rates and other measures. Foreign-invested
enterprises that were determined by PRC tax authorities to be
manufacturing companies with authorized terms of operation for
more than ten years were eligible for:
•
a two-year exemption from the national enterprise income tax
beginning with their first profitable year; and
•
a 50% reduction of their applicable national enterprise income
tax rate for the succeeding three years.
The local preferential enterprise taxation treatment was within
the jurisdiction of the local provincial authorities as
permitted under the prior PRC tax laws relating to
foreign-invested enterprises. The local tax authorities would
decide whether to grant any tax preferential treatment to
foreign-invested enterprises on basis of their local conditions.
The Jiangxi provincial government announced that energy
companies with authorized terms of operation for more than ten
years were eligible for:
•
a five-year exemption from the 3% local enterprise income tax
from their first profitable year; and
•
a 50% reduction of their local enterprise income tax rate for
the succeeding five years.
Under former PRC laws and regulations, Jiangxi LDK Solar, as a
foreign invested manufacturing enterprise was entitled to a
two-year exemption from the national enterprise income tax for
2006 and 2007 and would be subject to a reduced national
enterprise income tax rate of 15% from 2008 through 2010.
Likewise, Jiangxi LDK Solar was entitled to a five-year
exemption from the local enterprise income tax beginning in 2006
and would be subject to a reduced local enterprise income tax
rate of 1.5% from 2011 through 2015. When these tax benefits
expire, the effective tax rate of Jiangxi LDK Solar will
increase, which will result in an increase in our income tax
expenses. Jiangxi LDK PV Silicon and Jiangxi LDK Polysilicon do
not enjoy any preferential tax treatment in China.
In March 2007, the National People’s Congress of China
enacted a new Enterprise Income Tax Law, which became effective
on January 1, 2008. The new tax law imposes a unified
income tax rate of 25% on all domestic enterprises and
foreign-invested enterprises unless they qualify under certain
limited exceptions. The new tax law permits companies to
continue to enjoy their preferential tax treatment under the
prior tax regime until such treatment expires in accordance with
its terms, on the condition that such preferential tax treatment
is available under the grandfather clause of the new tax law. If
our current tax benefits expire or otherwise become unavailable
to us for any reason, our profitability may be materially
adversely affected.
We may
be deemed a PRC resident enterprise under the new PRC Enterprise
Income Tax Law and be subject to the PRC taxation on our
worldwide income.
We are Cayman Islands holding company with substantially all of
our operations conducted through our operating subsidiaries in
China. Under the Income Tax Law for Enterprises with Foreign
Investment and Foreign Enterprises effective prior to
January 1, 2008, any dividends payable by foreign-invested
enterprises, such as our PRC subsidiaries, to their non-PRC
investors, such as our Cayman Islands holding company, were
exempt from any PRC withholding tax. In addition, any dividends
payable, or distributions made, by us to holders or beneficial
owners of our ADSs would not have been subject to any PRC tax,
provided that such holders or beneficial owners, including
individuals and enterprises, were not deemed to be PRC residents
under the PRC tax law and had not become subject to PRC tax.
Under the new PRC Enterprise Income Tax Law, if our Cayman
Islands holding company continues to be treated as a foreign
investor, or a “non-resident enterprise” as defined in
the new tax law, dividends and distributions from our PRC
subsidiaries to us will be subject to a 10% withholding tax. The
Cayman Islands where we are incorporated has no tax treaty with
China entitling us to any withholding tax lower than 10%.
The new PRC Enterprise Income Tax Law, however, also provides
that enterprises established outside China whose “de facto
management bodies” are located in China are considered
“resident enterprises” and will generally be subject
to the uniform 25% enterprise income tax rate as to their global
income. Under the implementation regulations issued by the State
Council relating to the new PRC Enterprise Income Tax Law,
“de facto management bodies” is defined as the bodies
that have material and overall management control over the
business, personnel, accounts and properties of an enterprise.
Substantially all of our management is currently based in China,
and may remain in China. Therefore, we may be treated as a PRC
resident enterprise for PRC enterprise income tax purposes
subject to the uniform 25% enterprise income tax rate as to our
global income. See the risk factor entitled
“— Dividends payable by us to our foreign
investors and gain on the sale of our ADSs may become subject to
withholding taxes under PRC tax laws” below.
Dividends
payable by us to our foreign investors may become subject to
withholding taxes under PRC tax laws.
Under the new PRC Enterprise Income Tax Law and its
implementation regulations, PRC income tax at the rate of 10% is
applicable to dividends payable to investors that are
“non-resident enterprises” (and that do not have an
establishment or place of business in China, or that have such
establishment or place of business but the relevant income is
not effectively connected with such establishment or place of
business) to the extent such dividends are sourced within China
and we are considered a “resident enterprise” in
China. Similarly, any gain realized on the transfer of our
shares or ADSs representing our shares by such investors is also
subject to 10% PRC income tax if such gain is regarded as income
derived from sources within China and we are considered a
“resident enterprise” in China. If we are required
under the new PRC Enterprise Income Tax Law to withhold PRC
income tax on our dividends payable to our foreign shareholders,
or if you are required to pay PRC income tax on the transfer of
the ADSs, the value of your investment in our shares or ADSs may
be materially adversely affected.
We
rely principally on dividends paid by our subsidiaries to fund
our cash and financing requirements, and any limitation on the
ability of our PRC subsidiaries to pay dividends to us could
have a material adverse effect on our ability to conduct our
business.
We are a holding company and rely principally on dividends paid
by our subsidiaries for cash requirements, including the funds
necessary to service any debt we incur. If any of our
subsidiaries incurs debt in its own name in the future, the
instruments governing the debt may restrict dividends or other
distributions on its equity interest to
us. Furthermore, applicable PRC laws, rules and regulations
permit payment of dividends by our PRC entities on a combined
basis only out of their retained earnings, if any, determined in
accordance with PRC accounting standards. Our PRC entities are
required to set aside a certain percentage of their after-tax
profit based on PRC accounting standards each year for their
reserve fund in accordance with the requirements of relevant
laws and provisions in their respective articles of
associations. As a result, our PRC entities combined may be
restricted in their ability to transfer any portion of their net
income to us whether in the form of dividends, loans or
advances. Any limitation on the ability of our subsidiaries to
pay dividends to us could materially adversely limit our ability
to grow, make investments or acquisitions that could be
beneficial to our businesses, pay dividends or otherwise fund
and conduct our business. Under the new PRC Enterprise Income
Tax Law and implementation regulations, PRC income tax at the
rate of 10% is applicable to dividends paid by PRC enterprises
to “non-resident enterprises” (enterprises that do not
have an establishment or place of business in China, or that
have such establishment or place of business but the relevant
income is not effectively connected with such establishment or
place of business) subject to the application of any relevant
income tax treaty that China has entered into, which provides
for a lower withholding tax rate. If we or our non-PRC
subsidiaries are considered “non-resident
enterprises,” any dividend that we or any such non-PRC
subsidiary receive from our PRC subsidiaries may be subject to
PRC taxation at the 10% rate (or lower treaty rate).
Recent
PRC regulations relating to the establishment of offshore
special purpose companies by PRC residents may subject our PRC
resident shareholders to personal liability and limit our
ability to acquire PRC companies or to inject capital into our
PRC subsidiary, limit our PRC subsidiary’s ability to
distribute profits to us, or otherwise materially adversely
affect us.
The SAFE issued a public notice in October 2005, together with
its implementation procedures and May 2007 clarifications issued
by SAFE, or the SAFE notice, requiring PRC residents, including
both legal persons and natural persons, to register with the
competent local SAFE branch before establishing or controlling
any company outside China, referred to as an “offshore
special purpose company,” for the purpose of acquiring any
assets of or equity interest in PRC companies and raising funds
from overseas. In addition, any PRC resident that is the
shareholder of an offshore special purpose company is required
to amend its SAFE registration with the local SAFE branch with
respect to that offshore special purpose company in connection
with any increase or decrease of capital, transfer of shares,
merger, division, equity investment or creation of any security
interest over any assets located in China. If any PRC
shareholder of an offshore special purpose company fails to make
the required SAFE registration and amendment, the PRC
subsidiaries of that offshore special purpose company may be
prohibited from distributing their profits and the proceeds from
any reduction in capital, share transfer or liquidation to the
offshore special purpose company. Moreover, failure to comply
with the SAFE registration and amendment requirements described
above could result in liability under PRC laws for evasion of
applicable foreign exchange restrictions. Our current beneficial
owners who are PRC residents have registered with the local SAFE
branch as required under the SAFE notice. The failure of these
beneficial owners to amend their SAFE registrations in a timely
manner pursuant to the SAFE notice or the failure of future
beneficial owners of our company who are PRC residents to comply
with the registration procedures set forth in the SAFE notice
may subject such beneficial owners to fines and legal sanctions
and may also result in restrictions on our PRC subsidiary’s
ability to distribute profits to us or otherwise materially
adversely affect our business.
We
face risks related to health epidemics and other outbreaks of
contagious diseases, including avian influenza, or avian flu,
and SARS.
Our business could be adversely affected by the effects of avian
flu, SARS or other epidemic outbreak. There have been reports of
outbreaks of a highly pathogenic avian flu, caused by the H5N1
virus, in certain regions of Asia and Europe. In 2005 and 2006,
there were reports on the occurrences of avian flu in various
parts of China, including a few confirmed human cases. An
outbreak of avian flu in the human population could result in a
widespread health crisis that could adversely affect the
economies and financial markets of many countries, particularly
in Asia. Additionally, any recurrence of SARS, a highly
contagious form of atypical pneumonia, similar to the occurrence
in 2003 which affected China, Hong Kong, Taiwan, Singapore,
Vietnam and certain other countries, would also have similar
adverse effects. These outbreaks of contagious diseases and
other adverse public health developments in China would have a
material adverse effect on our business operations. These could
include our ability to travel or
ship our products outside China as well as temporary closure of
our manufacturing facilities. Such closures or travel or
shipment restrictions would severely disrupt our business
operations and adversely affect our financial condition and
results of operations. We have not adopted any written
preventive measures or contingency plans to combat any future
outbreak of avian flu, SARS or any other epidemic.
Risks
Relating to Our ADSs and Shares
Future
issuances of ordinary shares, ADSs or equity-linked securities
may dilute the ownership interest of our existing shareholders
and depress the trading price of our ADSs.
Any future issuance by us of ordinary shares, ADSs or
equity-linked securities could dilute the interests of our
existing shareholders and could depress the trading price of our
ADSs. We may issue equity-linked securities, such as convertible
notes, in the future for a number of reasons, including to
finance our operation and business expansion plans,
acquisitions, strategic collaborations or other transactions, to
adjust our ratio of debt to equity and to satisfy our
obligations upon the exercise of outstanding warrants or options
or for other reasons. Sales of a substantial number of ADSs or
other equity-linked securities in the public market could
depress the market price of our ADSs, and impair our ability to
raise capital through the sale of additional equity or
equity-linked securities. We cannot predict the effect that
future sales of our ADSs or other equity-linked securities would
have on the market price of our ADSs.
Holders
of ADSs have fewer rights than shareholders and must act through
the depositary to exercise those rights.
Holders of ADSs do not have the same rights of our shareholders
and may only exercise the voting rights with respect to the
underlying ordinary shares in accordance with the provisions of
the deposit agreement. Under our amended and restated articles
of association, the minimum notice period required to convene a
general meeting is 10 days. When a general meeting is
convened, ADS holders may not receive sufficient notice of a
shareholders’ meeting to permit such holders to withdraw
their ordinary shares to allow them to cast their vote with
respect to any specific matter. If requested in writing by us,
the depositary will mail a notice of such a meeting to ADS
holders. In addition, the depositary and its agents may not be
able to send voting instructions to ADS holders or carry out ADS
holders’ voting instructions in a timely manner.
Furthermore, the depositary and its agents will not be
responsible for any failure to carry out any instructions to
vote, for the manner in which any vote is cast or for the effect
of any such vote. As a result, you may not be able to exercise
your right to vote and you may lack recourse if the ADSs are not
voted as you requested. In addition, in your capacity as an ADS
holder, you will not be able to call a shareholder meeting.
You
may be subject to limitations on transfers of your
ADSs.
The ADSs are transferable on the books of the depositary.
However, the depositary may close its transfer books at any time
or from time to time when it deems expedient in connection with
the performance of its duties. In addition, the depositary may
refuse to deliver, transfer or register transfers of ADSs
generally when our books or the books of the depositary are
closed, or at any time if we or the depositary deem it advisable
to do so because of any requirement of law or of any government
or governmental body, or under any provision of the deposit
agreement, or for any other reason.
The
right of ADS holders to participate in any future rights
offerings may be limited, which may cause dilution to their
holdings and they may not receive cash dividends if it is
impractical to make them available to such
holders.
We may from time to time distribute rights to our shareholders,
including rights to acquire our securities. However, we cannot
make rights available to ADS holders in the United States unless
we register the rights and the securities to which the rights
relate under the Securities Act of 1933, as amended, or the
Securities Act, or an exemption from the registration
requirements is available. Also, under the deposit agreement,
the depositary will not make rights available to ADS holders
unless the distribution to ADS holders of both the rights and
any related securities are either registered under the
Securities Act, or exempted from registration under the
Securities Act. We
are under no obligation to file a registration statement with
respect to any such rights or securities or to endeavor to cause
such a registration statement to be declared effective.
Moreover, we may not be able to establish an exemption from
registration under the Securities Act. Accordingly, in the event
we conduct any rights offering in the future, the depositary may
not make such rights available to holders of ADSs or may dispose
of such rights and make the net proceeds available to such
holders. As a result, ADS holders may be unable to participate
in our rights offerings and may experience dilution in their
holdings.
In addition, the depositary of our ADSs has agreed to pay to ADS
holders the cash dividends or other distributions it or the
custodian receives on our ordinary shares or other deposited
securities after deducting its fees and expenses. ADS holders
will receive these distributions in proportion to the number of
ordinary shares their ADSs represent. However, the depositary
may, at its discretion, decide that it is inequitable or
impractical to make a distribution available to any holders of
ADSs. As a result, the depositary may decide not to make the
distribution and ADS holders will not receive such distribution.
Our
articles of association contain anti-takeover provisions that
could have a material adverse effect on the rights of holders of
our ordinary shares and ADSs.
Our articles of association limit the ability of others to
acquire control of our company or cause us to engage in
change-of-control transactions. These provisions could have the
effect of depriving our shareholders of an opportunity to sell
their shares at a premium over prevailing market prices by
discouraging third parties from seeking to obtain control of our
company in a tender offer or similar transaction. For example,
our board of directors has the authority, without further action
by our shareholders, to issue preferred shares in one or more
series and to fix their designations, powers, preferences,
privileges, and relative participating, optional or special
rights and the qualifications, limitations or restrictions,
including dividend rights, conversion rights, voting rights,
terms of redemption and liquidation preferences, any or all of
which may be greater than the rights associated with our
ordinary shares, in the form of ADS or otherwise. Preferred
shares could be issued quickly with terms calculated to delay or
prevent a change in control of our company or make removal of
management more difficult. If our board of directors decides to
issue preferred shares, the price of our ADSs may fall and the
voting and other rights of the holders of our ordinary shares
and ADSs may be materially adversely affected.
We are
a Cayman Islands company and, because judicial precedent
regarding the rights of shareholders is more limited under
Cayman Islands law than that under U.S. law, ADS holders may
have less protection for their shareholder rights than such
holders would under U.S. law.
Our corporate affairs are governed by our amended and restated
memorandum and articles of association, the Cayman Islands
Companies Law and the common law of the Cayman Islands. The
rights of shareholders to take action against the directors,
actions by minority shareholders and the fiduciary
responsibilities of our directors to us under Cayman Islands law
are to a large extent governed by the common law of the Cayman
Islands. The common law of the Cayman Islands is derived in part
from comparatively limited judicial precedent in the Cayman
Islands as well as that from English common law, which has
persuasive, but not binding, authority on a court in the Cayman
Islands. The rights of our shareholders and the fiduciary
responsibilities of our directors under Cayman Islands law are
not as clearly established as they would be under statutes or
judicial precedent in some jurisdictions in the United States.
In particular, the Cayman Islands has a less developed body of
securities laws than the United States. In addition, some
U.S. states, such as Delaware, have more fully developed
and judicially interpreted bodies of corporate law than the
Cayman Islands. In addition, Cayman Islands companies may not
have standing to initiate a shareholder derivative action in a
federal court of the United States.
In addition, most of our directors and officers are nationals
and residents of countries other than the United States.
Substantially all of our assets and a substantial portion of the
assets of these persons are located outside the United States.
The Cayman Islands courts are also unlikely:
•
to recognize or enforce against us judgments of courts of the
United States based on certain civil liability provisions of
U.S. securities laws; and
to impose liabilities against us, in original actions brought in
the Cayman Islands, based on certain civil liability provisions
of U.S. securities laws that are penal in nature.
There is no statutory recognition in the Cayman Islands of
judgments obtained in the United States, although the courts of
the Cayman Islands will generally recognize and enforce a
non-penal judgment of a foreign court of competent jurisdiction
without retrial on the merits.
As a result of all of the above, public shareholders may have
more difficulty in protecting their interests in the face of
actions taken by management, members of the board of directors
or controlling shareholders than they would as shareholders of a
U.S. public company.
You
may have difficulty enforcing judgments obtained against
us.
We are a Cayman Islands company and substantially all of our
assets are located outside the United States. Substantially all
of our current operations are conducted in China. In addition,
most of our directors and officers are nationals and residents
of countries other than the United States. A substantial portion
of the assets of these persons are located outside the United
States. As a result, it may be difficult for you to effect
service of process within the United States upon these persons.
It may also be difficult for you to enforce in U.S. courts
judgments obtained in U.S. courts based on the civil
liability provisions of the U.S. federal securities laws
against us and our officers and directors, most of whom are not
residents in the United States and the substantial majority of
whose assets are located outside the United States. In addition,
there is uncertainty as to whether the courts of the Cayman
Islands or the PRC would recognize or enforce judgments of
U.S. courts against us or such persons predicated upon the
civil liability provisions of the securities laws of the United
States or any state. It is also uncertain whether such Cayman
Islands or PRC courts would be competent to hear original
actions brought in the Cayman Islands or China against us or
such persons predicated upon the securities laws of the United
States or any state.
Our legal and commercial name is LDK Solar Co., Ltd. We were
incorporated in the Cayman Islands on May 1, 2006 by LDK
New Energy Holding Limited, or LDK New Energy, a British Virgin
Islands company wholly owned by Mr. Xiaofeng Peng, our
founder, chairman and chief executive officer, to acquire all of
the equity interests in Jiangxi LDK Solar from Suzhou Liouxin
Industry Co., Ltd., or Suzhou Liouxin and Liouxin Industrial
Limited. On July 10, 2006, upon approval of the relevant
PRC government authorities, Jiangxi LDK Solar became our wholly
owned subsidiary. On September 5, 2006, we incorporated LDK
Solar International Company Limited in Hong Kong as our wholly
owned subsidiary. On January 15, 2007, we incorporated LDK
Solar USA, Inc. in California as our wholly owned subsidiary. We
established two wholly owned subsidiaries, Jiangxi LDK PV
Silicon Technology Co., Ltd. and Jiangxi LDK Solar Polysilicon
Co., Ltd. on July 12, 2007 and October 11, 2007,
respectively, both incorporated in Jiangxi province, China.
In June 2007, we completed the IPO of our ADSs and listed our
ADSs on the New York Stock Exchange. We are currently 70.91%
beneficially owned by Mr. Peng without taking into account
any securities that any shareholder has the right to acquire
within 60 days after the date hereof through the exercise
of any option, warrant or right. As a result, Mr. Peng
maintains effective control over our business and corporate
matters that require shareholders’ approval.
Under our Memorandum of Association, the purpose of our company
is unrestricted. Our principal executive offices are located at
Hi-Tech Industrial Park, Xinyu city, Jiangxi province 338032,
People’s Republic of China, and our telephone number is (86
790) 686-0171.
Our website is www.ldksolar.com. Information contained on
our website is not a part of this report.
See “Item 5 — Operating and Financial Review
and Prospects — Liquidity and Capital
Resources — Capital Expenditures and Investments”
for information on our capital expenditures.
We are a leading manufacturer of multicrystalline solar wafers.
Solar wafers are the principal raw material used to produce
solar cells, which are devices capable of converting sunlight
into electricity. We sell multicrystalline wafers globally to
manufacturers of photovoltaic products, including solar cells
and solar modules. We produce and sell multicrystalline solar
wafers between 180 and 220 microns in thickness. In addition, we
provide wafer processing services to monocrystalline and
multicrystalline solar cell and module manufacturers.
We manufacture multicrystalline ingots from polysilicon
feedstock in our directional solidification system furnaces, or
DSS furnaces, as an interim step in producing wafers. In
addition to using solar-grade virgin polysilicon, we also use
other polysilicon materials from various sources in our ingot
manufacturing process. We have developed proprietary production
processes for the use of polysilicon scraps and recyclable
polysilicon in manufacturing our ingots while maintaining our
product quality and performance. We use substantially all of our
ingots for production of our own wafers. In addition, we also
sell polysilicon materials, which include ingots and polysilicon
scraps.
As of December 31, 2007, we had an annual multicrystalline
wafer production capacity of approximately 420 megawatts,
or MW. We have entered into contracts to purchase additional
equipment that is expected to be sufficient for our planned
expansion to approximately 800 MW by the end of 2008 and
approximately 1,600 MW by the end of 2009.
Despite the current industry-wide shortage of polysilicon, we
have inventory and commitments from suppliers that we believe
will satisfy over 80% of our estimated requirements through
2008. Some of our polysilicon supply agreements are subject to
fluctuating market prices or price negotiations with our
suppliers. Our polysilicon feedstock consists of polysilicon
scraps, recyclable polysilicon and virgin polysilicon. We have
purchased polysilicon scraps and recyclable polysilicon from
semiconductor materials trading companies, including Komex Inc.,
or Komex, Petro International Corp., or Petro International,
Sunbridge Co., Ltd., or Sunbridge, and Targray Technology
International Inc., or Targray. We have also purchased virgin
polysilicon from virgin polysilicon manufacturers. In addition,
some of our customers, including BP Solar, Canadian Solar Inc.,
or CSI, General Electric International Inc., or GE Energy, and
Q-Cells, have supplied us with polysilicon feedstock. We also
source polysilicon feedstock from the spot market from time to
time depending on the price and our requirements.
In August 2007, we commenced the construction of our polysilicon
production plant located near our current solar wafer
manufacturing facilities in Xinyu city of Jiangxi province. Our
polysilicon production plant consists of two factories under
construction, one with an expected annual installed polysilicon
production capacity of 15,000 metric tons and the other with an
expected annual installed polysilicon production capacity of
1,000 metric tons. Our plan is to complete the construction
of the
1,000-metric-ton
factory by the end of the second quarter of 2008 and the
15,000-metric-ton factory by the end of 2008. Polysilicon
produced at our plant will be used primarily for the manufacture
of our solar wafers. We currently expect to achieve an aggregate
installed annual production capacity of approximately 7,000
metric tons of polysilicon by the end of 2008 and approximately
16,000 metric tons by the end of 2009.
Our principal customers have included Gintech Energy
Corporation, or Gintech, Q-Cells, Solarfun Power Holdings Co.,
Ltd., or Solarfun, Solland Solar Energy B.V., or Solland Solar,
and Suntech Power Holdings Co., Ltd., or Suntech, in terms of
net sales during the year ended December 31, 2007.
Historically, based on the immediate destination of our goods
shipped, the majority of our sales had been in China. However,
our sales to China as a percentage of our total sales decreased
from 75.5% in the year ended December 31, 2006 to 29.4% in
the year ended December 31, 2007. We intend to continue to
enhance and broaden our revenue and customer base to target
other leading global solar cell and module manufacturers.
Our increasing scale of operation and cost reduction program
have generally reduced our unit manufacturing cost since our
inception. We are, however, subject to fluctuations in market
prices of polysilicon feedstock and other raw materials used in
our production. We have a dedicated research and development
team, whose primary objectives are to enhance our product
quality and achieve a more efficient manufacturing process by
improving production yield and lowering production costs.
We were incorporated in the Cayman Islands on May 1, 2006.
Our principal operating subsidiary, Jiangxi LDK Solar, was
incorporated in China on July 5, 2005. Since we made our
first commercial sale of multicrystalline wafers in April 2006,
we have experienced significant growth. Our net sales increased
from $105.5 million for the year ended December 31,2006 to $523.9 million for the year ended December 31,2007 and our net income increased from $30.2 million for
the year ended December 31, 2006 to $144.1 million for
the year ended December 31, 2007.
Competitive
Strengths
We believe that our rapid growth and strong market position are
largely attributable to our following principal competitive
strengths:
Leading
solar wafer manufacturer
We are a leading manufacturer of multicrystalline solar wafers.
We dedicate all our management efforts and financial, technical,
research and human resources to the design, development,
manufacturing and distribution of multicrystalline solar wafer
products. As the global demand for solar power expands, we
believe we will continue to benefit from the growth of
photovoltaic cell and module production. Although we are
constructing our own polysilicon manufacturing facilities in
China, substantially all of our production will be used to
manufacture our solar wafers. Our position as a pure-play wafer
manufacturer minimizes competition and conflicts of interest
with our customers. It enables us to form strong strategic
relationships with them to gain feedback to better our
manufacturing process, improve our technology and obtain
long-term contracts. We have decided not to enter into solar
cell and module or thin film module production.
Cost-effective
production
We believe our production is cost-effective due to the following
factors:
•
Efficient Production Process. We have taken a
series of cost reduction measures and developed processing
technologies to reduce our production costs at each step of the
production process, which include recycling more polysilicon,
producing bigger ingots, increasing wafer size, reducing wafer
thickness, recovering slurry and increasing production yield.
•
China-based Manufacturing Facilities. By
manufacturing all of our products in China, we are able to
benefit from low-cost labor, land, ancillary equipment and
facilities, consumables and utilities. The low-cost labor in
China allows us to utilize, in a cost-effective manner,
recyclable polysilicon feedstock that requires intensive labor
in its sorting, inspection and preparation. We have also made a
33.5% investment in a local crucibles manufacturer, located in
Xinyu city, the same city as our wafer manufacturing facilities.
This investment enables us to secure a large portion of the
crucibles we need for our anticipated wafer production in the
upcoming years at a low cost. Crucibles are used to create
ingots, and are currently one of the most expensive consumables
used in the wafer manufacturing process.
•
Research and Development. Our research and
development efforts are aimed at achieving both near-term
production process efficiency improvements and long-term
technological breakthroughs through our collaboration with
leading universities and our internal resource. Our efforts have
enabled us to diversify and optimize our polysilicon feedstock
mix, to manufacture larger ingots and thinner and larger wafers.
We have established dedicated laboratories in collaboration with
Shanghai Jiaotong University and Nanchang University, two
universities in China. Our cooperation with Shanghai Jiaotong
University is aimed at enhancing the performance of consumables
sourced in China such as crucibles, slurry and sawing wires as
well as to develop innovative equipment and technologies to
improve our manufacturing processes. Our cooperation with
Nanchang University is focused on producing lower-cost
consumables and reducing the cost of utilizing locally procured
consumables in our manufacturing process.
We have established a large-scale wafer manufacturing facility
with an annual production capacity of approximately 420 MW
as of December 31, 2007. Based on our current expansion
plan, we intend to increase our wafer production capacity to
approximately 800 MW by the end of 2008 and approximately
1,600 MW by the end of 2009. We utilize state-of-the-art
equipment throughout our manufacturing process, which includes
DSS furnaces made by GT Solar and wire-saw squarers and wafering
equipment made by HCT Shaping and Meyer Burger. Our current
equipment purchase orders and commitments are sufficient to
support our production expansion to production capacity
objectives for 2008 and 2009. We believe our state-of-the-art
production equipment strengthens our competitive position in
production efficiency and quality.
Strong
relationships with customers and suppliers
We have strong relationships with internationally reputable
customers and suppliers of raw materials. We have established a
number of long-term relationships and sales arrangements with
key players in the photovoltaic industry. Our current customer
base consists of some of the major international players in the
photovoltaic cell and module manufacturing sector, including BP
Solar, CSI,
E-Ton,
Motech, Q-Cells, Solarfun, Solland, Suntech and more. All of our
anticipated wafer output for 2008 and 2009 has been contracted
through fixed price, committed orders. We also have a number of
long term contracts with fixed quantities that extend beyond
2010, with some of them subject to periodic price re-negotiation
or re-setting. Through purchase orders and long-term supply
contracts with virgin polysilicon manufacturers and other
recyclable polysilicon purchase arrangements with our customers,
we have secured over 80% of our estimated polysilicon
requirements for 2008.
Experienced
management team
We have an experienced management team led by our founder,
chairman and chief executive officer, Mr. Xiaofeng Peng,
with proven execution capabilities in planning and implementing
our corporate strategies. Members of our senior management team
have extensive experience in the photovoltaic industry,
manufacturing and corporate management. We believe the insight
and execution capabilities of our management team have been
instrumental in managing our rapid growth and in achieving our
current leading market position. Subsequent to the incorporation
of our principal operating subsidiary, Jiangxi LDK Solar, in
China in July 2005, we made our first commercial sale in April
2006 and became profitable in the first quarter of our
operations. We believe that the technical and industry knowledge
and the business management experience of our senior executives
provide us with significant competitive advantages in the fast
growing solar industry.
Our
Strategies
Our principal objective is to strengthen our position as a
global leader in the manufacturing of multicrystalline solar
wafers through increasing our production capacity and
strengthening our cost competitiveness. We intend to achieve
this objective by pursuing the following strategies:
Expand
our production capacity to meet customer demand and enhance
economies of scale
We plan to expand our production capacity rapidly in order to
gain market share and cement our position as one of the leading
players in the solar wafer industry. Both our upstream
polysilicon suppliers and our downstream solar cell
and/or
module manufacturer customers have been aggressively expanding
their operations due to strong global demand for solar products.
We believe there exists an opportunity for us to quickly grow
our operations to support the development of the solar power
industry chain, including monocrystalline wafer manufacturing.
When our wafer production capacity reaches approximately
800 MW by the end of 2008 and approximately 1,600 MW
by the end of 2009 as currently anticipated, increased economies
of scale will further enhance our competitive position within
the solar value chain.
Continue
to improve our research and development to reduce manufacturing
costs, improve production yield and pursue technological
innovation
We plan to devote substantial research and development resources
and recruit additional experienced research and development
personnel to enhance our technological capabilities. As demand
for photovoltaic products increases and production capacity
expands across the value chain, we believe that the ability to
maintain a competitive cost structure will be crucial to our
success. We plan to continue providing high quality solar wafers
at competitive prices by focusing on research and development in
the following areas:
•
maximize the utilization of polysilicon by making larger ingots
and thinner wafers;
•
improve technologies used in our polysilicon and slurry recovery
program;
•
improve production output by making thinner and larger wafers;
•
reduce the costs associated with consumable items, such as
sawing wires, crucibles and slurry; and
•
utilize more low-cost raw materials by improving our processing
technology.
We will continue to devote substantial resources to research and
development in order to improve our production yield. We will
also focus our research and development efforts on the
application of next generation solar technologies in order to
strengthen our market position and capture future development
opportunities in the solar industry.
We are in the process of developing our in-house polysilicon
manufacturing capabilities so that we may reduce our material
costs and ensure we have adequate supply of polysilicon for our
wafer production. Polysilicon is the highest cost component in
wafer production and by producing polysilicon internally, we
believe we will be able to significantly reduce our cost for raw
materials. We will also be able to increase the flexibility of
our polysilicon supply by producing different grades of silicon
that may cater to varying needs of our customers. In August
2007, we commenced the construction of our polysilicon
production plant located near our solar wafer manufacturing
facilities in Xinyu city of Jiangxi province. Our polysilicon
production plant consists of two factories under construction,
one with an expected annual installed polysilicon production
capacity of 15,000 metric tons and the other with an expected
annual installed polysilicon production capacity of
1,000 metric tons. Our plan is to complete the construction
of the
1,000-metric-ton
factory by the end of the second quarter of 2008 and at the
15,000-metric-ton factory by the end of 2008. Polysilicon
produced at our plant will be used primarily for the manufacture
of our solar wafers. We currently expect to achieve an aggregate
installed annual production capacity of approximately 7,000
metric tons of polysilicon by the end of 2008 and approximately
16,000 metric tons by the end of 2009.
Secure
supplies of polysilicon feedstock from third-party
vendors
According to Photon International, polysilicon is in tight
supply industry-wide, which is a hindrance to the growth of
solar wafer manufacturing. To address the current industry-wide
polysilicon shortage, we seek to enter into additional supply
agreements with leading virgin polysilicon suppliers as well as
recyclable polysilicon suppliers. We will also continue to seek
polysilicon from our customers and, at times, purchase from the
spot market as necessary. We currently have inventory and
commitments from suppliers that we believe will satisfy over 80%
of our estimated requirements through 2008. We also intend to
further broaden our supplier base to diversify our raw material
sources.
Broaden
our geographic presence and strengthen our customer
relationships
We plan to broaden our geographic presence and further
strengthen our relationships with customers both in China and
internationally. We intend to further enhance our customer
feedback system and collaborate closely with our customers to
improve our technology and services. In China, we plan to
increase our sales and service forces to provide wider coverage
of the market and gather customer feedback on a timely basis.
Internationally, we intend to significantly increase our sales
to the global top 20 solar cell and module manufacturers in
order to strengthen our
long-term customer base. We plan to establish sales and support
offices in each of our major international markets, including
Europe, Japan and the United States, to facilitate
communications with our customers in those markets and to
complement our global sales efforts.
Consider
selective alliances and acquisitions
We will consider suitable opportunities to enter into strategic
alliances or acquisitions that provide synergies or otherwise
strengthen our existing business, including upstream players
with various technology capabilities in the production of
polysilicon, consumables and other materials used in solar wafer
manufacturing. For example, in January 2008, we acquired 33.5%
of Jiangxi Sinoma New Material Co., Ltd., a Xinyu-based crucible
manufacturer. In addition, to the extent we believe it is
synergistic to us and favorable to our customers, we may also
consider acquisitions of other solar wafer manufacturers, who we
believe would complement our production capabilities. We believe
that our relationships with many industry participants and our
knowledge of, and experience in, the solar power industry allow
us to understand industry trends, technological developments and
applications of solar power technologies, which will assist us
in making decisions regarding such alliances and acquisitions.
Our
Products
We manufacture and sell multicrystalline solar wafers. We focus
on the production of multicrystalline wafers instead of
monocrystalline wafers primarily because:
•
we can use a wider range of polysilicon feedstock in the
production of multicrystalline wafers; and
•
multicrystalline wafer production process has a lower cost.
We currently produce and sell multicrystalline wafers in three
principal sizes of 125 by 125 mm, 150 by 150 mm and 156 by 156
mm, and with thicknesses from 180 to 220 microns.
We also provide wafer processing services to both
monocrystalline and multicrystalline solar cell and module
manufacturers, who provide us with their own silicon materials,
such as polysilicon feedstock and ingots. We process such
feedstock to produce ingots. We then slice such ingots and
ingots provided by our customers into wafers to be delivered
back to our customers. We charge a fee based on the number of
wafers processed and the type of materials we receive. In
addition, we also sell silicon materials, which include ingots
and polysilicon scraps.
Wafer
Production
Production of multicrystalline wafers can be divided into two
main steps:
•
ingot production, and
•
wafering.
We use manufacturing equipment and related technologies
purchased from well-known solar equipment vendors, including GT
Solar, HCT Shaping and Meyer Burger. We also use other equipment
manufactured domestically or imported from overseas.
Production
of Polysilicon Ingot
We prepare our polysilicon feedstock with de-ionized water in
etching stations. The prepared polysilicon feedstock is then
placed in crucibles and each crucible is loaded into our DSS
furnaces for melting and crystallization. Polysilicon ingots
formed during the crystallization process are then cut into
smaller blocks with a squarer, a process known as squaring. Our
polysilicon ingots are currently 270 kilograms in weight and 690
by 690 mm in width and 216 or 243 mm in height. We are
engaged in research and development efforts in collaboration
with GT Solar to increase the number of wafers that can be
produced per standard ingot of 270 kilograms by 15%.
After passing inspection, the polysilicon blocks are cropped and
prepared for slicing. The prepared polysilicon blocks are sliced
into wafers by wire saws. We then wash and dry the wafers at our
wafer cleaning stations before our final inspection and
packaging for delivery.
In addition, we also sell polysilicon materials, which include
ingots and polysilicon scraps.
Illustrated below is a diagram of our ingot production and
wafering process:
Materials
used in our wafer production
Polysilicon Feedstock. The main raw material
for multicrystalline wafer and ingot production is polysilicon
feedstock. We use a variety of polysilicon materials, including
solar-grade virgin polysilicon that is at least 99.9999% pure,
recyclable polysilicon scraps from third parties and silicon
powder.
Crucibles. A crucible is a ceramic container
used to hold polysilicon feedstock for melting in the furnace
and has to withstand extremely high temperatures. Crucibles are
currently not reusable, as once the ingot is formed, the
crucible holding the ingot will be broken and removed from the
ingot.
Slurry and Wire. Slurry is used in the wire
sawing process. It is a fluid composed of silicon carbide, or
SiC, which functions as an abrasive, and polyethylene glycol, or
PEG, which acts as a coolant. Wires are used in wire saws to
carry the slurry in order to create an abrasive cutting tool.
Wafer
production facilities
We manufacture multicrystalline wafers and ingots at our
facilities in Xinyu city, Jiangxi province, China. Our wafer
manufacturing facilities occupy a site area of approximately
1,346,400 square meters in the Xinyu Hi-Tech Industrial
Park of the high-tech development zone of Xinyu city.
We currently have two plants to house our wafer manufacturing
operations in the Xinyu Hi-Tech Industrial Park. As of
December 31, 2007, we had the following equipment in
operation:
•
134 DSS furnaces used for ingot production;
•
25 squarers used to cut ingots into blocks;
•
96 wire saws used to slice blocks into wafers; and
•
other supplemental or ancillary facilities.
Our annual production capacity as of December 31, 2007 was
approximately 420 MW.
Wafer
production capacity expansion
We completed the construction of our third multicrystalline
wafer plant in the third quarter of 2007. As a result, our total
annual production capacity was increased to approximately
420 MW by the end of 2007.
As of December 31, 2007, we had commitments from our
equipment suppliers for the delivery or installation of an
additional 285 DSS furnaces, 52 squarers and 144 wire saws,
which can support an annual manufacturing capacity to
approximately 800 MW by the end of 2008. We have also
entered into contracts to purchase additional equipment that is
expected to be sufficient for our planned expansion of our
annual manufacturing capacity to
approximately 1,600 MW by the end of 2009. We plan to
procure supplemental facilities, such as a ventilation system,
air purification system, water station and waste water treatment
station, as needed in our expansion plan.
Wafering
technologies
We have been improving our technologies and expertise to clean
and optimize the mix of polysilicon feedstock of different
grades and to ensure and improve our polysilicon yield. We use
wire saws rather than band saws in our squaring. This enables us
to reduce silicon material loss in the squaring processes, or
kerf loss. We have purchased automatic wafer cleaning and
sorting equipment to improve sorting efficiency and reduce
breakage.
We recover some of our slurry through third-party service
providers. We have also purchased slurry recovery systems from
HCT Shaping and GT Solar to recover the slurry internally. In
January 2007, we installed our first line of the slurry recovery
systems. We intend to install additional slurry recovery systems
as we expand our production capacity. The slurry recovery ratio
of these systems is over 75%. Through additional research and
development, we will endeavor to recycle and re-use as many of
our production consumables as possible. This is not only a cost
reduction measure, but also an important part of our
environmentally friendly program.
Polysilicon
Production
In August 2007, we commenced the construction of our polysilicon
production plant located near our solar wafer manufacturing
facilities in Xinyu city of Jiangxi province to produce
solar-grade virgin silicon feedstock for use in our production
of multicrystalline solar wafers. Our polysilicon production
plant consists of two factories under construction, one with an
expected annual installed polysilicon production capacity of
15,000 metric tons and the other with an expected annual
installed polysilicon production capacity of 1,000 metric tons.
Our plan is to complete the construction of the 1,000-metric-ton
factory by the end of the second quarter of 2008 and the
15,000-metric-ton factory by the end of 2008. We currently
expect to achieve an aggregate installed annual production
capacity of approximately 7,000 metric tons of polysilicon by
the end of 2008 and approximately 16,000 metric tons by the end
of 2009.
We have engaged Fluor Corporation, or Fluor, to provide general
engineering, procurement, construction and management services
for our polysilicon manufacturing plant at our Xinyu site. We
have also hired CDI Engineering Solutions, a division of
engineering outsourcing service provider, CDI Corp., to provide
basic engineering services (front-end engineering design) for
our TCS plant for our 15,000-metric-ton factory. In addition, we
intend to purchase and install a separate TCS plant for our
1,000-metric-ton factory. As of the date of this report, we have
received the completed basic engineering phase, or BEP, package
for our TCS plant on-time and on-budget from CDI Engineering
Solutions. The BEP defines the parameters of the plant design
and is used to prepare detailed construction drawings.
Polysilicon
production process
We intend to use modified Siemens process for our polysilicon
production. Our polysilicon production process will start with
mixing hydrogen chloride, or HCI, with a bed of silicon powder
in a reactor which produces TCS. TCS will then be purified
through distillation and the byproduct silicon tetrachloride, or
STC, will be converted back into TCS for re-use as a production
input, and hence recycled in what is known as a closed loop
process. Next, high-purity silicon rods will be exposed to
purified TCS gas in a hydrogen environment at 1,080°C,
allowing TCS gas to decompose and deposit additional silicon
onto the rods. When the rods eventually grow to desired
diameters, they will be removed from the reactor and moved to a
clean area for further processing. Finally, the rods will be
broken into chunks, impurities will be segregated and the ultra
pure polysilicon chunks will then be used for our wafer
production.
The following chart sets forth our planned polysilicon
production process.
Polysilicon
production technologies
We will use metallurgical silicon as a raw material to produce
TCS, which will then be used to produce polysilicon. Our
technology will enable a high degree of hydrogen, HCI, TCS and
STC to be recycled and reused during the production process,
thereby reducing waste output and lowering raw material cost.
This continuous closed-loop process increases production
capacity per reactor, while reducing overall energy consumption
and capital investment for a given level of production. Our
advanced distributed control system, or DCS, will improve
production capacity and safety while reducing human-resource
related operating expense. Our production process, including
production, cleaning, packaging and transportation, will conform
to relevant international standards and our comprehensive waste
management system is compliant with national environmental
protection standards.
Polysilicon
production facilities
We intend to manufacture solar-grade pure polysilicon at our
facilities in Xinyu city, Jiangxi province, China. Our
polysilicon manufacturing facilities occupy a site area of
approximately 8.7 million square meters in the Xinyu
Hi-Tech
Industrial Park of Xinyu city. As of December 31, 2007, we
had the following equipment delivered to our site pending
installation:
•
two Siemens technology-based reactors from Sunways AG, or
Sunways; and
•
other ancillary polysilicon production equipment.
The 15,000 metric-ton factory has been designed to operate a
closed-loop system and we anticipate implementing a closed-loop
process as the factory becomes operational. We intend to
construct HCl and TCS production facilities near the
15,000-metric-ton factory to produce production inputs for both
of our polysilicon factories. We also plan to implement a
closed-loop process at the 1,000-metric-ton factory in 2009.
We entered into an engineering, facility consulting service and
equipment supply agreement in September 2007 with Sunways to
procure all technical devices and equipment, including two
Siemens technology-based reactors, and related ancillary
components for our 1,000-metric-ton polysilicon production
facility. We have also contracted with Sunways under the
agreement to procure quality management, testing and initial
operation, technical support and other consulting services for
the polysilicon production facility.
We adhere to a strict system of quality control over our
operations, from the sourcing of raw materials to production and
delivery. We have established quality-control at each stage of
our production process to closely monitor the quality of our
production and to ensure that our solar wafers and ingots meet
all our internal benchmarks and customers’ specifications.
In addition, we have established a quality documentation system
for all purchasing, production and sales units and implemented
procedures for constant improvement and flaw prevention. Our
senior management team is actively involved in setting quality
control policies and monitoring our quality control performance.
However, it is impossible to avoid product defects. As we have
disclosed in the “Item 3 — Risk Factors
— Risks Relating to Our Company and Our
Industry — Product defects could result in increased
costs, damage to our reputation and loss of revenues and market
share” in this report, we encounter periodic sales returns
in our ordinary course of business due to improper cleaning,
non-conformity with customers’ specifications or product
defects.
As of December 31, 2007, we had a core quality management
unit consisting of 343 persons overseeing our quality
control processes, audits and engineering. In addition, this
unit runs the testing procedures at the quality-control
checkpoints during the production process of multicrystalline
wafers and ingots. We purchase raw materials from trusted
suppliers on our approved vendor list whenever possible and only
those suppliers that pass our assessment are admitted to our
approved vendor list. Raw materials are inspected by our quality
management unit. Raw materials which fail to pass our incoming
inspection are returned to the suppliers. At each stage of the
production process, we conduct tests to ensure quality and
compliance with all our internal production benchmarks. We
conduct infra-red scans for impurities, as well as resistivity
and life-time tests, on our ingots and multicrystalline blocks
before proceeding to the next production step. We then conduct a
final quality check after all wafers are cleaned and prior to
packaging. Following completion of the production process, our
products are inspected and tested thoroughly in the form of an
output quality check to ensure that all customers’
specifications are met before our products are delivered to
customers.
We are currently implementing an ISO9001 Quality Assurance
system at our production facilities. Our quality assurance and
quality control procedures, together with our corporate
standards established for the quality checks exercised by our
quality management unit, are compliant with ISO9001 requirements
as well as our own internal quality guidelines. We obtained the
ISO9001 Quality Assurance Certification in February 2007.
Customers,
Sales and Marketing
Our customers currently comprise some of the industry leaders in
the photovoltaic cell and module sector, both within and outside
China. They include
Chuan-Yi
Investment Corporation, Hyundai, Moser Baer Photo Voltaic Ltd.,
or MBPV, Neo Solar, Petro International, Q-Cells, Solland Solar
and Sunways. Historically, the majority of our sales have been
in China. However, we have been enhancing and broadening our
revenue and customer base to target other leading photovoltaic
cell and module producers around the world. For the years ended
December 31, 2006 and 2007, we derived approximately 75.5%
and 29.4%, respectively, of our net sales from sales to
manufacturers of photovoltaic products in China and
approximately 24.5% and 70.6%, respectively, from exports.
During the years ended December 31, 2006 and 2007, our top
five customers collectively accounted for approximately 70.2%
and 42.7%, respectively, of our net sales. Suntech and Solarfun
contributed 39.7% and 13.9%, respectively, of such net sales for
the year ended December 31, 2006. During the year ended
December 31, 2007, Solarfun and Q-Cells contributed 12.3%
and 10.0%, respectively, of our net sales. No other single
customer contributed more than 10% of our net sales in 2007 or
2006.
We have written agreements with our principal customers:
•
In March 2006, we entered into a five-year solar wafer
supply agreement with Solland Solar, commencing on
January 1, 2006 through December 31, 2010 and
automatically renewable at one-year increments. Both parties
have agreed to determine the wafer supply quantities and prices
for 2007 and each subsequent year through negotiation.
•
In August 2007, we entered into an three-year contract to supply
multicrystalline solar wafers to Taiwan-based Chuan-Yi
Investment Corporation, or
Chuan-Yi.
Under the terms of the contract, we will deliver
approximately 246 MW of multicrystalline solar wafers to
Chuan-Yi valued at approximately $516 million over a
three-year period.
•
In August 2007, we entered into a contract to supply
multicrystalline solar wafers to Neo Solar. Under terms of the
agreement, we will deliver approximately 237 MW of
multicrystalline solar wafers to Neo Solar valued at
approximately $495 million through the end of 2009.
•
In September 2007, we entered into a wafer supply contract to
supply multicrystalline solar wafers to Sunways. Under the terms
of the contract, we will deliver approximately 1.0 gigawatt of
multicrystalline solar wafers to Sunways at fixed prices over a
ten-year period starting in 2008.
•
In December 2007, we entered into a
10-year
contract to supply multicrystalline wafers to
Q-Cells,
pursuant to which we will deliver more than 6.0 gigawatts of
multicrystalline solar wafers to
Q-Cells over
a ten-year period commencing in 2009 through 2018. We will use
approximately one-third of the polysilicon produced by our
15,000-metric-ton polysilicon production facility that is
currently under construction to manufacture the wafers to be
delivered under this contract.
Q-Cells has
agreed to make certain prepayments to assists us in financing
the expansion required to supply these volumes. Additionally,
Q-Cells has
the option to purchase further silicon wafers if we expand
polysilicon our production capacity.
•
In January 2008, we entered into a ten-year contract to supply
multicrystalline solar wafers to Neo Solar. Under the contract,
we will receive a cash deposit from Neo Solar and the pricing
will be fixed for the entire contract period. We will deliver
approximately 509 MW of multicrystalline solar wafers to
Neo Solar commencing in 2009.
•
In February 2008, we entered into an eight-year contract to
supply multicrystalline solar wafers to Hyundai based in the
Republic of Korea. Under the terms of the agreement, we will
deliver 450 MW of multicrystalline solar wafers to Hyundai
over an eight-year period commencing in late 2008 through 2015.
The pricing is fixed from 2008 through 2010 and the pricing for
the remaining term of the contract will be subject to agreement.
Hyundai will make an advanced payment representing a portion of
the contract value to us.
•
In March 2008, we entered into an agreement to supply
multicrystalline solar waters to Petro International. Under the
terms of the agreement, we will deliver approximately 120 MW of
multicrystalline solar waters to Petro International over a
three-year
period commencing in March 2008 through March 2011.
The pricing is fixed from 2008 through 2009 and the pricing for
the remaining term of the agreement will be subject to
negotiations.
•
In April 2008, we entered into a ten-year contract to supply
multicrystalline solar wafers to MBPV. Under the terms of the
contract, we will deliver approximately 640 MW of
multicrystalline solar wafers to MBPV over a period commencing
in the second half of 2008 through the end of 2017. The pricing
is fixed from 2008 through 2010 and the pricing for the
remaining term of the contract will be subject to negotiations.
MBPV will make an advance payment representing a portion of the
contract value to us.
Our net sales generated from the various geographic regions
during the year ended December 31, 2007 as a percentage of
our net sales has experienced some significant changes as
compared to the year ended December 31, 2006. Based on the
immediate destination of our goods shipped, the majority of our
sales had been in China. However, our sales to China as a
percentage of our total sales decreased from 75.5% in the year
ended December 31, 2006 to 29.4% in the year ended
December 31, 2007. Our net sales to Asia Pacific ex-China
during the year ended December 31, 2007 increased to 41.3%
as compared to 16.3% during the year ended December 31,2006. Our net sales to Europe during the year ended
December 31, 2007 increased to 20.1% as compared to 3.2%
during the year ended December 31, 2006. Our net sales to
North America during the year ended December 31, 2007
increased to 9.2% as compared to 5.0% during the year ended
December 31, 2006.
We have written agreements with most of our customers although
our sales to some of our customers have been based on periodic
purchase orders. Our sales to Chinalight and Solartech Energy
have been based on short-term sales contracts and monthly and
quarterly purchase orders. We typically require our customers to
prepay a portion of the contracted purchase price before we
deliver our products.
Suppliers
Raw
materials and consumables
The materials used to produce our solar wafers include virgin
polysilicon, recyclable polysilicon acquired from semiconductor
manufacturers and equipment vendors and related consumables. The
majority of our polysilicon feedstock consists of polysilicon
scraps and recyclable polysilicon.
We source our polysilicon feedstock from both domestic and
international sources, including:
•
semiconductor materials trading companies, such as Komex, Petro
International, Sunbridge and Targray;
•
solar cell and module makers, such as BP Solar, CSI, GE Energy
and Q-Cells; and
•
solar-grade virgin polysilicon manufacturers, such as Wacker.
For the years ended December 31, 2006 and 2007, polysilicon
feedstock comprised approximately 75.0% and 80.7% of our costs
of goods sold, respectively.
We have inventory and commitments from suppliers that we believe
will satisfy over 80% of our estimated polysilicon requirements
for 2008. We source a portion of polysilicon feedstock from the
spot market from time to time depending on the price and our
requirements.
Since our inception, we have relied on a combination of one-time
purchase orders and long-term purchase contracts with our
suppliers in order to fulfill our polysilicon requirements. In
addition, we have diversified our polysilicon sourcing through
purchase and sale arrangements with our solar cell and module
customers that possess solar-grade polysilicon feedstock.
Through these arrangements, these customers sell us a certain
amount of polysilicon feedstock and we sell them certain
quantities of solar wafers. We also intend to source a portion
of our polysilicon requirements internally in the future as
described under “Polysilicon Production Process.”
We have written agreements with our principal suppliers:
•
Our framework silicon purchase contract with Komex entered into
in December 2006 has a term of eight years from January 2007 to
January 2015. Pursuant to the contract, Komex is required to
supply at least 35 tons of solar-grade polysilicon
feedstock to us at market prices for each month during the term
of the contract. The Komex contract provides for a monthly
delivery schedule and we are required to pay 100% of the
purchase price in advance for each shipment.
•
Our cooperation agreement with Kunical entered into in December
2006 has a term of four years from 2007 to 2010. Pursuant to
this contract, Kunical is required to use its best efforts to
supply to us 200 tons of polysilicon feedstock each year during
the term of the contract for a total price of $96 million.
Kunical is required to deliver polysilicon feedstock within
seven business days upon receipt of our purchase order and we
are required to pay 100% of the purchase price for each shipment
five days after receipt of its invoice.
•
Our agreement with Luoyang Zhonggui High-Tech Co., Ltd, or
Luoyang Zhonggui, entered into in April 2007 has a term of five
years. Pursuant to this agreement, Luoyang Zhonggui will supply
200 tons of polysilicon feedstock in 2008, 400 tons in 2009, 800
tons in 2010, 1,000 tons in 2011 and 1,500 tons in 2012. The
purchase price will be based on prevailing PRC domestic market
prices. We are required, however, to make prepayments to Luoyang
Zhonggui in the aggregate of Rmb 400.0 million, payable as
follows: Rmb 50.0 million by October 30, 2007, Rmb
150.0 million by November 30, 2007, Rmb
180.0 million by April 30, 2008 and Rmb
20.0 million by December 31, 2008. As a result of the
delay in delivery progress, as of the date of this report, we
have made an aggregate of Rmb 77 million in
prepayments.
•
In March 2008, we entered into a polysilicon feedstock supply
agreement with Petro International. Pursuant to this agreement,
Petro International will provide us with an aggregate of
1,449 metric tons of polysilicon
feedstock, to be delivered from March 2008 through February
2011. We have agreed to pay a deposit of 2% of the aggregate
contract price. Delivery of the feedstock will be on a monthly
basis and we are required to pay 100% of the purchase price in
advance of each shipment.
We have also sourced significant amounts of polysilicon
feedstock from suppliers, such as Targray and Sunbridge, in the
spot markets without any prior written agreements.
We have also entered into polysilicon raw material supply
arrangements with other suppliers, such as BP Solar, CSI,
GE Energy, Q-Cells, and Wacker. Due to the current
worldwide shortage in polysilicon supply, we generally have to
make prepayments to our virgin polysilicon suppliers in order to
secure stable supply of our virgin polysilicon feedstock. We
make these prepayments without receiving any collateral. As of
December 31, 2007, our prepayments to suppliers amounted to
$157.2 million. If our suppliers fail to deliver the
polysilicon we have ordered and do not return our prepayments,
our results of operations may be adversely affected. In
addition, we may not be able to find alternative sources of
polysilicon, which could adversely affect our business and
results of operations.
We use consumables in our production including slurry, sawing
wires, crucibles and other materials. We source most of our
consumables from suppliers in China. In January 2008, we
acquired 33.5% of Jiangxi Sinoma, a Xinyu-based crucible
manufacturer, in an effort to ensure supply of our needs for
crucibles. In addition, we have entered into a Strategic
Cooperation Agreement with Jiangxi Sinoma, a Xinyu-based
crucible manufacturer, in which we own a minority equity
interest. This agreement provides that not less than 80% of
Jiangxi Sinoma’s production capacity will be used to
satisfy our requirements and that, subject to the scope and
timing of production expansion at Jiangxi Sinoma, we will
purchase not less than 80% of our annual requirements of
crucibles from Jiangxi Sinoma. This agreement has a term of five
years starting from November 2007.
Equipment
We source our key manufacturing equipment from leading
international manufacturers. GT Solar provides all of our
current DSS furnaces and some of our polysilicon reactors. All
of our DSS furnaces are equipped with safety kits that limit
potential damage in the event of an accident. HCT Shaping and
Meyer Burger provide all of our squarers and wire saws. We also
purchase ancillary equipment from other manufacturers.
In connection with our wafer production expansion plan and the
construction of our polysilicon production facilities, we had
equipment supply contracts outstanding as of December 31,2007 for:
•
242 additional DSS furnaces from GT Solar;
•
99 additional wafering wire saws from HCT Shaping;
•
38 additional squarers from HCT Shaping;
•
50 additional polysilicon reactors and 24 converters from
GT Solar; and
•
other ancillary equipment.
We expect the additional equipment will be sufficient to
accommodate our increase in wafer production capacity to
approximately 800 MW by the end of 2008 and to
approximately 1,600 MW by the end of 2009 and our aggregate
annual polysilicon production capacity to approximately 7,000
metric tons by the end of 2008 and approximately 16,000 metric
tons by the end of 2009.
We have entered into a number of equipment and technologies
purchase contracts with GT Solar since June 2005 for an
aggregate of 415 DSS furnaces. We are required under these
contracts to pay a deposit equal to 20% of the purchase price,
to pay an additional 70% by a letter of credit issued prior to
each shipment and payable upon presentation of shipping
documents, and to pay the remaining 10% of the purchase price
within 30 days after our acceptance of equipment but not
later than 90 days of each shipment. GT Solar is required
under these contracts to provide equipment installation,
support, training, assistance and other services to our
employees.
We have entered into a number of equipment purchase contracts
with HCT Shaping to purchase an aggregate of 173 wafering wire
saws and 54 squarers. We are required under some of these
contracts to make a 15% advance
payment approximately 100 days prior to each shipment, to
pay an additional 75% of the purchase price prior to each
shipment and to pay the remaining 10% within 10 days after
the installation and acceptance of the equipment. We are
required under the other contracts to make a 10% payment after
the signing of the relevant contracts, to pay a 15% advance
payment approximately 120 days prior to each shipment, to
pay an additional 65% payment 30 days prior to each
shipment and to pay the remaining 10% within 30 days after
our acceptance of the equipment.
We have entered into an equipment purchase contract with Meyer
Burger in January 2006, as supplemented, for 40 wire saws. We
are required under this contract to make a 25% advance payment
nine months before each shipment, to pay an additional 65% by a
letter of credit issued 60 days prior to the shipment and
to pay the remaining 10% within 30 days after the
acceptance of the equipment.
We have engaged Fluor to provide project management,
engineering, procurement and construction management services
for our polysilicon manufacturing plant. Under our contracts
with Flour, we are required to pay Fluor as compensation for
their service a fee based on hourly rates of Fluor’s
consultants, plus the reimbursement of all of the project costs.
In addition, we are required to pay Fluor a fixed fee of 2% of
the total installed cost of the project and an incentive fee of
2% of the total installed cost of the project. The fees are
payable through monthly billings.
We entered into an equipment purchase contract in September 2007
with Sunways for two Siemens technology-based reactors. Pursuant
to the contract, we are required to make a 50% advance payment
after the signing of the contract and the remaining 50% will be
payable by November 30, 2008.
We entered into an equipment supply agreement in July 2007 with
GT Solar to purchase an aggregate of 50 TCS decomposition
reactors and 24 converters for the production of
solar-grade polysilicon, together with related ancillary
supplies and equipment. We are required under the agreement to
pay deposits in installment equal to 35% of the aggregate
purchase price, to pay an additional 55% of the purchase price
with respect to each reactor upon its delivery and to pay the
remaining 10% of the purchase price per reactor upon its initial
production of polysilicon. We have separately contracted with
GT Solar for its services in equipment installation, safe
operation, training of operating and engineering staff, and
assistance in optimizing the polysilicon production.
Research
and Development
We have a dedicated research and development team at our
manufacturing facility in Xinyu Hi-Tech Industrial Park. Its
primary objectives are to enhance our product quality and to
achieve a more efficient production process by improving yield
and lowering production costs. Our current initiatives include:
•
optimizing our solidification process to achieve the highest
conversion efficiency;
•
improving our solidification purification process to allow us to
use low-cost polysilicon materials without losing wafer
efficiency and quality;
•
reducing polysilicon kerf losses and improving polysilicon
recoveries;
•
improving our crucible and coating technology to achieve
re-usability of our crucibles;
•
optimizing our ingot and wafer sizes, including making larger
ingots and larger and thinner wafers;
•
localizing the production of additional consumables in
China; and
•
localizing the production of some of our auxiliary equipment in
China.
In addition, we established the LDK Laboratory with Shanghai
Jiaotong University in October 2005. This laboratory currently
focuses on developing quality consumables and supplemental
equipment to be produced in China. Under our arrangement with
Shanghai Jiaotong University, we and the university will jointly
own all research results of the laboratory and we will have the
priority right to utilize these research results. We and the
university are entitled to 40% and 30% of all economic benefits
derived from these research results, respectively, and the
remaining 30% of the economic benefits will be reinvested in the
laboratory. We plan to continue to expand our research and
development efforts by establishing additional research
ventures, both in China and overseas, to improve our production
technologies and processes.
In 2007, we established the LDK Solar Research Center with
Nanchang University. This laboratory currently focuses on
producing lower-cost consumables and reducing the cost of
utilizing locally procured consumables in our manufacturing
process. Under our arrangement with Nanchang University, we and
the university will jointly own all research results of the
laboratory. Any commercial utilization of the research results
is subject to further negotiation between us and Nanchang
University.
Competition
The wafer manufacturing industry is competitive. We believe that
the supply of polysilicon feedstock will significantly increase
in the next few years, thus easing supply constraints to solar
wafer manufacturers. Although we expect demand for solar wafers
to grow in response to higher demand for photovoltaic cells and
modules, the international solar wafer market will become more
competitive and we may face price reductions, reduced margins or
loss of market share. Like us, other solar wafer manufacturers
are also engaged in aggressive expansion programs. We compete
with international players such as BP Solar, Deutsche Solar,
Ersol, Evergreen Solar, Green Energy, JFE, Kyocera, M.SETEK, PV
Crystalox, RENA GmbH Solar, REC, Sino-American Silicon and Trina
Solar Limited. We also compete with players in China such as
Glory Silicon, Jinggong P-D, Renesola, Shunda, SUMCO and Tianwei
Yingli. Recently, many solar cell producers and polysilicon
suppliers are also increasingly expanding into wafer production.
These competitors include MEMC, Motech, NorSun, Q-Cells and
Wacker Schott Solar. Many of our current and potential
competitors have a longer operating history, wider name
recognition, greater resources, larger customer base, better
access to polysilicon feedstock and greater economies of scale
than us. In addition, most of these competitors are integrated
players in our solar industry that also engage in the production
of virgin polysilicon, photovoltaic cells
and/or
modules. Their business models may give them competitive
advantages as these integrated competitors place less reliance
on the upstream suppliers
and/or
downstream customers in the value chain. We currently have no
plans to expand into the production of photovoltaic cell or
modules, and we have entered into non-competition agreements
with some of our customers, pursuant to which we have agreed not
to engage in the production of solar cell or modules based on
current wafer technology for approximately 10 years.
We believe that the key competitive factors in our solar wafer
market include:
•
cost competitiveness and price;
•
continuous access to polysilicon feedstock;
•
product quality;
•
economies of scale;
•
advanced technology and manufacturing processes; and
•
strong global distribution channels.
Some companies have spent significant resources in the research
and development of proprietary solar technologies that may
eventually produce photovoltaic products at costs similar to, or
lower than, those of multicrystalline wafers without
compromising product quality. For example, they are developing
or currently producing photovoltaic products based on thin film
photovoltaic materials, which require significantly less
polysilicon to produce than multicrystalline solar products.
These alternative photovoltaic products may cost less than those
based on multicrystalline technologies while achieving the same
level of conversion efficiency. Our founder, chairman, chief
executive officer and controlling shareholder, Mr. Peng, in
his personal capacity, and his family members are considering
and may invest or participate in several alternative energy
projects, including projects involving thin-film solar
technology, solar thermal, wind energy and biofuels. See
“Item 6 — Directors and Senior
Management.” We have decided not to enter into solar cell
and module or thin film module production. The solar industry in
general also competes with other sources of renewable energy and
conventional power generation.
Property
We both own and lease properties for our operations. When we
state that we own certain properties in China, we own the
relevant land use rights because land is owned by the PRC state
under the PRC land system.
We own the land use rights to the underlying parcel of land for
our manufacturing facilities, including both our water and
polysilicon manufacturing facilities, located at the
Hi-Tech
Industrial Park, Xinyu city, Jiangxi province of China. As of
December 31, 2007, the total site area that we owned was
approximately 1,346,400 square meters for an original term
of 50 years expiring on up to September 2057 and renewable
upon its expiration. The gross floor area of our plants in Xinyu
Hi-Tech Industrial Park was approximately 139,450 square
meters as of December 31, 2007. We occupy our owned
properties for purposes of manufacturing, research and
development and as a headquarter office and employee living
quarters.
Leased
property
We currently lease 208 square meters of office space in
Shanghai from an independent third party. This lease will expire
in December 2009.
We also lease a 2,860-square-foot office space in Sunnyville,
California, from an independent third party. This lease will
expire in March 2009.
Intellectual
Property Rights
We have developed various production process related know-how
and technologies in-house. In addition, we have embarked on a
number of research and development programs, including our
collaboration with Shanghai Jiaotong University, with a view to
developing techniques and processes that will improve conversion
efficiency and product quality. We currently do not have any
patents or patent applications pending in China or elsewhere. We
rely on nondisclosure agreements, trade secrets and technical
know-how to protect our intellectual property and proprietary
rights. We have entered into confidentiality, assignment of
inventions and non-competition agreements with our executive
employees, engineers and technicians. We have also entered into
confidentiality arrangements with other employees, suppliers and
distributors. Pursuant to the confidentiality, assignment of
inventions and non-competition agreements, our senior employees,
engineers and technicians have agreed and acknowledged that we
own the rights to all technology, inventions, trade secrets,
developments and other processes generated in connection with
their employment with us or their use of our resources or
relating to our business and that they must assign any ownership
rights that they may claim in those works to us. We have not
taken any action outside China to protect our intellectual
property.
As of the date of this report, we own “LDK” as a
registered trademark for solar wafers and ingots
Insurance
We maintain property insurance coverage on our facilities,
production equipment and inventory in stock, which amounted to
approximately $248.1 million as of December 31, 2007.
We do not have insurance coverage on other assets of ours, such
as products in transit, interruption of business or product
liabilities. We consider our insurance coverage to be adequate
to cover all normal risks associated with our operations in
accordance with industry standards and practices in China. We
have purchased director and officer liability insurance for our
directors and officers.
Production
Safety and Environment
We maintain strong environmentally responsible standards across
our company. We are committed to building and operating safe and
environmentally friendly polysilicon plants. We are in
compliance with all applicable production safety and
environmental protection laws and regulations in China. We
emphasize production safety and endeavor to operate our
manufacturing facilities in an environmentally responsible
manner.
Safety
Our plants, working stations and various facilities have been
designed to maintain a safe working environment. All of our DSS
furnaces are equipped with safety kits that limit potential
damage in the event of an accident. We have established a
designated safety monitoring office that directly reports to our
senior management. We have
adopted a set of production safety procedures that we require
our employees to follow and we provide related trainings to our
employees. Our team leaders are regularly required to confirm
production safety and our managers are accountable for any
failure to observe our safety procedures. To enforce our safety
procedures, we have formulated an award and penalty system,
awarding those who consistently follow safety procedures and
penalizing those who fail to do so.
We require our employees who operate special equipment to have
the relevant necessary training before they are allowed to
operate such equipment. We conduct regular and required
maintenance on our equipment to ensure proper and safe working
conditions.
Environment
We have undertaken various measures to reduce pollution and the
impact of our manufacturing process on the environment. These
measures include monitoring and controlling solid waste, waste
water, exhaust fumes and noise. We currently have an
on-site
sewage treatment station with a 30-metric-ton daily sewage
treatment capacity. We believe that we are currently in
compliance with all environmental laws and regulations
applicable to our operations in China.
In our state-of-the-art polysilicon manufacturing plant,
currently under construction, we will be implementing the latest
technology for recycling. The 15,000-metric-ton factory will
utilize a vent recovery system that will recycle and convert STC
back to TCS for consumption in the polysilicon production
process. This system will start to operate at the same time as
the 15,000-metric-ton factory becomes operational. Once
completed, this facility will have a fully closed loop system
where the majority of the potential waste of STC by-product will
be recycled.
Legal and
Administrative Proceedings
In October 2007, our former finance controller, Charley Situ,
alleged that we incorrectly reported our inventories of silicon
feedstock. As a result of Mr Situ’s allegations,
several securities class action lawsuits were filed against us
and several of our current officers and directors during October
2007 in the U.S. District Court in the Northern District of
California and the Southern District of New York. Those actions
have been consolidated into a single action, pending in the
Northern District of California, entitled In re LDK Solar
Sec. Litig., Case No. C
07-05182
WHA. The complaints allege that we overstated our inventory
and misstated the quality of our internal controls relating to
determining the quantity of our inventory.
In addition, we and several of our officers and directors are
defendants in another lawsuit, pending in California Superior
Court, Santa Clara County, entitled Sean
Coonerty v. Xiaofeng Peng, et al., Case
No. 108CV103758. This derivative lawsuit alleges claims of
breach of fiduciary duty and unjust enrichment based on the same
allegations contained in the securities lawsuit, repeating
Mr. Situ’s allegations that the feedstock inventory
was overstated.
In response to Mr. Situ’s allegations, in October
2007, we formed an internal committee to investigate the
allegations and conduct an immediate physical inventory count of
our polysilicon materials. We found no material discrepancies as
compared to our financial statements. Additionally, our audit
committee conducted an independent investigation into the
allegations made by Mr. Situ. The independent investigation
was primarily conducted by a major U.S. law firm as our audit
committee’s independent counsel, and forensic accountants
from a “big four” independent accounting and
consulting firm that was separate from our external auditors, as
well as independent experts in the evaluation of silicon
feedstock and the production of multicrystalline solar wafers.
The independent investigation found no material errors in our
stated silicon inventory quantities as of August 31, 2007,
and concluded that Mr. Situ’s allegations of an
inventory discrepancy were incorrect because he had not taken
into account all locations at which we stored our silicon
feedstock. The independent investigation further concluded that
we were using each of our various types of silicon feedstock in
the production of our multicrystalline solar wafers, and that a
provision for obsolete, unusable or excess silicon feedstock was
not required. In reaching its conclusions, the audit committee
relied on various forensic procedures performed by its
independent accountants, including tests of our feedstock by
independent experts, and review of company and third party
documentation, among other things.
We believe the allegations in the securities and derivative
lawsuits are without merit and intend to file motions to dismiss
the complaints in April 2008 and anticipate judgements on these
motions by June 2008.
The SEC initiated an investigation on October 18, 2007 with
respect to the above accounting matters and, on March 24,2008, we were informed that the SEC staff did not intend to
recommend any enforcement action by the SEC against us.
Based on the results of this independent investigation, the
decision by the SEC staff not to recommend any enforcement
action against us and consultation with our legal counsel, we
believe it is not probable that an unfavorable outcome will
occur upon the ultimate resolution of the pending litigation for
this matter. It is not possible, however, for us to reasonably
estimate the amount of loss, if any, we would incur in the event
of an unfavorable outcome from the resolution of this
uncertainty.
We are not involved in any other litigation or legal or
administrative proceedings that would have a material adverse
effect on our business operations.
Regulatory
Framework
This section sets forth a summary of the most significant
regulations and requirements that affect our business activities
in China or our shareholders’ right to receive dividends
and other distributions from us.
Renewable
Energy Law and Government Directives
In February 2005, China enacted its Renewable Energy Law, which
became effective on January 1, 2006. The Renewable Energy
Law sets forth national policies to encourage and support the
development and use of solar energy and other non-fossil fuel
renewable energy and their on-grid application. It authorizes
the relevant government authorities to set favorable prices for
the purchase of electricity generated by solar and other
renewable power generation systems.
The law also encourages the installation and use of
solar-powered water-heating systems, solar-powered heating and
cooling systems and other solar energy utilization systems. It
expressly contemplates and permits financial incentives, such as
national funding, preferential loans and tax preferences for the
development of renewable energy projects. In January 2006, the
PRC National Development and Reform Commission promulgated two
implementation directives with respect to the Renewable Energy
Law. These directives set forth specific measures relating to
pricing of electricity generated by solar and other renewal
power generation systems and sharing by all utility end-users of
certain costs incurred by solar and other renewable power
generation systems. The directives further provide specific
allocations of administrative and supervisory powers and
responsibilities among various relevant government agencies at
the national and provincial levels and stipulate relevant
responsibilities among electricity grid companies and power
generation companies with a view to the implementation of the
renewable energy law.
The PRC Ministry of Construction issued a directive in June 2005
to encourage the use of solar energy in residential and
commercial buildings and the increased application of solar
energy in townships in China. Because China is consuming more
and more energy as its economy expands and the related
industrial pollution is threatening the environment and
livelihood of the nation, the PRC State Council promulgated a
directive in July 2005 with specific measures to conserve energy
resources.
In December 2006, the PRC National Development and Reform
Commission issued a notice to announce the PRC government’s
support of the development of renewable energy resources in
China, including solar power. The government appropriated an
aggregate of $330 million in equivalent Renminbi as a grant
to support various renewable energy projects, including
commercialization of wafer and ingot production at our company.
Environmental
Regulations
We are subject to a variety of governmental regulations related
to the storage, use and disposal of hazardous materials. The
major environmental regulations applicable to us include the PRC
Environmental Protection Law, the PRC Law on the Prevention and
Control of Water Pollution, the PRC Implementation Rules of the
Law on the
Prevention and Control of Water Pollution, the PRC Law on the
Prevention and Control of Air Pollution, the PRC Law on the
Prevention and Control of Solid Waste Pollution and the PRC Law
on the Prevention and Control of Noise Pollution.
Restriction
on Foreign Investments
The principal regulation governing foreign ownership of solar
power businesses in China is the Foreign Investment Industrial
Guidance Catalogue, effective as of January 1, 2005. Under
this guidance, the solar power business is listed as an industry
with foreign investments permitted.
Tax
The PRC enterprise income tax is calculated based on the taxable
income determined under the PRC accounting standards and
regulations. In accordance with the PRC Income Tax Law for
Enterprises with Foreign Investment and Foreign Enterprises and
the related implementation rules effective prior to
January 1, 2008, foreign-invested enterprises incorporated
in China, such as Jiangxi LDK Solar, Jiangxi LDK PV Silicon and
Jiangxi LDK Polysilicon, were generally subject to a national
enterprise income tax at the rate of 30% on their taxable income
and a local enterprise income tax at the rate of 3% of their
taxable income. This foreign invested enterprise income tax law
and its implementation rules provided certain favorable tax
treatments to foreign-invested enterprises such as a two-year
exemption from the national enterprise income tax for their
first two profitable years of operation and a 50% reduced
national enterprise income tax for the subsequent three years
for manufacturing companies with operating terms of more than
ten years. A company that qualified as a “high and new
technology enterprise” and concurrently was registered and
operated in a recognized national “high and new technology
zone” was entitled to a reduced national enterprise income
tax rate of 15%.
In March 2007, the National People’s Congress enacted a new
Enterprise Income Tax Law, which became effective on
January 1, 2008. The new tax law imposes a unified income
tax rate of 25% on all domestic enterprises and foreign-invested
enterprises unless they qualify under certain limited
exceptions. The new tax law permits companies to continue to
enjoy their preferential tax treatment under the prior tax
regime until such treatment expires in accordance with its
terms, on the condition that such preferential tax treatment is
available under the grandfather clause of the new tax law. Under
the new tax law, “high and new technology enterprises”
specially supported by the PRC government and re-recognized in
accordance with the new set of criteria under the new tax law
will continue to enjoy a reduced national enterprise tax rate of
15%. Neither the new tax law nor the implementation regulations
issued by the State Council under the new tax law, however, has
specified the new criteria for high and new technology
enterprises.
Under the PRC income tax law concerning foreign investment and
foreign enterprises, the income tax rate applicable to Jiangxi
LDK PV Silicon and Jiangxi LDK Polysilicon in 2007 was 33%.
Effective January 1, 2008 Jiangxi LDK PV Silicon and
Jiangxi LDK Polysilicon are subject to the income tax rate of
25% pursuant to the new Enterprise Income Tax Law.
Pursuant to the PRC Provisional Regulation on the Value Added
Tax, or VAT, and its implementation rules, any entity or
individual engaged in the sale of goods, provision of specified
services and importation of goods in China is generally required
to pay a VAT, at the rate of 17.0% of the gross sales proceeds
received, less any deductible VAT already paid or borne by such
entity or individual. When an entity exports goods from China,
the exporter is entitled to a refund of a portion or all of the
VAT paid by the entity. Our imported raw materials used for
manufacturing products subject to export, to the extent they are
placed in government-sanctioned bonded warehouses, are exempt
from import VAT.
Pursuant to the new tax law and the related implementation
regulations, since January 1, 2008, dividend payments to
foreign investors made by foreign-invested enterprises, such as
our PRC subsidiaries, Jiangxi LDK Solar, Jiangxi LDK PV Silicon
and Jiangxi LDK Polysilicon, will be subject to a 10%
withholding tax, unless any such foreign investor’s
jurisdiction of incorporation has a tax treaty with China that
provides for a different withholding arrangement. The Cayman
Islands, where we are incorporated, does not have such a tax
treaty with China. In addition, under the new tax law,
enterprises organized under the laws of jurisdictions outside
China with their “de facto management bodies” located
within China may be considered PRC resident enterprises and
therefore
subject to PRC enterprise income tax at the rate of 25% on their
worldwide income. Under the implementation regulations issued by
the State Council relating to the new PRC Enterprise Income Tax
Law, “de facto management bodies” are defined as
bodies that have material and overall management control over
the business, personnel, accounts and properties of an
enterprise. Substantially all of our management is currently
based in China, and may remain in China. However, no more
detailed implementation regulations are specified on how to
apply or enforce the “de facto management bodies.” The
tax consequences of such treatment are currently unclear.
Therefore, we may be treated as a PRC resident enterprise for
PRC enterprise income tax purposes and subject to PRC enterprise
income tax at the rate of 25% on our worldwide income.
Foreign
Currency Exchange
China regulates foreign currency exchanges primarily through the
following rules and regulations:
•
Foreign Currency Administration Rules of 1996, as
amended; and
•
Administrative Rules of the Settlement, Sale and Payment of
Foreign Exchange of 1996.
As we have disclosed in “Item 3 — Risk
Factors — Risks Relating to Business Operations in
China — Changes in foreign exchange and foreign
investment regulations in China may affect our ability to invest
in China and the ability of our PRC subsidiary to pay dividends
and service debts in foreign currencies” in this report,
Renminbi is not a freely convertible currency at present. Under
the current PRC regulations, conversion of Renminbi is permitted
in China for routine current-account foreign exchange
transactions, including trade and service related foreign
exchange transactions, payment of dividends and service of
foreign debts. Conversion of Renminbi for most capital-account
items, such as direct investments, investments in PRC securities
markets and repatriation of investments, however, is still
subject to the approval of the SAFE.
Pursuant to the above-mentioned administrative rules,
foreign-invested enterprises, such as Jiangxi LDK Solar, may
buy, sell
and/or remit
foreign currencies for current-account transactions at banks in
China with authority to conduct foreign exchange business by
complying with certain procedural requirements, such as
presentment of valid commercial documents. As disclosed, for
most capital-account transactions, approval from the SAFE is a
pre-condition. Capital investments by foreign-invested
enterprises outside China are also subject to limitations and
requirements in China, such as prior approvals from the PRC
Ministry of Commerce, the SAFE and the PRC National Development
and Reform Commission, or the NDRC.
Dividend
Distribution
The principal regulations governing distribution of dividends by
wholly foreign owned enterprises, such as Jiangxi LDK Solar,
include:
•
Corporation Law of 1993, as amended;
•
Wholly Foreign-Owned Enterprise Law of 1986, as amended; and
•
Wholly Foreign-Owned Enterprise Law Implementation Rules of
1990, as amended.
Under the current regulatory regime in China, foreign-invested
enterprises in China, including Jiangxi LDK Solar, may pay
dividends only out of their accumulated profits, if any,
determined in accordance with the PRC accounting standards and
regulations. After making up for any deficit in prior years
pursuant to the PRC laws, a wholly foreign-owned enterprise in
China, such as Jiangxi LDK Solar, is required to set aside at
least 10% of their after-tax profit calculated in accordance
with the PRC accounting standards and regulations each year as
its general reserves until the cumulative amount of such
reserves reaches 50% of its registered capital. These reserves
are not distributable as cash dividends. The board of directors
of a wholly foreign-owned enterprise has the discretion to
allocate a portion of its after-tax profits to its staff welfare
and bonus funds, which is likewise not distributable to its
equity owners except in the event of a liquidation of the
foreign-invested enterprise.
The SAFE issued a public notice in October 2005, or the SAFE
notice, requiring PRC residents, including both legal persons
and natural persons, to register with the relevant local SAFE
branch before establishing or gaining control over any company
outside China, referred to in the SAFE notice as an
“offshore special purpose company,” for the purpose of
acquiring any assets of or equity interest in PRC companies and
raising funds from overseas. In addition, any PRC resident that
is a shareholder of an offshore special purpose company is
required to amend its SAFE registration with the local SAFE
branch, with respect to that offshore special purpose company in
connection with any increase or decrease of capital, transfer of
shares, merger, division, equity or debt investment or creation
of any security interest. If any PRC shareholder of any offshore
special purpose company fails to make the required SAFE
registration and amendment, the PRC subsidiaries of that
offshore special purpose company may be prohibited from
distributing their profits and the proceeds from any reduction
in capital, share transfer or liquidation to the offshore
special purpose company. Moreover, failure to comply with the
SAFE registration and amendment requirements described above
could result in liability under PRC laws for evasion of
applicable foreign exchange restrictions.
The NDRC promulgated a rule in October 2004, or the NDRC rule,
which requires NDRC approval for overseas investment made by
PRC-incorporated entities. The NDRC rule also provides that
approval procedures for overseas investment by PRC individuals
will be based on the NDRC rule.
On August 8, 2006, six PRC regulatory agencies, including
the Ministry of Commerce, the State Assets Supervision and
Administration Commission, the State Administration for
Taxation, the State Administration for Industry and Commerce,
the CSRC, and the SAFE, jointly adopted the Regulation on
Mergers and Acquisitions of Domestic Enterprises by Foreign
Investors, or the new M&A rule, which became effective on
September 8, 2006. This regulation includes provisions that
purport to require special purpose companies formed for purposes
of overseas listing of equity interest in PRC companies and
controlled directly or indirectly by PRC companies or
individuals to obtain the approval of the CSRC prior to the
listing and trading of their securities on any overseas stock
exchange.
On September 21, 2006, the CSRC published on its official
website procedures regarding its approval of overseas listings
by special purpose companies. The CSRC approval procedures
require the filing of a number of documents with the CSRC and it
could take several months to complete the approval process.
The application of the new M&A rule with respect to
overseas listings of special purpose companies remains unclear
with no consensus currently among leading PRC law firms
regarding the scope of the applicability of the CSRC approval
requirement.
Our PRC counsel, Grandall Legal Group, has advised us that,
based on their understanding of the current PRC laws,
regulations and rules, including the new M&A rule and the
CSRC procedures announced on September 21, 2006:
•
CSRC currently has not issued any definitive rule or
interpretation requiring offerings like our IPO to be subject to
its new procedure; and
•
In spite of the above, because we completed our restructuring
and established an overseas holding structure before
September 8, 2006, the effective date of the new M&A
rule, neither the new M&A rule nor the CSRC procedures
require an application to be submitted to the CSRC for the
approval of the listing and trading of our ADSs on the New York
Stock Exchange unless we are clearly required to do so by
possible later rules of CSRC.
C.
Organization
Structure
Our principal operating subsidiary, Jiangxi LDK Solar, was
incorporated in China on July 5, 2005 by Suzhou Liouxin, a
company incorporated under the laws of China, and Liouxin
Industrial Limited, a company incorporated under the laws of
Hong Kong, each beneficially and wholly owned by
Mr. Xiaofeng Peng, our founder, chairman and chief
executive officer. We were incorporated in the Cayman Islands on
May 1, 2006 by LDK New Energy, a British Virgin Islands
company wholly owned by Mr. Peng, to acquire all of the
equity interests in Jiangxi LDK
Solar from Suzhou Liouxin and Liouxin Industrial Limited. On
September 5, 2006, we incorporated LDK International Solar
Co., Ltd. in Hong Kong as our wholly owned subsidiary. On
January 15, 2007, we incorporated LDK Solar USA, Inc. in
California as our wholly owned subsidiary. In June 2007, we
completed the initial public offering of our ADSs and listed our
ADSs on the New York Stock Exchange. In July and October 2007,
respectively, we incorporated two operating subsidiaries in
China, Jiangxi LDK PV Silicon, and Jiangxi LDK Polysilicon, for
our two polysilicon production factories under construction in
Xinyu city, Jiangxi province.
As of the date of this report, our corporate structure is as
follows:
D.
Property,
Plants and Equipment
For information regarding our material property, plant and
equipment, see “— Suppliers —
Equipment” and “— Properties”.
ITEM 4A
UNRESOLVED
STAFF COMMENTS
Not applicable.
ITEM 5.
OPERATING
AND FINANCIAL REVIEW AND PROSPECTS
A.
Operating
Results
You should read the following discussion and analysis of our
financial condition and results of operations in conjunction
with the section entitled “Item 3 — Selected
Financial and Operating Data” and our audited consolidated
financial statements included elsewhere in this report. The
following discussion and analysis contain forward-looking
statements that involve risks and uncertainties. Our actual
results and the timing of selected events could differ
materially from those anticipated in these forward-looking
statements as a result of various factors, including those set
forth under “Item 3 — Risk Factors” and
elsewhere in this report.
Overview
We are a leading manufacturer of multicrystalline solar wafers.
We provide solar wafers to photovoltaic products, including
solar cells and solar modules, both in and outside China. The
multicrystalline wafers we produce and sell are between 180 and
220 microns in thickness. In addition, we provide wafer
processing services to monocrystalline and multicrystalline
solar cell and module manufacturers. We also sell polysilicon
materials, which include ingots and polysilicon scraps.
As of December 31, 2007, we had an annual multicrystalline
wafer production capacity of approximately 420 MW.
According to our current expansion plan, we intend to continue
to increase our annual production
capacity, which we expect to reach approximately 800 MW by
the end of 2008 and approximately 1,600 MW by the end of
2009. Despite the current industry-wide shortage of polysilicon,
we believe that our polysilicon feedstock inventory and
commitments from suppliers are sufficient to satisfy over 80% of
our estimated requirements for 2008. The majority of our
polysilicon feedstock consists of polysilicon scraps and
recyclable polysilicon. We source a portion of polysilicon
feedstock from the spot market from time to time depending on
the price and our requirements. For the year ended
December 31, 2006, we derived approximately 75.5% of our
net sales from sales to manufacturers of photovoltaic products
in China and approximately 24.5% from exports. For the year
ended December 31, 2007, we derived approximately 29.4% of
our net sales from sales to manufacturers in China and
approximately 70.6% from exports.
In August 2007, we commenced the construction of our polysilicon
production plant located near our current solar wafer
manufacturing facilities in Xinyu city of Jiangxi province. Our
polysilicon production plant consists of two factories under
construction, one with an expected annual installed polysilicon
production capacity of 15,000 metric tons and the other with an
expected annual installed polysilicon production capacity of
1,000 metric tons. Our plan is to complete the construction of
the 1,000-metric-ton factory by the end of the second quarter of
2008 and the 15,000-metric-ton factory by the end of 2008.
Polysilicon produced at our plant will be used primarily for the
manufacture of our solar wafers. We currently expect to achieve
an aggregate installed annual production capacity of
approximately 7,000 metric tons of polysilicon by the end of
2008 and approximately 16,000 metric tons by the end of 2009.
Since we made our first commercial sales of multicrystalline
wafers in April 2006, we have experienced significant growth.
Our net sales increased from $105.5 million for the year
ended December 31, 2006 to $523.9 million for the year
ended December 31, 2007. Our net income increased from
$30.2 million for the year ended December 31, 2006 to
$144.1 million for the year ended December 31, 2007.
Key
Factors Affecting Our Results of Operations
The following are key factors that affect our financial
condition and results of operations. They are important for
understanding our business:
•
demand for our solar power products, including government
incentives to promote the usage of solar energy;
•
our production capacity and its utilization;
•
the availability, cost, quality and mix of our polysilicon
feedstock;
•
our ability to produce polysilicon feedstock at our polysilicon
manufacturing plant in sufficient quantities cost-efficiently;
•
our manufacturing costs; and
•
the pricing of our products.
Demand
for our solar products
Our business and revenue growth is, in part, a function of the
demand for solar power products. Although the solar power market
remains at a relatively early stage of development and it is
uncertain whether solar energy will be widely adopted, demand
for solar energy products has grown significantly over the past
decade. According to Photon International, global crystalline
solar cell or module production will increase from 2.3 gigawatts
in 2006 to 17.9 gigawatts in 2011, representing a compound
annual growth rate of 50.7%. According to Solarbuzz,
monocrystalline wafers in 2006 represented approximately 42% of
the global photovoltaic cell production while multicrystalline
wafers constituted approximately 49%.
Demand for solar products is driven, in part, by government
incentives that make the economic cost of solar power
competitive compared to that of traditional forms of electricity
generation. The unsubsidized cost of using solar energy is
currently more expensive, on a per watt basis, than the retail
cost of conventional fossil fuel-generated, hydroelectric or
nuclear energy sources in most industrialized regions of the
world. To the extent that government incentives decrease, demand
for our solar wafers and our sales and profits may be harmed.
Demand for
solar products is also driven by their cost competitiveness as
compared to other alternative energy resources that are also
subsidized by government incentives.
Our
production capacity and its utilization
Demand for our solar wafers is currently greater than our
production capacity. As of December 31, 2007, we had an
annual production capacity of approximately 420 MW. All of
our principal production facilities are operating at close to
full capacity. As a result, we need to increase our production
capacity in order to capitalize on the strong demand for our
products and grow our business and net sales. We plan to
increase our annual production capacity of multicrystalline
wafers to approximately 800 MW by the end of 2008 and
approximately 1,600 MW by the end of 2009. If we fail, or
encounter significant delays in our efforts, to establish or
successfully utilize additional manufacturing capacity or to
increase manufacturing output, we will be unable to increase our
sales and profits and capture additional market share, and our
results of operations will be adversely affected.
Availability,
cost, quality and mix of our polysilicon feedstock
Solar-grade polysilicon is a specially processed form of silicon
and is the primary raw material used to make our
multicrystalline wafers. The increase in demand for solar energy
products has led to an industry-wide polysilicon shortage and
significant price increases in polysilicon feedstock. As a
result, our raw material costs have increased. According to
Solarbuzz, the average long-term supply contract price of virgin
polysilicon increased from approximately $35 to $40 per kilogram
delivered in 2005 to $50 to $55 per kilogram delivered in 2006,
and was estimated to increase to $65 to $75 per kilogram
delivered in 2008. In addition, according to Solarbuzz, spot
polysilicon prices ranged from $250 per kilogram to $400 per
kilogram in 2007.
Access to a secure and stable supply of polysilicon feedstock
continues to be a critical factor that could limit our
production output. Since our inception, we have relied on a
combination of one-time purchase orders and long-term purchase
contracts with our suppliers in order to fulfill our polysilicon
requirements. We have inventory and commitments from polysilicon
suppliers that we believe will satisfy over 80% of our estimated
requirements for 2008. However, some of our polysilicon supply
agreements are subject to fluctuating market prices or price
negotiations with our suppliers. We source a portion of
polysilicon feedstock from the spot market from time to time
depending on the price and our requirements. We are continuing
to secure additional supply to support our growth without
interruption. To increase our raw material supply and reduce
costs, our polysilicon feedstock also includes polysilicon
scrap, polysilicon powder, broken wafers and recyclable
polysilicon sourced from semiconductor manufacturers, equipment
vendors and others, which we use in our ingot manufacturing
process. Scraps and recyclable materials account for the
majority of our polysilicon feedstock. We also purchase
polysilicon ingots from time to time to produce wafers. If we
fail to continue to acquire sufficient quantities of polysilicon
at commercially viable prices, our business and profitability
will be adversely affected.
Our
ability to produce polysilicon feedstock at our polysilicon
manufacturing plant
We commenced the construction of our polysilicon production
plant located near our current solar wafer manufacturing
facilities in Xinyu city of Jiangxi province in August 2007. Our
polysilicon production plant consists of two factories under
construction, one with an expected annual installed polysilicon
production capacity of 15,000 metric tons and the other with an
expected annual installed polysilicon production capacity of
1,000 metric tons. Our plan is to complete the construction of
the 1,000-metric-ton factory by the end of the second quarter of
2008 and the 15,000-metric-ton factory by the end of 2008.
Polysilicon produced at our plant will be used primarily for the
manufacture of our solar wafers. We currently expect to achieve
an aggregate installed annual production capacity of
approximately 7,000 metric tons of polysilicon by the end of
2008 and approximately 16,000 metric tons by the end of 2009.
Our financial condition and results of operations will be
determined, to a large extent, on whether we can finish the
construction of and operate our polysilicon production plant at
the planned production capacity in a cost efficient manner.
Our cost of goods sold consists primarily of the costs of
polysilicon feedstock, raw materials and other manufacturing
costs. For the year ended December 31, 2007, our costs of
polysilicon feedstock accounted for approximately 80.7% of our
cost of goods sold. As we believe global polysilicon supplies
will increase and polysilicon prices will decline in the long
run, we expect that our manufacturing costs as a percentage of
our cost of goods sold will become more significant. Since our
inception, we have taken a series of measures to reduce our
manufacturing costs, through increased production scale,
improved production yield, using automatic sorting equipment to
reduce wafer breakage, and more skilled manufacturing personnel
following their initial learning curve. If we fail to continue
to reduce our manufacturing costs, our profitability will be
adversely affected.
Pricing
of our wafer products
Our wafer prices are based on a variety of factors, including
global market wafer prices, supply and demand conditions in
China, and the terms of our customer contracts, including sales
volumes and the terms on which certain customers supply us with
polysilicon. We price our wafers on a per-piece basis. According
to Photon Consulting, wafer prices on a per-watt basis are
expected to decline in the next few years due to increased
production efficiencies, expected increases in global
polysilicon supplies and declines in polysilicon prices, and
increased wafer production capacity in our industry, and we
expect the average selling price of our wafers to decline in
2008 and thereafter. If wafer prices decline and we are unable
to lower our costs in line with the price decline, whether
through manufacturing larger ingots or thinner wafers, or
through technological advances, our gross margins would be
adversely affected. In addition, as a part of our geographic
expansion strategy, we plan to significantly expand our overseas
sales in 2008 and future years to target the top 20 solar cell
and module manufacturers in the world to strengthen our
long-term customer base. The current prevailing international
market price for solar wafers is lower than the prevailing PRC
market price. As a result, our increase in overseas sales may
reduce our gross margin.
Net
Sales
We derive revenues primarily from the sale of multicrystalline
wafers. We also sell a small number of monocrystalline wafers.
We provide wafer processing services to customers who supply
silicon materials
and/or
multicrystalline or monocrystalline ingots to us for processing
into wafers. The silicon materials we sell include
multicrystalline ingots as well as silicon scraps. In the year
ended December 31, 2006, our net sales were generated
almost entirely from the sale of wafers, which accounted for
97.2% of our net sales. Sales of silicon materials and wafer
processing services accounted for 2.4% and 0.4%, respectively,
of our net sales during the year ended December 31, 2006.
In the year ended December 31, 2007, approximately 91.6% of
our net sales were generated from sales of multicrystalline
wafers and 4.1% from sales of monocrystalline wafers. Sales of
silicon materials and wafer processing services accounted for
0.7% and 3.6%, respectively, of our net sales during the year
ended December 31, 2007. We expect that sales of
multicrystalline wafers will continue to account for a majority
of our net sales for the foreseeable future. We also expect that
our net sales will increase as we expand our production capacity
to meet market demand.
Our net sales are affected by our unit sales volume and average
selling prices. We currently make most of our sales to customers
through non-exclusive, short-term purchase order arrangements.
Increased sales on a contract rather than spot market basis are
likely to lead to a reduction in average selling prices. We have
entered into long-term sales arrangements with original
contractual terms of five years or longer with fixed quantities
with some of our major customers, including Hyundai, Solartech
Energy, Neo Solar and
Q-Cells.
Some of these long-term agreements are subject to periodic price
re-negotiation or re-setting. We have also entered into
agreements with Chinalight,
E-Ton, CSI,
Gintech, GE Energy, Mosel Vitelic, Motech, Neo Solar and
Solartech Energy pursuant to which we have committed to supply
each of them with specific annual quantities of wafers over the
next few years, with some subject to periodic negotiations on
prices. For the year ended December 31, 2006, our top five
customers accounted for 70.2% of our net sales. Suntech and
Solarfun contributed 39.7% and 13.9%, respectively, of our net
sales for the same period. For the year ended December 31,2007, our top five customers accounted for 42.7% of our net
sales, and Solarfun and
Q-Cells
contributed 12.3% and 10.0%, respectively, of our net sales.
We determine the geographical market of our net sales based on
the immediate destination of our goods shipped. We will
periodically adjust our geographic market classification on the
basis of our sales as our management determines from time to
time to be appropriate in reflecting our operations.
Cost of
Goods Sold
Our cost of goods sold consists primarily of:
•
polysilicon feedstock, including solar-grade virgin polysilicon,
polysilicon ingots, polysilicon powder, scraps and recyclable
polysilicon (the costs are determined using the weighted average
method);
•
consumables, including slurry, crucibles, sawing wires and
packaging materials;
•
depreciation and amortization of property, plant, equipment and
technical know-how;
•
factory overhead, including utilities, net of government
subsidies, maintenance of production equipment and other support
expenses associated with the manufacturing of our solar wafers
and ingots;
•
direct labor, including salaries and benefits of personnel
directly involved in manufacturing activities;
•
stock-based compensation attributable to our manufacturing
personnel; and
•
provision for finished products with defects.
Our total cost of goods sold will increase as we increase our
production volume. We do not record polysilicon costs for our
wafer processing services.
Operating
Expenses
Our operating expenses include selling expenses, general and
administrative expenses, and research and development expenses.
Our operating expenses will increase substantially as we expand
our operations in the next few years.
Selling
expenses
Selling expenses consist primarily of salaries and benefits for
sales personnel, transportation costs and marketing expenses. We
have incurred immaterial marketing expenses since our inception
primarily due to the current strong demand for our products. Our
selling expenses will increase as we increase our sales and
marketing
efforts, hire additional sales personnel and establish overseas
sales and support offices to enhance the effectiveness of our
direct marketing.
General
and administrative expenses
General and administrative expenses consist primarily of
salaries, bonuses and benefits for our administrative and
management personnel, consulting and professional service fees,
insurance premiums, travel and related costs of our
administrative and management personnel, and costs of
maintaining our information technology systems. General and
administrative expenses also include the share-based
compensation attributable to our directors, administrative and
management personnel and service providers. Our general and
administrative expenses will increase with the anticipated
growth of our business and continued upgrade of our information
technology infrastructure. Our general and administrative
expenses will also increase as a result of becoming a listed
public company in the United States upon completion of our IPO
in June 2007 including investor relations and compliance-related
costs.
Research
and development expenses
Research and development expenses primarily relate to raw
materials used in our research and development activities,
research and development personnel costs, and other costs
related to the design, development, testing and enhancement of
our products and processes. Research and development expenses
also include the share-based compensation attributable to our
research and development personnel. Our research and development
expenses also include costs incurred in connection with our
joint research and development programs with Shanghai Jiaotong
University and Nanchang University. We expense research and
development costs as incurred.
We expect our research and development expenses to increase
substantially in the near future as we hire additional research
and development personnel, devote more resources toward
improving manufacturing processes and optimizing polysilicon use
in the production of our solar wafers and ingots.
Share-based
Compensation Expenses
For the year ended December 31, 2006, we recorded
share-based compensation expenses of approximately $2,028,000.
We allocated these share-based compensation expenses as follows:
•
approximately $174,000 to our cost of goods sold;
•
approximately $1,697,000 to our general and administrative
expenses; and
•
approximately $157,000 to our research and development expenses.
For the year ended December 31, 2007, we recorded
share-based compensation expenses of approximately $9,549,000.
We allocated these share-based compensation expenses as follows:
•
approximately $1,772,000 to our cost of goods sold;
•
approximately $19,000 to our selling expenses;
•
approximately $5,828,000 to our general and administrative
expenses;
•
approximately $1,771,000 to our research and development
expenses; and
•
approximately $159,000 was capitalized in property, plant and
equipment.
We made the above allocations on the basis of the job functions
of grantees to whom we granted the stock options. As of
December 31, 2006 and 2007, there was unrecognized
compensation cost in the aggregate of $10.0 million and
$36.3 million, respectively, relating to non-vested stock
options. We expect to recognize this stock option compensation
cost over the remaining vesting period of the related options.
We will incur additional share-based compensation expenses in
2008 and future periods due to amortization of the unrecognized
cost as of December 31, 2007 as well as additional stock
option grants after December 31, 2007.
Our other income and expenses consist of interest income,
interest expense, unrealized gains and losses for change in fair
value of derivative financial instruments, foreign currency
exchange gains and losses and government subsidies. We have
entered into derivative financial instruments such as foreign
currency exchange forward contracts and interest rate swap
contracts. Derivative financial instruments are initially
recognized in our balance sheet at fair value and subsequently
re-measured to their fair value with changes in fair value
included in determination of our net income.
Interest
income or expense
Our interest income represents interests on our cash balances.
Our interest expense consists primarily of interest expenses
with respect to our short-term and long-term borrowings from
banks and related parties less interest expenses capitalized to
the extent they relate to our capital expenditures. During the
year ended December 31, 2006, we incurred charges relating
to the embedded beneficial conversion feature of our
exchangeable notes issued during the year. Our interest income
and expense also include our gain or loss on interest rate swap
contracts.
Foreign
currency exchange loss, net
Our foreign currency exchange loss, net, derives from our net
exchange gains and losses on our monetary assets and liabilities
denominated in foreign currencies as well as our foreign
exchange forward contracts during the relevant period.
Government
subsidy
Government subsidy represents grants and payments by the PRC
government to support the photovoltaic industry and our research
and development efforts. Some of the government subsidies are
calculated on the basis of our tax payments, including income
tax, if any, value-added tax and stamp duty tax.
Government subsidy to compensate our research and development
expenses is recorded as a reduction of research and development
expenses. Government subsidy to compensate our electricity costs
is recorded as a reduction of cost of goods sold. Government
subsidy not connected to any specific expenses incurred by us is
recorded as other income.
Taxation
and Incentives
Under the current laws of the Cayman Islands, we are not subject
to any income or capital gains tax. Additionally, dividend
payments made by us are not subject to any withholding tax in
the Cayman Islands.
Under the former PRC laws and regulations, a company established
in China was typically subject to a national enterprise income
tax at the rate of 30% on its taxable income and a local
enterprise income tax at the rate of 3% on its taxable income.
The PRC government provided various incentives to
foreign-invested enterprises to encourage foreign investments.
Such incentives include reduced tax rates and other measures.
Foreign-invested enterprises that were determined by PRC tax
authorities to be manufacturing enterprises with authorized
terms of operation for more than ten years were eligible for:
•
a two-year exemption from the national enterprise income tax
from their first profitable year; and
•
a 50% reduction of their applicable national enterprise income
tax rate for the succeeding three years.
The local preferential enterprise taxation treatment was within
the jurisdiction of the local provincial authorities as
permitted under the prior PRC tax laws relating to
foreign-invested enterprises. The local tax authorities would
decide whether to grant any tax preferential treatment to
foreign-invested enterprises on basis of
their local conditions. The Jiangxi provincial government has
announced that energy companies, including our subsidiary,
Jiangxi LDK Solar, with authorized terms of operation for more
than ten years are eligible for:
•
a five-year exemption from the 3% local enterprise income tax
from their first profitable year; and
•
a 50% reduction of their local enterprise income tax rate for
the succeeding five years.
As 2006 was the first profit-making year of Jiangxi LDK Solar,
Jiangxi LDK Solar, as a foreign invested manufacturing
enterprise, was entitled to a two-year exemption from the
national enterprise income tax from 2006 and would be subject to
a reduced national enterprise income tax rate of 15% from 2008
through 2010. Likewise, Jiangxi LDK Solar was entitled to a
five-year exemption from the local enterprise income tax
beginning in 2006 and would be subject to a reduced local
enterprise income tax rate of 1.5% from 2011 through 2015. Due
to these preferential tax treatments, no income tax was incurred
by Jiangxi LDK Solar for the years ended December 31, 2006
and 2007. Upon the lapse of the above preferential enterprise
income tax rates of Jiangxi LDK Solar, our effective tax rate
and tax expense will increase. See “Item 3 —
Risk Factors — Risks Relating to Business Operations
in China — Expiration of, or changes to, current PRC
tax incentives that our business enjoys could have a material
adverse effect on our results of operations” in this
report. In March 2007, the National People’s Congress
enacted a new Enterprise Income Tax Law, which became effective
on January 1, 2008. The new tax law imposes a unified
income tax rate of 25% on all domestic enterprises and
foreign-invested enterprises unless they qualify under certain
limited exceptions. The new tax law permits companies to enjoy
their preferential tax treatment under the prior tax regime
until such treatment expires in accordance with its terms, on
the condition that such preferential tax treatment is available
under the grandfather clause of the new tax law.
Under the PRC income tax law concerning foreign investment and
foreign enterprises, the income tax rate applicable to Jiangxi
LDK PV Silicon and Jiangxi LDK Polysilicon in 2007 was 33%.
Effective January 1, 2008, Jiangxi LDK PV Silicon and
Jiangxi LDK Polysilicon are subject to the income tax rate of
25% pursuant to the new Enterprise Income Tax Law.
Under the former PRC tax law, dividend payments to foreign
investors made by foreign-invested enterprises such as our PRC
subsidiaries, Jiangxi LDK Solar, Jiangxi LDK PV Silicon and
Jiangxi LDK Polysilicon, were exempt from PRC withholding tax.
Pursuant to the new tax law, however, dividends payable by a
foreign-invested enterprise to its foreign investors are subject
to a 10% withholding tax, unless any such foreign
investor’s jurisdiction of incorporation has a tax treaty
with China that provides for a different withholding
arrangement. The Cayman Islands, where we are incorporated, does
not have such a tax treaty with China. In addition, under the
new tax law, enterprises organized under the laws of
jurisdictions outside China with their “de facto management
bodies” located within China may be considered PRC resident
enterprises and therefore subject to PRC enterprise income tax
at the rate of 25% on their worldwide income. Under the
implementation regulations issued by the State Council relating
to the new PRC Enterprise Income Tax Law, “de facto
management bodies” is defined as the bodies that have
material and overall management control over the business,
personnel, accounts and properties of an enterprise.
Substantially all of our management is currently based in China,
and may remain in China. Under the new PRC Enterprise Income Tax
Law, we may be considered an enterprise established outside
China with “de facto management bodies” located in
China and thus a “resident enterprise” subject to the
uniform 25% enterprise income tax rate as to our global income.
We recognize deferred tax assets and liabilities for temporary
differences between financial statement and income tax bases of
assets and liabilities. Valuation allowances are provided
against the carrying amount of our deferred tax assets on our
financial statements when our management cannot conclude that it
is more likely than not that some portion or all of the deferred
tax asset will be realized.
Subsequent
Events
In January 2008, we acquired 33.5% of Jiangxi Sinoma, a
Xinyu-based crucible manufacturer for a cash consideration of
approximately Rmb 16.8 million. Our investment in
Jiangxi Sinoma will be accounted for under the equity method in
2008.
We prepare our consolidated financial statements in accordance
with U.S. GAAP, which requires us to make judgments,
estimates and assumptions that affect:
•
the reported amounts of our assets and liabilities;
•
the disclosure of our contingent assets and liabilities at the
end of each reporting period; and
•
the reported amounts of revenues and expenses during each
reporting period.
We continually evaluate these estimates based on our own
experience, knowledge and assessment of current business and
other conditions, our expectations regarding the future based on
available information and reasonable assumptions, which together
form our basis for making judgments about matters that are not
readily apparent from other sources. Since the use of estimates
is an integral component of the financial reporting process, our
actual results could differ from those estimates. Some of our
accounting policies require a higher degree of judgment than
others in their application. When reading our consolidated
financial statements, you should consider:
•
our selection of critical accounting policies;
•
the judgment and other uncertainties affecting the application
of such policies; and
•
the sensitivity of reported results to changes in conditions and
assumptions.
We believe the following accounting policies involve the most
significant judgments and estimates used in the preparation of
our financial statements:
Depreciation
and amortization
Our long-lived assets include property, plant and equipment, and
intangible assets relating to technical know-how. We amortize
our long-lived assets using the straight-line method over the
estimated useful lives of the assets, taking into account the
assets’ estimated residual values. We estimate the useful
lives and residual values at the time we acquire the assets
based on our management’s knowledge on the useful lives of
similar assets and replacement costs of similar assets having
been used for the same useful lives respectively in the market,
and taking into account anticipated technological or other
changes. On this basis, we have estimated the useful lives of
our buildings to be 30 years, our plants and machinery to
be 10 years, our furniture and office equipment to be five
years and our motor vehicles to be six years. For intangible
assets of technical know-how that we acquire from equipment
manufacturers in connection with the operation of our acquired
production equipment, we amortize them over their estimated
useful lives of 10 years. We review the estimated useful
life and residual value for each of our long-lived assets on a
regular basis. If technological changes are to occur more
rapidly than anticipated, we may shorten the useful lives or
lower the residual value assigned to these assets, which will
result in the recognition of increased depreciation and
amortization expense in future periods.
Impairment
of long-lived assets
We evaluate our long-lived assets for impairment whenever events
or changes in circumstances indicate that their carrying amounts
may not be recoverable, such as change of business plan,
obsolescence, and continuous loss suffered. We assess
recoverability of assets by comparing the carrying amount of an
asset to the estimated undiscounted future cash flows expected
to be generated by the asset. In determining estimates of future
cash flows, we have to exercise significant judgment in terms of
projection of future cash flows and assumptions. If the carrying
amount of an asset exceeds its estimated future cash flows, an
impairment charge is recognized by the amount by which the
carrying amount of the asset exceeds its fair value. We estimate
the fair value of an asset based on the best information
available, including prices for similar assets and, in the
absence of observable market prices, the result of using a
present value technique to estimate the fair value of the asset.
For the periods presented, we recorded no impairment of our
long-lived assets.
We regularly review our future consumption and sales of
inventories to determine whether any portion of our inventories
are expected to be utilized for production or sold in the next
12 months. We will classify those inventories as
non-current assets if they are not expected to be utilized or
sold within the next 12 months. The polysilicon materials
we use for our ingot and wafer production include virgin
polysilicon and recyclable polysilicon scraps in different
forms, appearance and physical characteristics. Certain types of
these recyclable silicon materials can only be used and blended
in smaller quantities for our ingot production due to
(i) restriction of packing silicon materials of different
form and appearance into crucibles; (ii) lack of trained
labor and equipment to do sorting, etching and sandblasting
required for certain types of silicon materials prior to their
use of ingot production; and (iii) our preferred blending
ratio. Our evaluation of the classification of inventories into
non-current assets are made with reference to the historical
consumption of each types of recyclable silicon materials into
each ingot production, our planned expansion of our trained
workforce and required production facilities, our forecasted
sales and estimated availability of virgin polysilicon through
our internal production plan and external purchases. In this
evaluation process, we have to exercise significant judgment in
forecasting our sales and estimated consumption of the
inventories. We routinely carry out this evaluation based on the
latest available information and record any portion of our
inventories as non-current assets based on the results of our
evaluation. As at December 31, 2007, we classified raw
materials inventories of $30.0 million into non-current
assets as we estimated that these raw materials will only be
consumed in our production in 2009.
Realization
for inventory
Our inventories, both current and non-current, are stated at the
lower of cost and net realizable value. We routinely evaluate
value of our inventories in light of market conditions and
record write-downs against the cost of inventories for a decline
in net realizable value. The evaluation takes into consideration
a number of factors including historical and forecasted
consumption of our raw materials, our sales contract of finished
goods on hand, marketability of our inventories, anticipated
change in market selling price, risk of obsolescence of our
inventories due to change in technology or change in physical
properties over time and other factors. Also, the price of
polysilicon materials is subject to fluctuation based on global
supply and demand, which will have an impact on our ability to
recover our inventories costs. Furthermore, when our finished
goods products contain defect, either caused by our production
or delivery process, as confirmed by our quality control
department, our management will decide whether to sell the
products at a discounted price or recycle the wafers back to our
furnaces as raw materials, the decision of which will impact the
amounts of inventories provision required. During the year ended
December 31, 2006 and 2007, inventory write-down were
nil and $4.2 million, respectively, due to defects
identified in certain of our finished goods products in 2007.
Share-based
compensation
We adopted our 2006 stock incentive plan on July 31, 2006
and have outstanding options granted to certain of our officers,
directors and employees and certain service providers to
purchase an aggregate of 8,147,017 ordinary shares as of the
date of this report. For a description of our stock options
granted, including the exercise prices and vesting periods, see
“Item 6 — Share Ownership — 2006
Stock Incentive Plan” in this report. Under SFAS 123R,
we are required to recognize share-based compensation as
compensation expense in our statement of operations based on the
fair value of equity awards on the date of the grant, with the
compensation expense recognized over the period in which the
recipient is required to provide service in exchange for the
equity award. A fair value-based method is used for measuring
the compensation expense related to share-based compensation. We
estimate our forfeitures based on past employee retention rates
and our expectations of future retention rates, and we will
prospectively revise our forfeiture rates based on actual
history. Our stock option compensation charges may change based
on changes in our actual forfeitures. We record compensation
expense for the fair value of the options at the grant date. We
then amortize share-based compensation expenses over the vesting
periods of the related options.
Determining the fair value of our ordinary shares requires
making complex and subjective judgments regarding projected
financial and operating results, our unique business risks, the
liquidity of our shares and our operating history and prospects
at the time of grant. Our revenues and earnings growth rates, as
well as major milestones that we have achieved, primarily since
the end of 2006, have contributed significantly to the increase
in
the fair value of our ordinary shares. However, as we were still
a private company prior to the completion of our IPO, the
determination of these fair values was inherently uncertain and
highly subjective. The assumptions used in deriving the fair
values were consistent with our business plan. These assumptions
included:
•
no material changes in the existing political, legal, fiscal and
economic conditions in China;
•
no major changes in the tax rates applicable to our subsidiary
in China;
•
our ability to retain competent management, key personnel and
technical staff to support our ongoing operations; and
•
no material deviation in industry trends and market conditions
from economic forecasts.
These assumptions were inherently uncertain. The risks
associated with achieving our forecasts were assessed in
selecting the appropriate discount rates under the income
approach. If different discount rates had been used, the
valuations would have been different and the amount of
share-based compensation would also have been different because
the fair value of the underlying ordinary shares for the options
granted would have been different.
For options granted before March 31, 2007, we adopted an
option-pricing model to allocate enterprise value to preferred
and ordinary shares. The option-pricing model involved making
estimates of the anticipated timing of a potential liquidity
event such as a sale of our company or an initial public
offering and estimates of the volatility of our equity
securities. The anticipated timing was based on the plans of our
board of directors and management. Estimating the volatility of
our share price as a privately held company was complex because
there was no readily available market for the shares. We
estimated the volatility of our shares to range from 51% to 64%
with reference to the average implied volatility of
U.S.-listed
companies in similar industries. Had we used different estimates
of volatility, the allocations between preferred and ordinary
shares would have been different.
Our share-based compensation expenses will affect our reported
net income, earnings per share and each line item of our
operating expenses, which include cost of goods sold, selling
expenses, general and administrative expenses and research and
development expenses.
From our inception to December 31, 2007, we granted the
following options to our employees and non-employees.
Represents the 100,000 options
granted on April 17, 2007 to Gang Wang, one of our
directors. We estimated the fair value of our ordinary shares as
of the grant date to be $25.00 per share, based on our
preliminary discussions with the underwriters for our IPO
regarding its possible price range.
(2)
Represents the 350,900 options
authorized on April 17, 2007 granted to our employees. The
exercise price for such options was $25.00, the low end of the
price range as shown on the cover page of our preliminary IPO
prospectus. The grant date of such options was May 14,2007, the date such exercise price was determined. We estimated
the fair value of the ordinary shares on the grant date of such
options to be $25.00 per share, the low end of the price range
set forth on the cover page of the preliminary IPO prospectus.
(3)
Represents the 100,000 options
authorized on April 17, 2007 granted to Mr. Louis T.
Hsieh, who became our director on the date of our IPO. The
exercise price for such options was $9.00 per share and the
grant date of such options was the date of our IPO prospectus.
We determined the fair value of our ordinary shares on such
grant date to be the IPO price per share, which was $27.00.
(4)
Represents options granted to our
directors and employees. The fair value of our ordinary shares
on such grant date was based on the closing price of our ADSs
listed on the New York Stock Exchange for the trading day prior
to the grant date.
In determining the fair value of the underlying ordinary shares
at the date of grant, we considered the guidance prescribed by
the AICPA Audit and Accounting Practice Aid “Valuation of
Privately-Held-Company Equity Securities Issued as
Compensation,” or the Practice Aid. We engaged an
independent valuation firm, Sallmanns (Far East) Limited, or
Sallmanns, to perform appraisals of the fair value for the
options and the ordinary shares underlying the options granted
in August 2006 and February 2007 and the fair value for the
options granted after April 1, 2007.
In its assessment of the fair value of our ordinary shares
underlying the options granted on August 1, 2006, Sallmanns
considered the income approach and the market approach, and used
the income approach to derive the fair value of our ordinary
shares.
Under the income approach, value depends on the present worth of
future economic benefits to be derived from the projected
income. Indications of value were developed by discounting
projected future net cash flows available for shareholders to
their present worth at discount rates which, in the opinion of
Sallmanns, were appropriate for the risks associated with our
business. For the income approach, Sallmanns utilized our
projected cash flows through 2011. In considering the
appropriate discount rates to be applied, Sallmanns took into
account a number of factors including the then current cost of
capital and the risks inherent in our business, such as our
limited operating history, risks associated with the
implementation of our business plan and strategies and the risks
and uncertainties inherent in the development of our business as
of the grant dates. Sallmanns used a weighted average cost of
capital, or WACC, of 17% given our short operating history and
limited historical financial records.
For the August 1, 2006 grant, Sallmanns considered the
income approach and the market approach, and used the income
approach to derive the fair value of our ordinary shares
underlying the options granted. In August 1, 2006, we were
unable to identify companies that were directly comparable to
us, given our operating history of less than a year, the nature
of our business as a pure wafer manufacturer and our rapid
development. Although there were public companies in
solar-energy related industries, the valuation ratios of those
companies vary significantly. Some valuation ratios, such as
price-to-earnings
ratios, were not available for some of those companies. As a
result, Sallmanns concluded that the historical and projected
financial conditions of these companies were significantly
different from one another and that there were no consensus
valuation ratios applicable for purposes of the valuation. As
such, Sallmanns did not believe that the market approach was
applicable to us in August 2006.
The fair value of our company was allocated between our
Series A preferred shares and our ordinary shares using the
option-pricing model. Under the option-pricing model, the
allocation of the equity fair value was based on the liquidation
of Series A preferred shares, anticipated timing of a
potential liquidity event, such as our IPO, and estimates of the
volatility of the equity securities. The anticipated timing of
our IPO was based on the plans of our board of directors and
management. The estimate of volatility of the equity securities
was based on the implied volatility of the options of comparable
companies that Sallmanns used in the market approach.
Sallmanns conducted a valuation of our ordinary shares as of
December 19, 2006, the closing date for the issuance of our
Series C preferred shares and determined that the fair
value of our ordinary shares was $5.04 per share. See
“— Embedded beneficial conversion feature of the
convertible instruments.”
For the February 6, 2007 grant, Sallmanns considered the
income approach and the market approach. For the same reasons as
described above under “— August 1, 2006
Grant”, Sallmanns did not believe that the market approach
was applicable to us in February 2007 and derived the fair value
of our ordinary shares using the income approach.
Our estimated fair value per ordinary share increased by
approximately 58.3% from $5.04 on December 19, 2006 to
$7.98 on February 6, 2007. The following is a list of the
significant factors and events that contributed to the increase:
•
We were able to secure more polysilicon feedstock. Given the
constraints in polysilicon supply in the market, we focused our
efforts on securing more polysilicon during the period between
December 19, 2006 and February 6, 2007. During this
period, we were able to secure commitments for an additional 256
tons of polysilicon for our wafer production in 2007.
•
We were able to secure more firm commitment contracts from our
customers. During this period, we were able to obtain sales
contracts for over 350 MW of wafer sales, of which
approximately 50 MW were for 2007. We also entered into
sales contracts with two of the market leaders in photovoltaic
cells, Motech and
E-Ton. We
signed a three-year agreement with Motech for approximately
100 MW and a four-year agreement with
E-Ton for
approximately 200 MW.
•
We were able to secure additional wire saws to increase our
annual production capacity. To produce wafers, we are dependent
on our wire saws to slice bricks into wafers. On January 4,2007, we entered into a master purchase agreement with HCT
Shaping to acquire 170 wire saws in total, including 17 wire
saws that had been previously delivered. We believe this
agreement will provide sufficient wire saw capacity for us to
reach our planned annual capacity of approximately 800 MW
by the end of 2008.
•
We further strengthened our management team. We hired our
president and chief operating officer, Xingxue Tong, who has
over 10 years experience in managing operations of
companies in the solar industry. Mr. Tong also serves as a
director on our board. In early February, we hired Yuepeng Wan
as our chief technology officer to lead our research and
development efforts. We also hired additional middle management
personnel.
In connection with our option grants on April 17, May 14
and May 31, 2007, we did not engage Sallmans to conduct a
valuation of our ordinary shares as of the grant dates of the
options because the completion of our IPO was more certain and
closer in time than in February 2007. For the 100,000 options
granted on April 17, 2007 to Gang Wang, one of our existing
directors, we estimated the fair value of our ordinary shares as
of the grant date based on our preliminary discussions with the
underwriters for our IPO regarding the possible price range, and
we estimated such fair value to be $25.00 per share. For the
350,900 options authorized on April 17, 2007 granted to our
employees, the exercise price was $25.00, the low end of the
price range for our IPO on the cover page of our preliminary IPO
prospectus, and therefore the grant date of such options was
May 14, 2007, the date such price range was determined. We
estimated the fair value of the ordinary shares on the grant
date of such options to be $25.00 per share, which was the low
end of the price range set forth on the cover of our preliminary
IPO prospectus. We selected the low end of the price range
because there remained uncertainties after such date regarding
the completion of our IPO and the offering price. For the
100,000 options authorized on April 17, 2007 granted to
Louis T. Hsieh, who became our director on the date of our IPO
prospectus, the exercise price was $9.00 per share and the grant
date of such options was May 31, 2007, the date of our IPO
prospectus. We determined the fair value of our ordinary shares
on such grant date to be our IPO price per share, which was
$27.00.
Our estimated fair value per ordinary share increased
substantially from $7.98 on February 6, 2007 to $25.00 on
April 17, 2007, $25.00 on May 14, 2007, the date of
our preliminary IPO prospectus for our IPO, and $27.00 on the
date of our IPO prospectus. We believe that the following
factors and events contributed to the increase in the fair value
of our ordinary shares since February 6, 2007:
•
We were able to expand our capacity significantly. At the end of
January 2007, we had an annual production capacity of
approximately 175 MW. Our annual production capacity
increased by 40 MW to approximately 215 MW at the end
of March 2007. During this period, we also ordered and paid
deposits for equipment to support approximately an additional
95 MW of annual production capacity.
•
We believed that our future growth would be more assured
following our IPO. We believed that after the completion of our
IPO, we will be able to use the proceeds from the offering for
further our capacity
expansion, achieve higher growth and secure more polysilicon
feedstock. With the proceeds from our IPO, we would be able to
purchase the equipment necessary to achieve our planned capacity
expansion to approximately 800 MW by the end of 2008 and
secure more polysilicon feedstock necessary for our future
production.
•
We were able to secure more polysilicon. During this period, we
were able to secure contracts for over 3,000 tons of polysilicon
for the next few years. Of this amount, approximately 160 tons
will be delivered in 2007 and 300 tons in 2008.
•
We were able to secure more firm commitment contracts from our
customers. During this period, we entered into sales contracts
with our customers for over 270 MW of wafer sales, of which
approximately 45 MW were for 2007 and approximately
110 MW were for 2008. We also entered into a contract with
Q-Cells, the second largest photovoltaic cell manufacturer
according to Solarbuzz. This long term contract was for three
years, during which Q-Cells would supply silicon feedstock to us
and purchase wafers from us. Under this contract, we would sell
approximately 180 MW of wafers to Q-Cells between 2007 and
2009.
•
We believed that our business prospects improved as well because
of a substantial increase in our net revenues for the three
months ended March 31, 2007 as compared with the three
months ended December 31, 2006. We achieved revenues of
$73.4 million for the three months ended March 31,2007, representing an increase of approximately 19% from our
revenues for the three months ended December 31, 2006.
•
When the valuation was conducted in February 2007, we were still
in the early stage of the offering process and there were
significant uncertainties regarding the success of our IPO. In
April 2007, we were much further along in the offering process
and the probability of a successful offering increased
significantly.
In connection with our option grants after July 1, 2007,
because we completed our IPO, we estimated the fair value of our
ordinary shares on such grant dates to be the closing price of
our ADSs listed on the New York Stock Exchange for the trading
day immediately prior to such grant date.
Embedded
beneficial conversion feature of the convertible
instruments
In connection with our private placements with strategic and
venture capital investors, we issued exchangeable notes in July
2006 and Series A, Series B and Series C
preferred shares in July, September and December 2006,
respectively. The exchangeable notes were exchangeable into our
Series A preferred shares and all our preferred shares were
convertible into our ordinary shares at a 1:1 ratio, subject to
adjustments on the basis of our audited consolidated net
earnings for the various periods as described in note
(14) to our audited consolidated financial statements
included elsewhere in this report.
We recognized and measured the embedded beneficial conversion
feature of each of our convertible instruments by allocating a
portion of the proceeds from our convertible instruments equal
to the intrinsic value of that feature to additional paid-in
capital. The intrinsic value of the embedded beneficial
conversion feature was calculated at the commitment date as the
difference between the conversion price and the fair value of
the securities into which the convertible instruments were
convertible. For our exchangeable notes, the intrinsic value was
the difference between (i) the fair value of the underlying
Series A preferred shares on the commitment date of our
exchangeable notes and (ii) the gross proceeds we received
and allocated to our exchangeable notes; and for our preferred
shares, the intrinsic value was the difference between
(i) the fair value of the underlying ordinary shares on the
respective commitment dates of our preferred shares and
(ii) the gross proceeds we received and allocated for such
preferred shares. We recognized the intrinsic value of the
embedded beneficial conversion feature of our exchangeable notes
so computed as interest expenses over the period from the date
of issuance to the date when our exchangeable notes were
exchanged into our Series A preferred shares. For our
preferred shares, we recognized the intrinsic value of their
embedded beneficial conversion feature as deemed dividends to
our preferred shareholders at the date of issuance as our
preferred shares were convertible at their respective issuance
dates. Changes to the conversion terms that would be triggered
by future events not controlled by us was accounted for as
contingent
conversion options, and the intrinsic value of such contingent
conversion options would not be recognized until and unless the
triggering event occurred.
We obtained a valuation analysis from Sallmanns with respect to
the fair value of the securities into which our convertible
instruments are convertible. Sallmanns used the income approach
to assess the fair value of our business. Under the income
approach, Sallmanns performed a discounted cash flow analysis
based on our projected cash flows through 2011. The cash flow
projections were formulated to take into consideration the
nature of our company, our relatively limited operating history,
the growth prospects of our company and the business risks
associated with our operations.
In addition to business specific assumptions, the following
major assumptions have been adopted in calculating the fair
value of our business, including:
•
WACC: WACC of 17% was applied. This was the combined result of
the risk-free rate, market return rate, industry average beta,
and our company-specific risk premium that reflects the risks
associated with achieving the projections at various stages of
development.
•
Lack of Marketability Discount, or LOMD: Sallmanns considered
both the option method and the quantitative marketability
discount model to quantify the LOMD. Both methods provided
similar results on LOMD, which decreased from 35% as at
June 28, 2006, which was the commitment date of the
issuance of our exchangeable notes, to 20% as at
September 15, 2006, which was the commitment date of the
issuance of our Series B preferred shares, and to 10% as at
December 15, 2006, which was the commitment date of the
issuance of our Series C preferred shares. The decrease in
LOMD was primarily attributable to our achievements in company
restructuring and fund raising, which increased our resources to
carry through our IPO.
The value of our business was then allocated to the fair value
of our preferred shares and ordinary shares. Sallmanns
considered the liquidation preference and conversion feature of
our preferred shares under the allocation method. To determine
the fair market value of the securities underlying our
convertible instruments required us to make complex and
subjective judgments regarding projected financial and operating
results, our unique business risks, the liquidity of our various
instruments including preferred shares, ordinary shares, share
options and warrants, and our operating history and prospects at
respective commitment dates of our convertible instruments.
In June 2007, upon completion of our IPO, all series A, B
and C preferred shares were converted into ordinary shares.
Internal
Control Over Financial Reporting
Section 404 of the Sarbanes-Oxley Act and the related SEC
rules require, beginning with our fiscal year ending
December 31, 2008, that we evaluate the effectiveness, as
of the end of each fiscal year, of our internal control over
financial reporting and include in our annual reports on
Form 20-F
for each fiscal year (i) a report of our management on our
internal control over financial reporting that contains, among
other things, management’s assessment of the effectiveness
of our internal control over financial reporting as of the end
of the most recent fiscal year, including a statement whether or
not internal control over financial reporting is effective and
(ii) the opinion of our registered public accounting firm,
either unqualified or adverse, as to whether we maintained, in
all material respects, effective internal control over financial
reporting as of the end of such fiscal year.
In the course of auditing our consolidated financial statements
for the year ended December 31, 2006, our independent
registered public accounting firm noted and communicated to us a
significant deficiency and other weaknesses in our internal
control over financial reporting. The significant deficiency
identified by our independent registered public accounting firm
was that our chief financial officer joined us in August 2006
and that we did not previously have any personnel who were
familiar with U.S. GAAP. We did not have sufficient
personnel with adequate expertise to ensure that we can produce
financial statements in accordance with U.S. GAAP on a
timely basis.
Following the identification of this significant deficiency and
other weaknesses, we adopted certain steps to address them and
to improve our internal control over financial reporting
generally. In particular, we are committed
to building a strong financial reporting, analysis and internal
control team to ensure our full compliance with U.S. GAAP.
We have hired a senior manager from a “big four”
accounting firm with extensive audit experience under
U.S. GAAP as our financial controller. To complement our
own recruiting efforts, we have retained recruiting firms to
search for additional qualified personnel to further strengthen
our finance and accounting team. We have approximately doubled
our finance and accounting staff since our IPO in June 2007 by
recruiting personnel with extensive finance and accounting
knowledge. We have engaged a “big four” independent
accounting and consulting firm that is separate from our
external auditors to provide us with consultancy services,
including training our internal finance and accounting staff in
Sarbanes-Oxley Act compliance and financial reporting under
U.S. GAAP.
No material weaknesses or significant deficiencies in our
internal control over financial reporting were identified during
our preparation of the consolidated financial statements as of
and for the year ended December 31, 2007 and during the
independent audit thereof. However, neither we nor our auditors
undertook an assessment of our internal control over financial
reporting under the Section 404 requirements described
above as we and they will be only required to do as of
December 31, 2008.
Individual
Income Tax Withholding Obligation
During the year ended December 31, 2007, certain of our
executive officers and employees exercised their share options
that vested in August 2007. Pursuant to the PRC tax laws and
regulations, the income derived from the exercise of the share
options is subject to individual income tax payable by the
optionees. As the employer that granted the options, we have an
obligation under the PRC laws to withhold such tax from the
optionees for onward payment to the PRC tax authorities. In
February 2008, the Xinyu city tax authority granted a deferral
of the payment of the income tax by such executive officers and
employees until they sell the shares. As a result, our
obligation to withhold the related income tax from these
executive officers and employees was correspondingly postponed.
In January and February 2008, some of these executive officers
and directors sold the shares acquired upon the exercise of
their share options. We are in the process of collecting income
tax due from these executive officers and directors. As of
December 31, 2007, for accounting purposes, we had an
outstanding receivable from these executive officers and
employees and payable to the PRC tax authorities of
$21.7 million in relation to the individual income tax
liabilities arising from the exercise of share options by these
executive officers and employees. Our PRC counsel, Grandall
Legal Group, has confirmed that such individual income tax
liabilities reside with the relevant optionees and not us, as
their employer, and that our obligations under the PRC laws and
regulations are limited to our reasonable efforts to collect
such taxes from the optionees for onward payment to the relevant
PRC tax authorities. Under such circumstances, Grandall Legal
Group is of the opinion that (i) the Xinyu city tax
authority has the proper authority to issue the deferral
described above and such deferral is validly issued,
(ii) in accordance with the deferral, there is no
obligation for any of such optionees to pay any PRC income tax
with respect to the exercise of their share options until after
such optionees have sold the ordinary shares they acquired upon
the exercise, (iii) after the sale of any of the ordinary
shares acquired upon the exercise by any such optionee, such
optionee will be obligated to pay the PRC income tax with
respect to the exercise, and we will not be liable for such PRC
income tax, other than to collect such tax from the optionees
for onward payment to the PRC tax authorities, and (iv) at
all times from the exercise through the date of this report,
there have been no outstanding loans or advances by us or any of
our subsidiaries to any of these optionees in respect of the PRC
income tax liabilities resulting from the exercise of their
share options.
Results
of Operations
We were incorporated in the Cayman Islands on May 1, 2006.
Our principal operating subsidiary, Jiangxi LDK Solar, was
established in China on July 5, 2005. Through a
reorganization of entities under common control, Jiangxi LDK
Solar became our wholly owned subsidiary. We commenced
commercial production of solar wafers in April 2006 at our
manufacturing facilities in Xinyu city, Jiangxi province, China.
Due to our short history of operations, the comparison of our
results of operations between 2006 and 2005 would not be
meaningful.
Our principal operating subsidiary, Jiangxi LDK Solar, was
established on July 5, 2005 in China. We had no revenue and
a net loss of $274,000 for the period from July 5, 2005 to
December 31, 2005 as a result of our pre-
production
start-up
costs and expenses, which primarily consisted of general and
administrative expenses, research and development expenses,
interest expenses and foreign currency exchange loss, net.
Interest expense and amortization of discount on exchangeable
notes
(7,133
)
(6.7
)
(9,419
)
(1.8
)
Decrease in fair value of warrants
9
0.0
2
0.0
Foreign currency exchange loss, net
(1,325
)
(1.3
)
(1,654
)
(0.3
)
Government subsidy
1,268
1.2
3,461
0.7
Earnings before income tax benefit
30,069
28.5
143,301
27.4
Income tax benefit
113
0.1
758
0.1
Net income
30,182
28.6
144,059
27.5
Accretion of Series A preferred shares to redemption value
(814
)
(0.8
)
(860
)
(0.2
)
Accretion of Series B preferred shares to redemption value
(1,799
)
(1.7
)
(2,726
)
(0.5
)
Accretion of Series C preferred shares to redemption value
(116
)
(0.1
)
(1,351
)
(0.2
)
Deemed dividend to Series A preferred shareholders
(1,568
)
(1.5
)
—
Net income available to ordinary shareholders
$
25,885
24.5
%
$
139,122
26.6
%
Net sales. We commenced commercial operations
in May 2006. Consequently, our 2006 results reflected a partial
year of operations, while our 2007 results reflected a full year
of operations. For the year ended December 31, 2007, our
net sales were approximately $523.9 million, representing
an increase of $418.4 million from our net sales of
$105.5 million for the year ended December 31, 2006.
This increase was primarily due to our increased sales volume,
which was offset in part by a decline in our average wafer
selling price. We sold 223.8 MW of wafers
during the year ended December 31, 2007 and 45.2 MW of
wafers during the year ended December 31, 2006. To meet
growing demand for our products, we have been increasing our
production capacity. We had 134 DSS furnaces and 96 wire saws in
operation as of December 31, 2007 compared with 51 DSS
furnaces and 21 wire saws in operation as of December 31,2006. During the years ended December 31, 2006 and 2007,
our net sales based on different products were as follows:
Our net sales generated from the various geographic regions
during the year ended December 31, 2007 as a percentage of
our net sales has experienced some significant changes as
compared to the year ended December 31, 2006. Based on the
immediate destination of our goods shipped, the majority of our
sales were in China 2006. However, our sales to China as a
percentage of our total sales decreased from 75.5% in the year
ended December 31, 2006 to 29.4% in the year ended
December 31, 2007, with the remainder made in the other
geographic markets. Our net sales to Asia Pacific ex-China
during the year ended December 31, 2007 increased to 41.3%
as compared to 16.3% during the year ended December 31,2006. Our net sales to Europe during the year ended
December 31, 2007 increased to 20.1% as compared to 3.2%
during the year ended December 31, 2006. Our net sales to
North America during the year ended December 31, 2007
increased to 9.2% as compared to 5.0% during the year ended
December 31, 2006. For further information on our
geographic markets, see “— Net Sales” above.
Cost of goods sold. For the year ended
December 31, 2007, our cost of goods sold was approximately
$353.7 million, representing an increase of
$289.7 million from our cost of goods sold of
$64.0 million for the year ended December 31, 2006.
Our cost of goods sold for the year ended December 31, 2007
included write-down of finished goods inventory of
$4.2 million. Our cost of goods sold for the years ended
December 31, 2006 and 2007 was offset by government
subsidies of electricity costs of $0.8 million and
$3.1 million, respectively. During the years ended
December 31, 2006 and 2007, our cost of goods sold based on
different products was as follows:
Gross profit. For the year ended
December 31, 2007, our gross profit was
$170.2 million, an increase of $128.7 million from
$41.5 million for the year ended December 31, 2006.
Our gross margin declined to 32.5% for the year ended
December 31, 2007 from 39.3% for the year ended
December 31, 2006, primarily due to an increase in the cost
of our raw materials, a write-down of finished goods inventory
of $4.2 million, a moderate decrease in our average selling
price from $2.27 per MW in 2006 to $2.24 per MW in 2007, the
combined effect of which was partially offset by an increase in
government subsidies of electricity costs of $2.3 million.
The increase in the cost of our raw materials was primarily due
to the increase in the cost of our polysilicon feedstock. In
particular, our
weighted average purchase price of polysilicon feedstock
increased from $144.6 per kilogram in 2006 to $185.8 per
kilogram in 2007.
Operating expenses. For the year ended
December 31, 2007, our operating expenses were
$23.4 million, an increase of $19.1 million from our
operating expenses of $4.3 million for the year ended
December 31, 2006. This increase was primarily due to an
increase of approximately $15.6 million in our general and
administrative expenses and an increase of approximately
$2.9 million in our research and development expenses, as a
result of additional legal and professional expenses, increase
in share based compensation expenses, (our research and
development expenses for the year ended December 31, 2006
was partially offset by government subsidy of $0.2 million
to compensate our research and development expenses), the
addition of administrative and research and development
personnel and the corresponding increases in salaries, benefits
and traveling expenses during the year ended December 31,2007.
Interest income and expense. For the year
ended December 31, 2007, our interest income was
approximately $4.1 million, an increase of
$4.0 million from our interest income for the year ended
December 31, 2006 of approximately $0.1 million. The
increase was primarily because our total cash on deposit in
interest-bearing savings accounts over this period increased
significantly as a result of our IPO in June 2007. For the year
ended December 31, 2007, our interest expense and
amortization of discount on exchangeable notes increased to
$9.4 million from $7.1 million (net of
$0.2 million and $0.1 million capitalized interest
expense in 2007 and 2006, respectively) for the year ended
December 31, 2006 as a result of increase in short-term
bank borrowings used to finance our working capital needs, and
partially offset by a decrease in discount amortization on
exchangeable notes. All of our exchangeable notes were converted
to Series A redeemable convertible preferred shares in
2006. Our interest expense for the year ended December 31,2007 was partially offset by a net gain of $0.5 million on
our interest rate swap contract.
Foreign currency exchange loss, net. For the
year ended December 31, 2007, our foreign currency exchange
loss, net, was $1.7 million, compared to $1.3 million
for the year ended December 31, 2006 primarily because we
held a larger amount of foreign currency denominated assets in
our current accounts, such as prepayments to our foreign
suppliers of polysilicon feedstock, deposits with our production
equipment vendors overseas and trade accounts receivable, for
the year ended December 31, 2007 on a net basis than we did
for the year ended December 31, 2006. We recognized an
exchange loss with respect to these assets due to the
appreciation of Renminbi. See “Exchange Rate
Information” in this report for more information on
exchange rates between the U.S. dollar and Renminbi. Our
foreign currency exchange loss for the year ended
December 31, 2007 included a net loss of $3.4 million
on foreign exchange forward contracts.
Government subsidy. For the year ended
December 31, 2007, government subsidies received totalled
$3.5 million, compared to $1.3 million for the year
ended December 31, 2006. Our government subsidy did not
include subsidy of nil and $0.2 million received from the
local government for the year ended December 31, 2007 and
2006, respectively, to compensate our research and development
expenses, which was recorded as a reduction of our research and
development expenses, or subsidy of $3.1 million and
$0.8 million received from the local government for the
year ended December 31, 2007 and 2006, respectively, to
compensate our electricity costs, which was recorded as a
reduction to our cost of goods sold.
Net income. For the year ended
December 31, 2007, our net income was $144.1 million,
an increase of $113.9 million from $30.2 million for
the year ended December 31, 2006. For the year ended
December 31, 2007, our net margin decreased to 27.5% from
28.6% for the year ended December 31, 2006. Our PRC
subsidiary, Jiangxi LDK Solar, is entitled to exemptions from
the PRC national and local enterprise income tax for at least
two and five years, respectively, beginning with calendar year
2006. Without this tax holiday, our income tax expense would
have increased by approximately $12.4 million and
$53.3 million for the year ended December 31, 2006 and
2007, respectively, with a corresponding reduction in the amount
of our net income for the periods.
Accretion of Series A, Series B, Series C
preferred shares to redemption values. We issued
our Series A preferred shares in July 2006, our
Series B preferred shares in September 2006 and our
Series C preferred shares in December 2006. For the year
ended December 31, 2007, we recognized accretion to the
redemption values of our Series A, Series B and
Series C preferred shares of approximately
$4.9 million. The accretion of the Series A,
Series B, Series C preferred shares to their
redemption prices was reflected as a reduction to our net income
and
represented the difference between our net income and our net
income available to ordinary shareholders. The Series A,
Series B, Series C preferred shares were converted
into our ordinary shares upon completion of our IPO in June 2007.
Deemed dividend to Series A preferred
shareholders. During the year ended
December 31, 2006, we recognized embedded beneficial
conversion of our Series A preferred shares of
$1.6 million, which represented the intrinsic value of the
difference between the conversion price of the Series A
preferred shares and the fair market value of the underlying
ordinary shares at the original issue date of the Series A
preferred shares. The value of the beneficial conversion feature
was treated as a deemed dividend on the Series A preferred
shares and reduced our net income to arrive at net income
available to ordinary shareholders. The Series A shares
were converted into our ordinary shares upon the completion of
our IPO in June 2007, and there was no equivalent transaction in
2007 that resulted in a deemed dividend charge to earnings.
Net income available to ordinary
shareholders. As a result of the foregoing, for
the year ended December 31, 2007, our net income available
to our ordinary shareholders was $139.1 million. Our net
income available to our ordinary shareholders for the year ended
December 31, 2006 was $25.9 million. Without the tax
holiday as described in “— Net income”
above, our net income available to our ordinary shareholders
would have been reduced by approximately $12.4 million and
$53.3 million for the years ended December 31, 2006
and 2007, respectively.
Earnings per ordinary share. For the year
ended December 31, 2007, earning per ordinary share was
$1.50 and $1.37 per share on a basic and diluted basis,
respectively. For the year ended December 31, 2006, earning
per ordinary share was $0.35 and $0.35 per share on a basic and
diluted basis, respectively. Without the tax holiday as
described in “— Net income” above, our basic
earning per ordinary share would have been reduced by $0.17 and
$0.58 for the years ended December 31, 2006 and 2007,
respectively, and our diluted net income per ordinary share
would have been reduced by $0.17 and $0.51 for the years ended
December 31, 2006 and 2007, respectively.
Interest expense and amortization of discount on exchangeable
notes
(837
)
(4,961
)
(995
)
(1,529
)
(2,180
)
(2,650
)
(3,060
)
Decrease in fair value of warrants
—
9
—
—
2
—
—
Foreign currency exchange loss, net
(36
)
(667
)
(566
)
(516
)
(576
)
(2,041
)
1,479
Government subsidy
—
—
1,268
437
406
662
1,956
Earnings before income tax benefit
1,260
4,962
24,341
24,534
28,745
41,006
49,016
Income tax benefit
57
—
2
—
—
599
159
Net income
$
1,317
$
4,962
$
24,343
$
24,534
$
28,745
$
41,605
$
49,175
On a quarterly basis, our net sales, cost of sales, gross profit
and net income had been growing at a relatively fast pace since
the three-month period ended June 30, 2006 when we made our
first commercial sale of multicystalline wafers up to the
three-month period ended December 31, 2007.
In order to secure stable supply of polysilicon materials, we
make prepayments to certain suppliers based on written purchase
orders detailing product, quantity and price. Our prepayments to
suppliers are recorded either as prepayments to suppliers, if
they are expected to be utilized within 12 months as of
each balance sheet date, or as prepayments to suppliers to be
utilized beyond one year, if they represent the portion expected
to be utilized after 12 months. As of December 31,2006 and 2007, we had prepayments to suppliers that amounted to
$37.7 million and $138.2 million, respectively, and
prepayments to suppliers to be utilized beyond one year that
amounted to nil and $19.0 million, respectively.
Prepayments to suppliers are reclassified to inventories when we
apply the prepayments to related purchases of polysilicon
feedstock, and such reclassifications are not reflected in our
consolidated cash flows from operations. Prepayments to
suppliers that are reclassified to inventories amounted to
$144.5 million and $570.9 million for the years ended
December 31, 2006 and 2007, respectively.
We make prepayments without receiving collateral, as a result,
our claims for such prepayments would rank only as an unsecured
claim, which exposes us to the credit risks of these suppliers
in the event of their insolvency or bankruptcy. From 2009
onward, we expect advances to suppliers to decrease as we start
producing our own polysilicon.
Multicrystalline wafer manufacturing and polysilicon production
require intensive capital investment and, due to our relatively
short history of operations, we have financed our operations and
capital expenditures substantially through cash flow from
financing activities, including the proceeds of our IPO and
short-term bank borrowings, as well as advance payments from
customers.
The following table sets forth a summary of our net cash flows
for the periods indicated:
Net cash provided by (used in) operating activities
$
2,511
$
(57,067
)
$
(80,663
)
Net cash used in investing activities
(20,940
)
(79,564
)
(328,623
)
Net cash provided by financing activities
28,077
154,891
462,324
Effect of exchange rate changes
39
2,280
205
Net increase in cash and cash equivalents
9,687
20,540
53,243
Cash and cash equivalents at the beginning of period
—
9,687
30,227
Cash and cash equivalents at the end of period
$
9,687
$
30,227
$
83,470
Operating
activities
During the period from July 5 to December 31, 2005,
although we had no revenues and incurred a net loss of $274,000,
our net cash provided by operating activities was
$2.5 million because we received $3.7 million from our
customers in advance payments for sales orders, which were
offset in part by prepayments to our suppliers for purchases of
materials to fill those orders.
During the year ended December 31, 2006, while we had
$30.2 million of net income, our net cash used in operating
activities was $57.1 million because we increased our
inventories by $94.9 million and increased our prepayments
to suppliers by $36.8 million to secure future sources of
materials. In addition, our pledged bank deposits placed with
our lending banking institutions amounted to $5.0 million
for the year ended December 31, 2006 while we had no such
pledged bank deposits for the period from July 5 to
December 31, 2005. These cash outflows were partially
offset by an increase of $36.3 million in advance payments
from our customers for future sales.
During the year ended December 31, 2007, while we had
$144.1 million of net income, our net cash used in
operating activities was $80.7 million primarily because we
increased our inventory by $285.1 million, our prepayments
to suppliers by $119.5 million to secure our future sources
of raw materials, and our pledged bank deposits by
$19.9 million. We pledged such bank deposits as security
for the issuance of letters of credit in connection with our
purchases of primarily polysilicon feedstock. These cash
outflows were partially offset by an increase of
$168.8 million in advance payments from our customers for
future sales.
Investing
activities
Our investing activities in 2005 comprised primarily our
acquisition of property, plant and equipment. See
“— Capital expenditures” below. During the
period from July 5 to December 31, 2005, net cash used in
investing activities amounted to $20.9 million, mainly as a
result of our purchases of property, plant and equipment for
$15.5 million and an advance of $5.5 million made to a
related party for the purchase of equipment and materials.
During the year ended December 31, 2006, net cash used in
investing activities increased to approximately
$79.6 million from $20.9 million for the period from
July 5 to December 31, 2005, mainly as a result of
acquisitions of additional property, plant and equipment for
$72.8 million, purchase of land use rights at our Xinyu
Hi-Tech Industrial Park site for $5.5 million and
acquisition of intangible assets, such as technical know-how,
from equipment manufacturers in connection with the operation of
our acquired production equipment for $1.2 million.
During the year ended December 31, 2007, net cash used in
investing activities increased to approximately
$328.6 million from $79.6 million for the year ended
December 31, 2006, mainly as a result of acquisitions of
additional property, plant and equipment for $305.2 million
and purchase of additional land use rights at our Xinyu
Hi-Tech
Industrial Park site for $23.5 million.
Financing
activities
During the period from July 5 to December 31, 2005, net
cash provided by financing activities amounted to
$28.1 million, mainly as a result of the initial capital
contributions made to Jiangxi LDK Solar and loans and advances
from related parties.
During the year ended December 31, 2006. net cash provided
by financing activities amounted to $154.9 million, mainly
as a result of an aggregate of $77.4 million of net
proceeds from our
Series A-2,
Series B and Series C preferred share placements, net
bank borrowings of $87.0 million and net proceeds of
$7.9 million from the issuance of our exchangeable notes,
which was offset by a net decrease of $11.1 million in
loans and advances from related parties and distributions of
$8.0 million to shareholders in connection with our
reorganization.
During the year ended December 31, 2007, net cash provided
by financing activities amounted to $462.3 million, mainly
as a result of net proceeds from our IPO of $365.3 million
and our net bank borrowings during the year. Our aggregate new
loans and borrowings during the year ended December 31,2007 amounted to $288.3 million. We repaid an aggregate
principal amount of $80.2 million of our loans and
borrowings during the year. In addition, to secure our bank
borrowings, we had to pledge an aggregate of $111.1 million
of our bank deposits during the year ended December 31,2007.
The aggregate principal amount of our short-term bank borrowings
outstanding as of December 31, 2005, 2006 and 2007 was nil,
$56.8 million and $264.1 million, respectively. The
aggregate principal amount of our long-term bank borrowings
outstanding as of December 31, 2005, 2006 and 2007 was nil,
$30.2 million and $25.1 million, respectively. The
additional net short-term bank borrowings we incurred subsequent
to December 31, 2006 were principally used to finance our
working capital needs.
As of December 31, 2007, our short-term borrowings amounted
to $264.1 million. The short-term bank borrowings
outstanding as of December 31, 2007 carried a weighted
average interest rate of 6.5%. The short-term bank borrowings
had maturity terms ranging from one to twelve months and
interest rates ranging from 5.6% to 7.3%, except for short-term
bank loans of approximately $1.5 million and
$1.1 million that originated in late December 2007, which
had an interest rate of 11.280% and 11.420%, respectively. These
loans were obtained from various financial institutions. The
proceeds from these short-term bank borrowings were for working
capital purposes. None of the short-term bank borrowings contain
financial covenants. These loan facilities contain no specific
renewal terms, but we expect to be able to obtain extensions of
some of the loan facilities shortly before they mature. We plan
to repay these short-term bank borrowings with cash generated by
our operating activities in the event we are unable to obtain
extensions of these facilities or alternative funding in the
future. A substantial portion of our short-term loans were
secured by certain of our buildings, land use rights, equipment,
bank deposits and raw materials, as well as buildings and land
use rights owned by a company controlled by Mr. Peng.
As of December 31, 2007, we had the following three
long-term credit facilities with an aggregate amount of
$25.1 million in bank borrowings outstanding:
•
In March 2006, we borrowed $10.2 million from China
Construction Bank of which half of the principal amount is
repayable in March 2008 and the other half is repayable in March
2009. This facility carries variable interest with reference to
the prevailing base lending rate pronounced by People’s
Bank of China. The effective interest rate of this facility of
was 7.2% as of December 31, 2007. Interest is payable
semi-annually. This facility is secured by our plant and
machinery and guaranteed by a company controlled by our chairman
and chief executive officer, Mr. Xiaofeng Peng.
•
In December 2006, we borrowed $25 million from China
Development Bank, which is repayable in 5 equal annual
installments of $5.0 million from 2007 through 2011. This
facility carries variable interest with reference to the
prevailing six-month US Libor rate. The effective interest rate
of this facility was 6.9% as of December 31, 2007. Interest
is payable monthly. This facility is secured by our plant and
machinery and land
use rights and is guaranteed by our chairman and chief executive
officer, Mr. Xiaofeng Peng and Ms. Zhou Shan.
•
In February 2007, we borrowed $8.8 million from Bank of
China, which is payable in two equal annual installments of
$4.4 million in 2008 and 2009. This facility carries
variable interest with interest rate with reference to the
prevailing two-year US$ loan rate pronounced by Bank of China.
The effective interest rate of the facility was 8.7% as of
December 31, 2007. Interest is payable quarterly. This
facility is secured by certain of our raw materials and is
guaranteed by our chairman and chief executive officers,
Mr. Xiaofeng Peng, and companies controlled by
Mr. Xiaofeng Peng.
Capital
expenditures
We made capital expenditures of $15.5 million,
$79.6 million and $328.6 million during the period
from July 5 to December 31, 2005 and for the years ended
December 31, 2006 and 2007, respectively. Our capital
expenditures were used primarily to build and expand our wafer
and ingot processing plant, purchase production equipment and
acquire related advanced technologies.
Our capital expenditures are expected to increase in the future
as we expand our manufacturing capacity in line with our
business expansion strategy. In addition, in August 2007, we
commenced the construction of our polysilicon production plant
located adjacent to our current solar wafer manufacturing
facilities in Xinyu city of Jiangxi province. As of
December 31, 2007 our polysilicon production plant consists
of two factories under construction, one with an expected annual
installed polysilicon production capacity of 15,000 metric tons
and the other with an expected annual installed polysilicon
production capacity of 1,000 metric tons. Our plan is to
complete the construction of the 1,000-metric-ton factory by the
end of the second quarter of 2008 and the 15,000-metric-ton
factory by the end of 2008. We estimate that our capital
expenditures will be approximately $700 million in 2008 and
approximately $1.1 billion in 2009.
We will need additional funding to finance our planned wafer
production capacity expansion, construction of our polysilicon
facilities and working capital requirement. In addition, we may
require additional cash due to changing business conditions or
other future developments, including any investments or
acquisitions we may decide to pursue. If we do not have
sufficient cash to meet our requirements, we may seek to issue
additional equity securities or debt securities or to borrow
from lending institutions. If we are unable to obtain additional
equity or debt financing as required, our business operations
and prospects may suffer.
Restricted
Net Assets
Our principal operating subsidiaries, Jiangxi LDK Solar, Jiangxi
LDK PV Silicon and Jiangxi LDK Polysilicon, are required under
PRC laws and regulations to make appropriations from net income
as determined under PRC accounting standards and regulations to
nondistributable reserves, which include a general reserve and
an employee benefits and bonus reserve. The general reserve is
required to be made at not less than 10% of the profit after tax
as determined under PRC accounting standards and regulations.
The employee benefits and bonus reserve is determined by our
board of directors at its discretion. The general reserve is
used to offset future extraordinary losses. Jiangxi LDK Solar,
Jiangxi LDK PV Silicon and Jiangxi LDK Polysilicon, may, upon a
resolution of their respective boards of directors, convert the
general reserve into capital. The employee benefits and bonus
reserve is used for the collective welfare of their respective
employees. These reserves represent appropriations of the
retained earnings determined under the PRC law. In addition to
the general reserve, Jiangxi LDK Solar, Jiangxi LDK PV Silicon
and Jiangxi LDK Polysilicon, are required to obtain approval
from the local government authorities prior to distributing any
of their registered share capital. Accordingly, both the
appropriations to the general reserve and the registered capital
of Jiangxi LDK Solar, Jiangxi LDK PV Silicon and Jiangxi LDK
Polysilicon, are considered as restricted net assets.
Recent
Accounting Pronouncements
In September 2006, the FASB issued SFAS No. 157,
“Fair Value Measurements.” SFAS No. 157
defines fair value, establishes a framework for measuring fair
value under U.S. GAAP and expands disclosures about fair
value measurements. SFAS No. 157 is effective for
financial statements issued for fiscal years beginning after
November 15, 2007 with earlier application encouraged. We
do not expect the adoption of this statement to have a material
effect on our consolidated financial statements.
In February 2007, the FASB issued SFAS No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities,” including an amendment to
SFAS No. 115, which allows an entity to choose to
measure certain financial instruments and liabilities at fair
value. Subsequent measurements for the financial instruments and
liabilities an entity elects to measure at fair value will be
recognized in earnings. SFAS No. 159 also establishes
additional disclosure requirements. SFAS No. 159 is
effective for fiscal years beginning after November 15,2007, with early adoption permitted provided that the entity
also adopts SFAS No. 157. We have elected not to adopt
this optional standard.
In December 2007, the FASB issued FASB Statement No. 141R,
“Business Combinations” (Statement 141R) and FASB
Statement No. 160, “Non-controlling Interests in
Consolidated Financial Statements — an amendment to
ARB No. 51” (Statement 160). Statements 141R and 160
require most identifiable assets, liabilities, non-controlling
interests, and goodwill acquired in a business combination to be
recorded at “full fair value” and require
non-controlling interests (previously referred to as minority
interests) to be reported as a component of equity, which
changes the accounting for transactions with non-controlling
interest holders. Both Statement 141R and Statement 160 are
effective for periods beginning on or after December 15,2008, and earlier adoption is prohibited. Statement 141R will be
applied to business combinations occurring after the effective
date. Statement 160 will be applied prospectively to all
non-controlling interests, including any that arose before the
effective date. We are currently evaluating the impact of the
adoption of Statement 141R and Statement 160 on our results of
operations and financial position.
C.
Research
and Development, Patents and Licenses, etc.
See “Item 4 — Business Overview —
Research and Development.”
D.
Trend
Information
Solar power is one of the most rapidly growing renewable energy
sources in the world today. The photovoltaic industry has
experienced significant growth over the past decade. Despite the
rapid growth, according to the International Energy
Agency’s estimates, solar energy constituted less than 0.4%
of the world’s total primary energy supply in 2004.
According to Photon International, global crystalline solar cell
or module production will increase from 2.3 gigawatts in 2006 to
17.9 gigawatts in 2011, representing a compound annual growth
rate of 50.7%.
Global
Annual Crystalline Silicon-Based Solar Cell/Module
Production
We believe the following factors will continue to drive the
global demand in the photovoltaic industry:
Rising Prices of Conventional Energy
Sources. According to The International Energy
Agency’s estimate, approximately 80% of the world’s
electricity in 2004 was generated from fossil fuels such as
coal, oil and natural gas. According to the United States
Department of Energy’s International Energy Outlook,
worldwide demand for electricity is projected to increase from
14.8 trillion kilowatt hours in 2003 to 30.1 trillion kilowatt
hours by 2030. The prices of conventional energy sources,
including oil, gas and coal, have been steadily increasing in
recent years. A more sustainable energy source is needed to
address price increases of conventional/fossil fuel energy
sources given the limited nature of fossil fuel supply and
escalating electricity consumption.
Government Incentives for Renewable Energy
Sources. Governments around the world are
implementing renewable energy policies to encourage the use of
clean and sustainable energy sources, such as solar energy that
does not consume any fuel and produces no pollution during
operation. Use of solar power has been growing at a fast pace in
countries where incentives are offered by their governments to
encourage its use. Countries such as Australia, China, Germany,
Japan, Republic of Korea, Spain and the United States have
offered or plan to offer substantial incentives in the form of
direct subsidies for solar power system installations or rebates
for electricity produced from solar power. Increasing government
support for solar energy in regions, such as California and
southern Europe, which receive many hours of sunlight and where
solar energy is more cost competitive, is also driving demand.
Tightening of Environmental Regulations. Solar
power is capable of generating electricity without producing
pollution such as gaseous or water emissions or noise during
operation. Governments around the world are adopting initiatives
aimed at addressing worldwide environmental concerns and climate
change risks associated with the use of fossil fuels. Problems
such as greenhouse gas emissions are being addressed by
initiatives such as the United Nations Kyoto Protocol and
many national and regional air pollution regulations.
Increasing Cost Competitiveness of Solar
Energy. According to Photon Consulting, the
average prices of solar cells and modules are expected to
decrease over the next few years as a result of improved
production technologies and manufacturers attaining economies of
scale. Accelerated aging tests have also shown that solar
modules can operate for 30 years or more years without the
need for major maintenance other than the cleaning of module
surfaces, making them inexpensive and reliable to operate. A
combination of these factors is increasing solar energy’s
cost competitiveness compared with conventional, as well as
other alternative energy sources.
Challenges
facing the solar power industry
Some of the key challenges faced by the solar power industry
include the following:
Possible Reduction or Elimination of Government Subsidies and
Incentives. The ongoing growth of the solar power
industry substantially relies on the availability and size of
government subsidies and economic incentives, such as capital
cost rebates, reduced tariffs, tax credits, net metering and
other incentives. Governments may eventually decide to reduce or
eliminate these subsidies and economic incentives. It remains a
challenge for the solar power industry to reach sufficient
efficiency and scale to be cost-effective in a non-subsidized
marketplace.
Need to Improve Cost Competitiveness Against Other Energy
Sources. The cost associated with solar power
system may render solar energy more expensive than traditional
fossil fuel generated electricity. Relatively high product costs
remain one of the impediments to growth in solar power usage.
Manufacturers must address this by improving the cost efficiency
of solar power systems through innovation and continuous
improvement of production techniques.
Supply Constraint of Polysilicon. According to
Solarbuzz, polysilicon is in short supply and total demand for
polysilicon exceeded production in 2007. Underlying demand will
outstrip supply through at least 2008 and likely 2010.
Insufficient supply of polysilicon may hinder the growth of the
solar power industry.
Need to Broaden Awareness and Acceptance of Solar Power
Usage. Growth in solar power usage has been
mostly limited to on-grid applications. Solar energy product
sales consist substantially of standard solar modules and
systems. Broader market awareness will be required in order to
tap the potential of the off-grid market.
Solar power systems generally comprise a multitude of solar
modules, which are made of multiple solar cells. There are two
main categories of solar cell technology entailing very
different production processes:
•
crystalline wafer-based production technology, and
•
thin-film production technology.
Crystalline wafer-based technologies accounted for approximately
92% of solar cells produced in 2006, according to Photon
International.
The crystalline silicon-based photovoltaic product manufacturing
value chain starts with the processing of quartz sands to
produce metallurgical-grade silicon. This material is further
purified to become semiconductor-grade or solar-grade virgin
polysilicon feedstock. Recyclable polysilicon raw materials,
which include tops and tails of discarded portions of
polysilicon ingots, pot scraps and broken polysilicon wafers
acquired from the semiconductor and solar power industries, may
also be used as feedstock.
In the most widely used crystalline silicon-based solar
manufacturing process, feedstock is melted in high temperature
furnaces and is then formed into ingots through a
crystallization process. Due to the significant increase in
virgin polysilicon prices, using less virgin polysilicon and
more recycled polysilicon raw materials to manufacture ingots
results in lower overall cost of raw materials. However, the use
of recyclable polysilicon raw materials increases the difficulty
of producing ingots with quality similar to those made from
virgin polysilicon. Ingots are cut into blocks and then sliced
into wafers using high precision techniques.
Wafers are manufactured into solar cells through a multiple step
manufacturing process that entails etching, doping, coating and
applying electrical contacts. Solar cells are then
interconnected and packaged to form solar modules, which
together with system components such as batteries and inverters,
are distributed to installers, systems integrators, service
providers or directly to end-users, for installation onto
on-grid or off-grid systems.
The following diagram illustrates the value chain for the
manufacture of photovoltaic products.
Polysilicon
industry
Polysilicon is a key material for the production of
semiconductor integrated circuits and solar cells. Based on
Photon Consulting, in 2006, polysilicon usage for semiconductors
and solar cells was approximately 45% and 55%, respectively.
Polysilicon consists of multiple small silicon crystals. It can
be as much as 99.9999999% pure, and can be formed by stripping
oxygen from sand. In the typical Siemens process, high-purity
silicon rods are exposed to TCS at 1,150°C. The TCS gas
then decomposes and deposits additional high-purity silicon onto
the rods, which gradually grows until the desired diameter has
been reached.
Driven by rapid market adoption of solar power generation and
the expansion of 300 mm wafer production, polysilicon
demand has expanded significantly, creating a shortage in
polysilicon supply. In response to rapidly increasing
polysilicon demand, polysilicon vendors are rapidly expanding
their capacity. Most of the leading polysilicon vendors, such as
Hemlock Semiconductor Corporation, Wacker and MEMC, are expected
to increase capacity starting in 2008; Tokuyama Corporation will
begin capacity expansion in 2009. In addition, numerous
companies, particularly in China, have announced their intention
to enter into polysilicon production. However, due to the long
duration required to construct polysilicon production plants and
the capital-intensive nature of the Industry, the shortage is
expected to persist in the near term. According to Photon
Consulting, polysilicon production is expected to increase from
65,000 metric tons in 2008 to 150,000 metric tons by
2011, a compound annual growth rate of 32.1%.
The tight polysilicon market has given suppliers considerable
leverage when negotiating supply agreements with potential
customers. Polysilicon suppliers are increasingly requiring
customers to enter into long-term agreements, most of which
require prepayments.
Solar
wafer industry
According to Photon International, sawn wafer technologies
accounted for approximately 97% of the crystalline wafer market
in 2006. These technologies apply to both monocrystalline and
multicrystalline wafers. Non-sawn wafer technologies consist
primarily of ribbon wafers and sheet wafers. For sawn wafer
technologies, polysilicon is converted into monocrystalline or
multicrystalline silicon wafers through an ingot producing and
slicing process. Sawn wafer cells convert between 13% and 22% of
the sunlight that they receive into electricity, with
monocrystalline-based cells generally achieving efficiencies at
the top of the range.
Multicrystalline wafers generally contain more impurities and
crystal defects which impede the flow of electrons as compared
to monocrystalline wafers, which are made from one single
crystal. Compared to monocrystalline wafers, multicrystalline
wafers are cheaper to produce and offer greater scope for
further technological development, such as increasing the size
of the ingot and reducing silicon waste and crystal defects.
According to Solarbuzz, multicrystalline wafer-based cell
production represented approximately 49% while monocrystalline
wafer-based cell production constituted approximately 42% of the
total photovoltaic market in 2006.
There are many players in the solar wafer market. Some of the
major wafer producers, such as Kyocera, REC, Deutsche Solar,
Trina Solar and Yingli, use a part or all of their wafer output
for the in-house production of solar cells. In additional,
various existing and new wafer manufacturers are expanding their
production capacity to meet the growing market demand. The main
barriers to entry for wafer manufacturing currently include
significant capital expenditures, access to high performance
manufacturing equipment, availability of polysilicon, solid
customer relationships with leading solar cell producers
worldwide and significant manufacturing experience required to
achieve optimal manufacturing efficiency. While current
polysilicon feedstock shortages enable wafer manufacturers to
reliably sell their output, relationships with the leading
established solar cell producers are critical to gaining
feedback on wafer performance and fine-tuning wafer production
to ensure a sustainable technological lead.
The key competitive attributes of solar wafers are conversion
efficiency, certain physical properties and the production cost.
These three factors ultimately contribute to a solar cell’s
cost per watt of electricity generation. The photovoltaic
industry’s main goal is to reduce the cost per watt of
solar electricity generation in order to increase solar
energy’s competitiveness. Often there exists a trade-off
between achieving high technical efficiency, or a high
conversion efficiency, and a high manufacturing efficiency, or
low production costs. Companies in the industry are striving to
improve the quality and efficiency of solar wafers through
improvements to their production processes.
Production costs of multicrystalline wafers can be reduced
through the creation of larger ingots and thinner wafers, as
well as the reduction of operational costs. Larger ingots reduce
the amount of consumables used per watt of product manufactured
and increase production yield. One crucible is used for each
ingot produced, regardless of its size. Producing a larger ingot
requires only a moderate increase in crucible materials and is
therefore less expensive than producing multiple, smaller
ingots. Additionally, larger ingots have less surface area per
unit volume of multicrystalline silicon produced, thus reducing
the potential for contamination with impurities. The wafer area
is the key factor in determining how much incident light can be
absorbed and converted into electricity. By manufacturing
thinner wafers, less polysilicon is required to capture the same
area of incident light. Location of the manufacturing plants in
countries with low labor and utility costs also reduces
operational costs.
See “— Operating Results” for information on
the significant recent trends in our sales and production.
E.
Off-balance
Sheet Arrangements
We have not entered into any financial guarantees or other
commitments to guarantee the payment obligations of third
parties. We have not entered into any derivative contracts that
are indexed to our shares and classified as shareholder’s
equity or that are not reflected in our consolidated financial
statements. Furthermore, we do not have any retained or
contingent interest in assets transferred to an unconsolidated
entity that serves as credit, liquidity or
market risk support to such entity. We do not have any variable
interest in any unconsolidated entity that provides financing,
liquidity, market risk or credit support to us or that engages
in leasing, hedging or research and development services with
us. There are no off-balance sheet arrangements that have or are
reasonably likely to have a current or future effect on our
financial condition, net sales or expenses, results of
operations, liquidity, capital expenditures or capital resources
that is material to you and other investors.
F.
Tabular
Disclosure of Contractual Obligations
The following table sets forth our contractual cash commitments
as of December 31, 2007. Amounts for debt obligations are
principal amounts only.
Non-cancelable purchase obligations — raw materials
170,721
43,320
46,600
40,601
40,200
— equipment
566,495
486,461
80,034
—
—
Total
$
1,040,317
$
805,643
$
142,894
$
46,263
$
45,517
As of December 31, 2007, our long-term debt obligations and
short-term debt obligations consisted of loans due to commercial
banks aggregating $25.1 million and $264.1 million,
respectively, and carried effective interest rates ranging from
6.894% to 8.731% and from 5.564% to 11.42%, respectively.
We have entered into substantial commitments for future
purchases of raw materials and equipment, including polysilicon
feedstock, wafer manufacturing equipment and polysilicon
production equipment. These commitments as of December 31,2007 amounted to approximately $737.2 million in total,
including approximately $529.8 million for 2008 and
approximately $126.6 million for 2009. Our actual purchases
of polysilicon feedstock, wafer manufacturing equipment and
polysilicon production equipment in the future may exceed these
amounts.
The $566.5 million of non-cancelable purchase obligations
relating to equipment in the above table included an aggregate
amount of $117.2 million in purchase obligations to HCT
Shaping for wafering wire saws and squarers to be delivered
during 2008 and 2009, and $278.6 million in purchase
obligations to GT Solar primarily for DSS furnaces to be
delivered in 2008 and 2009.
The following table sets forth information regarding our
directors and executive officers as of the date of this report.
Directors and Executive Officers
Age
Position
Xiaofeng Peng
32
Chairman and Chief Executive Officer
Xingxue Tong
43
Director, President and Chief Operating Officer
Liangbao Zhu
41
Director and Senior Vice President
Yonggang Shao
43
Director and Senior Vice President
Gang Wang
39
Non-executive Director
Louis T. Hsieh
43
Independent Director
Bing Xiang
45
Independent Director
Junwu Liang
74
Independent Director
Jack Lai
54
Executive Vice President, Chief Financial Officer and Secretary
Nicola Sarno
55
Senior Vice President of Manufacturing
Yuepeng Wan
42
Chief Technology Officer
Rongqiang Cui
66
Head of Shanghai Jiaotong University LDK Laboratory
Pietro Rossettog
57
Chief Wafer Engineer
Qiqiang Yao
35
Vice President of Finance
Directors
Xiaofeng Peng is the chairman of our board of directors
and the chief executive officer of our company. He founded our
company in July 2005. Prior to founding our company,
Mr. Peng founded Suzhou Liouxin in March 1997 and was its
chief executive officer until February 2006. Suzhou Liouxin is a
leading manufacturer of personal protective equipment in Asia.
Mr. Peng graduated from Jiangxi Foreign Trade School in
1993 with a diploma in international business and from Beijing
University Guanghua School of Management with an executive MBA
degree in 2002. Mr. Peng, in his personal capacity, and his
family members are considering and may invest or otherwise
participate in several alternative energy projects, including
projects involving thin-film solar technology, solar thermal,
wind energy and biofuels.
Xingxue Tong is a director and the president and chief
operating officer of our company. He joined our company in
January 2007. Mr. Tong has over 10 years of experience
in managing operations of companies in the solar industry. Prior
to joining our company, Mr. Tong served as general manager
for south-east Asia business development with GT Solar since
2004. He was the executive president of commerce of CSI in 2004
and vice general manager of an affiliate of Tianwei Yingli from
1999 to 2004. Mr. Tong received a diploma in industrial
economic management from Renmin University of China in 1988 and
a diploma in English from Hebei University in 1998.
Liangbao Zhu is a director and a senior vice president of
operations of our company. He joined our company in November
2005. Dr. Zhu has over 15 years of experience in
managing operations of manufacturing enterprises and managing
marketing and sales operations in China and overseas. Prior to
joining our company, Dr. Zhu held multiple management
positions in manufacturing, investment and trading companies in
China and overseas from 1993 to 2005. Dr. Zhu graduated
from Yangzhou Normal College with a bachelor’s degree in
1982, from Suzhou University with an MBA degree in 2002 and a
doctor’s degree in business management in 2005.
Yonggang Shao is a director and a senior vice president
of corporate strategy of our company. He joined our company in
February 2006. Prior to joining our company, Mr. Shao
served as a managing director in the corporate finance
department of Guotai Junan Securities Company Limited and its
predecessors from 1998 to 2006. Mr. Shao
graduated from Shanghai University in 1990 with a
bachelor’s degree in industrial management and from Beijing
University Guanghua School of Management with an executive MBA
degree in 2002.
Gang Wang is a non-executive director of our company. He
became our non-executive director in July 2006. Mr. Wang
has, since 2002, been a director and chief representative in
China of Natixis Private Equity Asia Limited, beneficially
wholly owned by Natixis Banques Populaires. Mr. Wang held
various senior financial management positions in a number of
technology and manufacturing companies from 1999 to 2002 in New
Zealand and China. Mr. Wang received his bachelor’s
degree in mechanical engineering from the Hefei University of
Technology of China in 1989 and an MBA degree from the Massey
University in New Zealand in 1995.
Louis T. Hsieh became an independent director of our
company on May 31, 2007. Mr. Hsieh has been the chief
financial officer and a member of the board of directors of New
Oriental Education & Technology Group, a company
listed on the New York Stock Exchange, since 2005, a member of
the board of directors of Perfect World Co., Ltd., a company
listed on the Nasdaq Global Market, since 2007, and a member of
the board of directors of China Digital TV Holding Co., Ltd., a
company listed on the New York Stock Exchange, since 2007.
Mr. Hsieh was the chief financial officer of ARIO Data
Networks, Inc. in San Jose, California, from April 2004
until he joined New Oriental Education & Technology
Group. Prior to that, Mr. Hsieh was a managing director for
the private equity firm of Darby Asia Investors (HK) Limited
from 2002 to 2003. From 2000 to 2002, Mr. Hsieh was
managing director and Asia-Pacific tech/media/telecoms head of
UBS Capital Asia Pacific, the private equity division of UBS AG.
From 1997 to 2000 Mr. Hsieh was a technology investment
banker at JPMorgan in San Francisco, California, where he
was a vice president, and Credit Suisse First Boston in Palo
Alto, California, where he was an associate. From 1990 to 1996,
Mr. Hsieh was a corporate and securities attorney at
White & Case LLP in Los Angeles and is a member of the
California bar. Mr. Hsieh holds a B.S. degree in
engineering from Stanford University, an MBA degree from the
Harvard Business School, and a J.D. degree from the University
of California at Berkeley.
Bing Xiang became an independent director of our company
in July 2007. Professor Xiang has been a member of the board of
directors of Perfect World Co., Ltd., a company listed on the
Nasdaq Global Market, since 2007. Professor Xiang is the Dean
and a professor at Cheung Kong Graduate School of Business in
Beijing, China since 2002. Prior to that, he held various
positions as a professor of accounting at Peking University, The
Chinese University of Hong Kong and China Europe International
Business School. Professor Xiang received his bachelor’s
degree in engineering from Xi’an Jiaotong University in
China and his Ph.D. in business administration from the
University of Alberta in Canada.
Dr. Junwu Liang became an independent director of
our company in March 2008. Dr. Liang is a professor at the
Chinese Academy of Engineering, Beijing, China. From 1993 to
2005, Dr. Liang served as Chairman of the Institute of
Electronic Materials. He was previously a faculty member in the
Institute of Semiconductors at the Chinese Academy of Sciences,
Beijing, China. Prior to that, he worked on the design and
fabrication of integrated circuit devices at the Yichang
Semiconductor Factory in Yichang City, Hubei Province, China. He
has published extensively in the areas of semiconductor
materials fabrication and silicon characterization. He holds
nine patents and is the recipient of numerous science and
technology prizes in China. He received his bachelor’s
degree in engineering from Wuhan University in 1955 and his
Ph.D. in material science from the Institute of Metallurgy at
the Academy of Sciences of formerly USSR.
Executive
Officers
Jack Lai is an executive vice president, chief financial
officer and secretary of our company. He joined our company in
August 2006. Mr. Lai has over 20 years of experience
in finance, strategic planning and corporate management. Prior
to joining our company, Mr. Lai served as the chief
financial officer and vice president of Silicon Storage
Technology, Inc. He was the vice president of finance and
administration and the chief financial officer of Aplus Flash
Technology, Inc. in San Jose, California from 2000 to 2003.
He served as vice president of finance and administration, chief
financial officer and general manager of Wirex Corporation, Inc.
in Portland, Oregon, from 1998 to 2000. Mr. Lai graduated
from Tamkang University with a bachelor’s degree in
business administration in 1976, from Chinese Culture University
with an MBA degree in 1978 and from San Jose State
University with an MBA degree in 1982.
Nicola Sarno is the senior vice president of
manufacturing of our company. He joined our company in April
2006. Mr. Sarno has over 20 years of experience in
silicon manufacturing, having held multiple positions in the
areas of production, process engineering and strategic material
supply globally. He was a manufacturing director, engineering
manager of crystal growing and operations/strategic materials
manager of MEMC from 1985 to 2002 and a production manager of
S.E.H. America, Inc. from 1981 to 1985. Mr. Sarno received
a diploma in mechanical engineering from Mander College in 1971.
Yuepeng Wan is the chief technology officer of our
company. He joined our company in February 2007. Dr. Wan
has over 15 years of experience in research and development
in silicon and materials engineering. Prior to joining our
company, Dr. Wan was a research and development manager at
GT Solar in New Hampshire from October 2005 to February 2007 in
charge of DSS furnace research and development. Prior to that,
he was a research associate of the materials crystal division at
Saint-Gobain Northboro R&D Center in Massachusetts from
January 2005 to October 2005. From April 2000 to January 2005,
he was a senior applications engineer at GT Solar in New
Hampshire responsible for design and development of crystal
growth furnaces. Dr. Wan received a bachelor of science
degree in materials engineering from University of
Science & Technology of China in 1986, a master of
science degree in mechanical engineering from University of
Science & Technology of China in 1989 and a Ph.D.
degree in mechanical engineering from Aachen University of
Technology of Germany in 1997.
Rongqiang Cui is the head of our research and development
laboratory operated jointly with Shanghai Jiaotong University.
He is also a professor at Shanghai Jiaotong University.
Professor Cui joined our company in September 2005 as director
of our Shanghai Jiaotong University LDK Laboratory. Professor
Cui began solar energy research in 1971 and became the head of
the solar research institute of Shanghai Jiaotong University in
1997. Previously, he was an assistant tutor, lecturer and
professor in the physics department of Xian Jiaotong University
from 1964 to 1996. Professor Cui graduated from the Xian
Jiaotong University in 1964 with a diploma in engineering
physics.
Pietro Rossetto is the chief wafer engineer of our
company. He joined our company in June 2006. Prior to joining
our company, Mr. Rossetto taught electrical engineering and
computer science in Meran, Italy, from 2003 to 2005. He held
multiple positions from 1976 to 2002 at MEMC, including as
manager and senior manager for single crystal technology and as
manager for various special projects. Mr. Rossetto received
his college degree in physics from University of Milan Institute
of Physical Science in 1975.
Qiqiang Yao is a vice president of finance of our
company. He joined our company in February 2006. Prior to
joining our company, Mr. Yao held multiple positions in
finance and accounting from 2002 to 2006 at various companies in
China. Mr. Yao received a bachelor’s degree in
accounting from Anhui University of Accounting in 1993 and an
MBA from China Southeast University in 2003. Mr. Yao is a
registered accountant in China.
B.
Compensation
of Directors and Officers
Compensation
of Directors and Executive Officers
All directors receive reimbursements from us for expenses
necessarily and reasonably incurred by them for providing
services to us or in the performance of their duties. Our
directors who are also our employees receive compensation in the
form of salaries, housing allowances, other allowances and
benefits in kind in their capacity as our employees.
Each of our directors is entitled to a discretionary bonus as
determined by the compensation committee of our board of
directors provided that the total amount of bonuses payable to
all of our directors for such year shall not exceed 5% of our
audited consolidated profit after taxation and minority
interests but before extraordinary items (if any) for the
relevant year. In 2005, the aggregate cash compensation and
benefits that we paid to our directors and executive officers
for the period from July 5 to December 31, 2005 was
approximately $3,000. We did not make any contribution to the
pension schemes in respect of our directors for the period from
July 5 to December 31, 2005. Under our current
arrangements, the aggregate remuneration and benefits in kind
which our directors and executive officers received for the
years ended December 31, 2006 and 2007 were approximately
$552,000 and $2,047,000, respectively, excluding any
discretionary bonuses, which may be paid to our directors and
executive officers, and share-based compensation. No executive
officer is entitled to any severance benefits upon termination
of his or her employment with our company.
You may find more details of the stock options we have granted
to our directors and executive officers pursuant to our 2006
stock incentive plan under “— Share
Ownership” below.
Indemnification
Cayman Islands law does not limit the extent to which a
company’s articles of association may provide for
indemnification of officers and directors, except to the extent
any such provision may be held by the Cayman Islands courts to
be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime.
Pursuant to our memorandum and articles of association, our
directors and officers, as well as any liquidator or trustee for
the time being acting in relation to our affairs, will be
indemnified and held harmless out of our assets and profits from
and against all actions, costs, charges, losses, damages and
expenses that any of them or any of their heirs, executors or
administrators may incur or sustain by reason of any act done,
concurred in or omitted in or about the execution of their
duties in their respective offices or trusts. Accordingly, none
of these indemnified persons will be answerable for the acts,
receipts, neglects or defaults of each other; neither will they
be answerable for joining in any receipts for the sake of
conformity, or for any bankers or other persons with whom any
moneys or effects belonging to us may have been lodged or
deposited for safe custody, or for insufficiency or deficiency
of any security upon which any monies of or belonging to us may
be placed out on or invested, or for any other loss, misfortune
or damage which may happen in the execution of their respective
offices or trusts. This indemnity will not, however, extend to
any fraud or dishonesty which may attach to any of said persons.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling us pursuant to the foregoing provisions, we
have been informed that in the opinion of the Securities and
Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
Employment
Agreements
Officers are selected by and serve at the discretion of our
board of directors. Each executive officer has entered into an
employment agreement with us for an initial term of one year,
which will be automatically renewed for successive one-year
terms until terminated by either party with three months’
notice in writing to the other party.
C.
Board
Practice
Our board of directors is currently comprised of eight
directors, including three independent board members. A director
is not required to hold any shares in our company by way of
qualification. A director may vote with respect to any contract,
proposed contract or arrangement in which he or she has a
material interest provided that a declaration of interest has
been made in accordance with our articles of association and
such director is not required to abstain from voting and/or be
excluded from the counting of the quorum under our articles of
association. Any director may exercise all the powers of our
company to borrow money, mortgage its undertaking, property and
uncalled capital, and subject to the Cayman Companies Law, issue
debentures or other securities whenever money is borrowed or as
security for any obligation of our company or of any third
party. We have established three committees of the board of
directors:
•
the audit committee,
•
the compensation committee, and
•
the corporate governance and nominating committee.
We have adopted a charter for each committee to comply with the
Sarbanes-Oxley Act and New York Stock Exchange corporate
governance rules. Each committee’s members and functions
are described below.
We have a staggered board of directors. Our directors will be
divided into three classes, as nearly equal in number as the
then total number of directors permits. Yonggang Shao and
Liangbao Zhu have been designated as Class I directors for
a one-year term to expire at our shareholders’ general
meeting in 2008, Xingxue Tong and Gang Wang and Bing Xiang as
Class II directors for a two-year term to expire at our
shareholders’ general meeting in 2009. and Xiaofeng Peng,
Louis T. Hsieh and Junwu Liang as Class III directors for a
three-year term to expire at
our shareholders’ general meeting in 2010. At each
succeeding annual general meeting of shareholders beginning in
2008, successors to the class of directors whose terms expire at
that meeting shall be elected for a three-year term. If the
number of directors changes, any increase or decrease will be
apportioned among the classes so as to maintain the number of
directors in each class as nearly as possible. Any additional
directors of a class elected to fill a vacancy resulting from an
increase in such class will hold office for a term that
coincides with the remaining term of that class. Decrease in the
number of directors will not shorten the term of any incumbent
director. Nonetheless, whenever the holders of preferred shares
have the right, voting separately as a class, to elect
directors, the election, term of office, filling of vacancies
and other features of directorships will be governed by the
applicable terms of our articles of association and the rights
attaching to those preferred shares. These board provisions make
it more difficult for third parties to gain control of our
company because it is more difficult to replace members of a
staggered board.
Audit
committee
Our audit committee consists of three directors, namely Louis T.
Hsieh, Bing Xiang and Dr. Junwu Liang. Mr. Hsieh,
Mr. Xiang and Dr. Liang satisfy the
“independence” requirements of the New York Stock
Exchange Listing Rules and the Securities and Exchange
Commission regulations. In addition, our board of directors has
determined that Mr. Hsieh and Mr. Xiang are qualified
as audit committee financial experts within the meaning of
Securities and Exchange Commission regulations. The audit
committee oversees our accounting and financial reporting
processes and the audits of the financial statements of our
company. The audit committee is responsible for, among other
things:
•
selecting the independent auditors and pre-approving all
auditing and non-auditing services permitted to be performed by
the independent auditors;
•
reviewing and approving all proposed related-party transactions;
•
discussing the annual audited financial statements and interim
financial statements with management and the independent
auditors;
•
annually reviewing and reassessing the adequacy of our audit
committee charter;
•
meeting separately and periodically with management and the
independent auditors;
•
such other matters that are specifically delegated to our audit
committee by our board of directors from time to time; and
•
reporting regularly to the full board of directors.
Compensation
committee
Our compensation committee consists of Xiaofeng Peng, Louis T.
Hsieh, Bing Xiang and Junwu Liang. Mr. Hsieh,
Mr. Xiang and Prof. Liang satisfy the
“independence” requirements of the New York Stock
Exchange Listing Rules and the Securities and Exchange
Commission regulations. Our compensation committee assists the
board in reviewing and approving the compensation structure of
our directors and executive officers, including all forms of
compensation to be provided to our directors and executive
officers. The compensation committee is responsible for, among
other things:
•
reviewing and determining the compensation package for our
senior executives;
•
reviewing and making recommendations to the board with respect
to the compensation of our directors;
•
reviewing and approving officer and director indemnification and
insurance matters;
•
reviewing periodically and approving any long-term incentive
compensation or equity plans, programs or similar arrangements,
annual bonuses, employee pension and welfare benefit
plans; and
•
reporting regularly to the full board of directors.
Our corporate governance and nominating committee consists of
Xiaofeng Peng, Louis T. Hsieh, Bing Xiang and Dr. Junwu
Liang. Mr. Hsieh, Mr. Xiang and Dr. Liang satisfy
the “independence” requirements of the New York Stock
Exchange Listing Rules and the Securities and Exchange
Commission regulations. The corporate governance and nominating
committee assists the board of directors in identifying
individuals qualified to become our directors and in determining
the composition of the board and its committees. The corporate
governance and nominating committee is responsible for, among
other things:
•
identifying and recommending to the board nominees for election
or re-election to the board;
•
appointment to fill any vacancy;
•
reviewing annually with the board the current composition of the
board in light of the characteristics of independence, age,
skills, experience and availability of service to us;
•
identifying and recommending to the board the directors to serve
as members of the board’s committees;
•
advising the board periodically with respect to significant
developments in the law and practice of corporate governance as
well as our compliance with applicable laws and regulations, and
making recommendations to the board on all matters of corporate
governance and on any corrective action to be taken;
•
monitoring compliance with our code of business conduct and
ethics, including reviewing the adequacy and effectiveness of
our procedures to ensure proper compliance; and
•
reporting regularly to the full board of directors.
Duties of
Directors
Under Cayman Islands law, our directors have a common law duty
of loyalty to act honestly in good faith with a view to our best
interests. Our directors also have a duty to exercise the skill
they actually possess and such care and diligence that a
reasonably prudent person would exercise in comparable
circumstances. In fulfilling their duty of care to us, our
directors must ensure compliance with our memorandum and
articles of association. A shareholder has the right to seek
damages if a duty owed by our directors is breached.
D.
Employees
As of December 31, 2007, we had an aggregate of
6,253 full-time employees. Of these employees, 6,246 were
located at our headquarters and manufacturing plants in Xinyu
city, Jiangxi province, China, and three were located in our
branch office in Shanghai, China. Compared to December 31,2006, we added 4,875 employees to our workforce during
2007, including 4,207 new employees for our manufacturing
operations. We established our second materials sorting
department and third manufacturing department during the three
months ended March 31, 2007. These new departments employed
approximately 1,068 and 698 employees, respectively, as of
December 31, 2007.
A breakdown of our employees by areas of operations and as a
percentage of our workforce as of December 31, 2007 is set
forth below:
Number of
Percentage of
Employees
Total
Manufacturing
5,238
83.8
%
Quality control
343
5.5
Research, development and engineering
94
1.5
Administration
377
6.0
Production planning
128
2.1
Finance
40
0.6
Procurement
33
0.5
Total
6,253
100.0
%
From time to time, we also employ part-time or contract
employees, as required, to meet any increased demand for our
products. We plan to hire additional employees as we expand.
As required by PRC regulations, we participate in statutory
retirement plans organized by the respective PRC local
governments. We currently contribute 29% of the staff’s
basic salaries to such funds. Our contributions to the statutory
retirement plans are charged to the consolidated profit and loss
account as and when incurred. We also provide our employees with
medical insurance and unemployment insurance as required by the
PRC laws and regulations. For the years ended December 31,2006 and 2007, our total expense under the statutory employee
benefit plans was approximately $220,000 and $614,000,
respectively.
We have not experienced any significant difficulties in
recruiting employees nor have we had any significant labor
disputes. We consider our relationship with our employees to be
good.
We enter into employment contracts with all of our officers,
managers and employees, which contain a non-compete clause both
for the period of their employment with our company and for two
to three years thereafter.
E.
Share
Ownership
2006
Stock Incentive Plan
We adopted our 2006 stock incentive plan on July 31, 2006.
The purpose of our 2006 stock incentive plan is to recognize and
acknowledge the contributions the eligible participants made to
our company and to promote the success of our business. Through
the provision of an opportunity to have a personal stake in our
company, our 2006 stock incentive plan aims to:
•
motivate the eligible participants to optimize their performance
efficiency for the benefit of our company;
•
attract and retain the best available personnel in our industry
through additional incentive to our employees and
directors; and
•
attract and otherwise maintain our on-going business
relationship with consultants and business entities whose
contributions are or will be beneficial to our long-term growth.
Eligible
participants
Under our 2006 stock incentive plan, our board of directors may,
at its discretion, offer to grant an option to subscribe for
such number of our ordinary shares at an exercise price as our
directors may determine to:
•
any full-time or part-time employees, executives or officers of
our company or any of our subsidiaries;
•
any directors, including non-executive directors and independent
non-executive directors, of our company or any of our
subsidiaries;
•
any advisers, consultants and agents to us or any of our
subsidiaries; and
such other persons who, in the sole opinion of our board of
directors, will contribute or have contributed to our
development and operations.
Maximum
number of shares
The maximum number of ordinary shares in respect of which
options may be granted (including ordinary shares in respect of
which options, whether exercised or still outstanding, have
already been granted) under our 2006 stock incentive plan may
not in the aggregate exceed 10% of the total number of ordinary
shares in issue from time to time, including ordinary shares
issuable upon conversion of any of our preferred shares and in
issue from time to time. As of the date of this report, the
maximum number of ordinary shares in respect of which we may
grant options (including ordinary shares in respect of which
options, whether exercised or still outstanding, have already
been granted) under our 2006 stock incentive plan is
10,647,803 ordinary shares.
Price
of shares
Our board of directors may, in its discretion, determine the
subscription price of an ordinary share in respect of any
particular option granted under our 2006 stock incentive plan.
However, such determination by our board of directors of the
subscription price will generally be by reference to the fair
market value of the ordinary shares. If there exists a public
market for our ordinary shares, including our ADSs, the fair
market value of our ordinary shares will be the closing price
for the last market trading day prior to the time of the
determination on the stock exchange determined by our board of
directors to be the primary market for our ordinary shares or
ADSs. If there is no established market for our ordinary shares,
our board of directors will determine the fair market value of
our ordinary shares in good faith by reference to the placing
price of the latest private placement of our ordinary shares and
the development of our business operations since such latest
private placement.
Performance
criteria
Our 2006 stock incentive plan allows our board of directors to
establish the performance criteria when granting stock options
on the basis of any one of, or combination of, increase in our
share price, earnings per share, total shareholder return,
return on equity, return on assets, return on investment, net
operating income, cash flow, revenue, economic value added,
personal management objectives, or other measures of performance
selected by our board of directors. Partial achievement of the
specified criteria may result in a vesting corresponding to the
degree of achievement as specified in the award agreement with
the relevant optionee.
Outstanding
options granted under our 2006 stock incentive
plan
The following table summarizes, as of the date of this report,
the outstanding options granted under our 2006 stock incentive
plan to several of our directors, executive officers and
investors and to other individuals as a group. Unless otherwise
noted, the options granted vest over a three-year period
beginning on the date of their respective grants.
Mr. Peng holds his stock
options through his wholly owned British Virgin Islands company,
LDK New Energy.
(2)
Mr. Tong holds his stock
options through his wholly owned British Virgin Islands company,
Superb Bright Limited.
(3)
Mr. Zhu holds his stock
options through his wholly owned British Virgin Islands company,
Feliz International Inc.
(4)
Mr. Shao holds his stock
options through his wholly owned British Virgin Islands company,
SM Future Investment Inc.
(5)
Mr. Wang holds his stock
options through his wholly owned British Virgin Islands company,
Sun Forever Limited.
(6)
Relates to options granted to
Mr. Lai in his capacity as consultant prior to his
employment at our company and in anticipation of his employment
at our company.
(7)
Mr. Yao holds his stock
options through his wholly owned British Virgin Islands company,
Qiqiang Investment Consulting Inc.
(8)
Vests on July 31, 2007.
Brilliant Ever Investments Limited and Boundless Future
Investment Limited are each a company organized and existing
under the laws of the British Virgin Islands and wholly owned by
Mr. Chen Lu. Brilliant Ever Investments Limited and
Boundless Future Investment Limited were each an investor in our
Series A preferred shares.
(9)
Each employee holds less than 1% of
our total outstanding voting securities.
*
These directors and executive
officers as a group, each beneficially owning less than 1% of
our outstanding ordinary shares, together hold stock options
exercisable for 1,474,000 ordinary shares.
Other than options granted to Xiaofeng Peng, Liangbao Zhu,
Yonggang Shao, Gang Wang, Louis T. Hsieh, Bing Xiang, Junwu
Liang, Boundless Future Investment Limited and Brilliant Ever
Investments Limited, the numbers of ordinary shares underlying
options granted, as described in the above table, are subject to
reduction by our board of directors on the basis of performance
of each relevant optionee.
ITEM 7.
MAJOR
SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A.
Major
Shareholders
The following table sets forth information regarding the
beneficial ownership of our ordinary shares as of
December 31, 2007, by each person known to us to own more
than 5.0% of our ordinary shares.
Beneficial ownership is determined in accordance with the rules
of the Securities and Exchange Commission and includes voting or
investment power with respect to the securities. Except as
indicated below, and subject to applicable community property
laws, the persons named in the table below have sole voting and
investment power with respect to all ordinary shares shown as
beneficially owned by them. A shareholder is also deemed to be,
as of any date, the beneficial owner of all securities that such
shareholder has the right to acquire within 60 days after that
date through (a) the exercise of any option, warrant or
right, (b) the conversion of a security, (c) power to
revoke a trust, discretionary account or similar arrangement, or
(d) the automatic termination of a trust, discretionary
account or similar arrangement.
Shares Beneficially
Owned
Name
Number
Percent
Xiaofeng Peng
75,500,000
70.67
%
Mr. Peng holds these ordinary shares through LDK New
Energy, his wholly owned British Virgin Islands company. We are
not aware of any arrangement that may, at a subsequent date,
result in a change of control of our company.
B.
Related
Party Transactions
We have engaged from time to time in various transactions with
related parties. We believe that we have conducted our
related-party transactions on terms comparable to, or more
favorable to us than, similar transactions we would enter into
with independent third parties. Upon completion of our IPO, our
related-party transactions have been and will continue to be
subject to the review and approval of the audit committee of our
board of directors. The charter of our audit committee as
adopted by our board of directors provides that we may not enter
into any related-party transaction unless and until it has been
approved by the audit committee.
Restructuring
Jiangxi LDK Solar was incorporated in China on July 5, 2005
by Suzhou Liouxin, a PRC company, and Liouxin Industrial
Limited, a Hong Kong company, each beneficially and wholly owned
by Mr. Peng, our founder, chairman and chief executive
officer. Suzhou Liouxin and Liouxin Industrial Limited owned
27.6% and 72.4%, respectively, of Jiangxi LDK Solar at the time
of its incorporation.
Mr. Peng incorporated LDK New Energy on April 27, 2006
as his wholly owned company under the laws of the British Virgin
Islands. LDK New Energy incorporated LDK Solar Co., Ltd. on
May 1, 2006 as its wholly owned subsidiary under the laws
of the Cayman Islands.
Upon approval of the relevant PRC government authorities, LDK
Solar Co., Ltd. acquired all of the equity interests in Jiangxi
LDK Solar from Suzhou Liouxin and Liouxin Industrial Limited on
July 10, 2006 for an aggregate consideration of $8,000,001.
Under a loan agreement dated September 22, 2005,
Mr. Peng granted a line of credit of up to
$24.2 million to Jiangxi LDK Solar at an interest rate as
published by the People’s Bank of China from time to time.
This loan was guaranteed by Suzhou Liouxin, Saiweng Technology
(Suzhou) Co., Ltd., and Jiangxi Liouxin Industry Co., Ltd., all
of which are controlled by Mr. Peng. The loan was repaid in
full in March 2008.
During the period from October to December 2005, Jiangxi LDK
Solar borrowed a cumulative amount of $16.1 million under
the line of credit and at the same time lent $5.5 million
to Saiweng Technology (Suzhou) Co., Ltd. In the first six months
of 2006, Jiangxi LDK Solar borrowed an additional
$8.1 million and repaid $5.4 million under this line
of credit. Among the repayment of $5.4 million, Jiangxi LDK
Solar paid $1.3 million to a third party at the instruction
of Mr. Peng and signed an agreement with Mr. Peng in
April 2006 to confirm and ratify that the payment of
$1.3 million constituted a repayment of the same amount it
owed Mr. Peng. In March 2006, Jiangxi LDK Solar signed an
agreement with Mr. Peng to use the $5.5 million it
lent to Saiweng Technology (Suzhou) Co., Ltd. to offset
$5.5 million of the amount it owed Mr. Peng under the
credit line. In December 2006, Jiangxi LDK Solar repaid the
outstanding balance of $13.4 million to Mr. Peng,
together with an accrued interest of $0.9 million.
Loan
from Jiangxi Liouxin Industry Co., Ltd.
Jiangxi LDK Solar borrowed $2.6 million from Jiangxi
Liouxin Industry Co., Ltd., a company controlled by
Mr. Peng, on August 12, 2006 for working capital
purposes. There was no written agreement, and the loan was
interest free. This loan was repaid in full in September 2006.
Loan
from Suzhou Liouxin
Under a loan agreement dated July 24, 2006, Jiangxi LDK
Solar borrowed $8.1 million from Suzhou Liouxin free of
interest. This loan was repaid in full in December 2006.
Entrusted
Loan from Jiangxi Liouxin Industry Co., Ltd.
Through Bank of China, Xinyu Branch, Jiangxi LDK Solar borrowed
$15.0 million from Jiangxi Liouxin Industry Co., Ltd. in
December 2006 through an entrusted loan agreement. The loan
carries an interest of 5.022% per year and was repaid in June
2007. Through Bank of China, Xinyu Branch, Jiangxi LDK Solar
borrowed $5.1 million from Jiangxi Liouxin Industry Co.,
Ltd. in December 2007 through an entrusted loan agreement. The
loan carries an interest of 5.832% per year and is due and
repayable in March 2008.
Under PRC law, a non-financial institution may not make any
interest-bearing loans directly to any company, and a company
may not borrow interest-bearing loans directly from a
non-financial institution. A non-financial institution may
deposit its funds with a PRC bank, however, for the purpose of
lending the funds to a designated corporate borrower as an
entrusted loan.
Land Use
Rights and Property Ownership
In connection with the commencement of operations by Jiangxi LDK
Solar, Jiangxi LDK Solar entered into an entrustment agreement
with Jiangxi Liouxin Industry Co., Ltd. in August 2005. Pursuant
to this agreement, Jiangxi Liouxin Industry Co., Ltd.
acquired land use rights to certain parcels of land that
constitute a part of our current site in the Xinyu Hi-Tech
Industrial Park and certain buildings on the land parcel.
Jiangxi LDK Solar paid $3.3 million for the land use rights
at their fair market value as assessed by Shanghai Orient Real
Estate Appraiser Co., Ltd., an independent valuer, and
$7.1 million for the completed buildings and $637,000 for
assets under construction, in each case at original cost.
Jiangxi LDK Solar prepaid $4.7 million in 2005 and paid
$6.4 million in 2006 for such purchases. Jiangxi LDK Solar
received legal title to the land use rights and the completed
buildings in 2006.
Suzhou Liouxin owned the leasehold interest in our branch office
in Shanghai prior to December 2007. We subleased it from
Suzhou Liouxin free of charge. Suzhou Liouxin paid $5,000
per month in rent for the premises.
Guarantees
As of March 31, 2008, an aggregate of $35.8 million of
our borrowings from commercial banks in China were secured by
guarantees from Mr. Peng or companies controlled by
Mr. Peng.
Stock
Option Grants
See “Item 6 — Share Ownership —
2006 Stock Incentive Plan” in this report.
Individual
Income Tax Withholding Obligation
See “Item 5 — A. Operating
Results — Individual Income Tax Withholding
Obligation” in this report.
C.
Interests
of Experts and Counsel
Not applicable.
ITEM 8.
FINANCIAL
INFORMATION
A.
Consolidated
Statements and Other Financial Information
See pages beginning on
page F-1
following Item 19.
Legal
Proceedings
See “Item 4 — Business Overview —
Legal and Administrative Proceedings. ”
Dividend
Distribution Policy
We have never declared or paid any dividends, nor do we
anticipate paying any cash dividends on our ordinary shares in
the foreseeable future. We currently intend to retain most, if
not all, of our available funds and any future earnings for use
in the operation and expansion of our business.
We are a holding company and our cash flow depends on dividends
from our principal operating subsidiaries, Jiangxi LDK Solar,
Jiangxi LDK PV Silicon and Jiangxi LDK Polysilicon, in China.
The ability of our subsidiaries in China to pay dividends to us
is subject to various restrictions, including legal restrictions
in China that permit payment of dividends only out of net income
determined in accordance with PRC accounting standards and
regulations. Under PRC laws, Jiangxi LDK Solar, Jiangxi LDK PV
Silicon and Jiangxi LDK Polysilicon, as wholly foreign-owned
enterprises in China, must allocate at least 10% of their
after-tax profit to their statutory general reserve funds until
the balance of the funds reaches 50% of their respective
registered capital. The subsidiaries also have discretion in
allocating their after-tax profit to their enterprise expansion
fund and employee welfare reserve funds. Funds in statutory
general reserve funds, enterprise expansion fund and employee
welfare reserve funds are not distributable as cash dividends.
Our board of directors has complete discretion as to whether we
will pay dividends in the future. Even if our board of directors
decides to pay dividends, the form, frequency and amount will
depend upon our future operations and earnings, capital
requirements and surplus, general financial condition,
contractual restrictions and other factors that our board of
directors may deem relevant.
The depositary has agreed to distribute any dividend we declare
and pay on our ordinary shares evidenced by ADSs to the holders
of our ADSs, subject to the terms of the deposit agreement, to
the same extent as holders of our ordinary shares, less its fees
and expenses payable under the deposit agreement and after
deduction of any applicable taxes. The depositary may send to
the holders of our ADSs anything else we distribute on deposited
securities by means it considers lawful and reasonably
practical. If it cannot make the distribution that way, the
depositary may decide to sell what we distribute and distribute
the net proceeds in the same way as it does with cash or hold
what we distribute if it cannot be sold. Cash dividends on our
ordinary shares, if any, will be paid in U.S. dollars.
B.
Significant
Changes
None.
ITEM 9.
THE
OFFER AND LISTING
Not applicable, except for Item 9.A.4 and Item 9.C.
We listed our ADSs on the New York Stock Exchange in June 2007.
For the period from June 1, 2007 to March 28, 2008,
the closing price of our ADSs on the New York Stock Exchange
ranged from US$20.43 to US$73.95 per ADS.
Set forth below, for the applicable periods indicated, are the
high and low closing prices per ADS as reported by the New York
Stock Exchange.
High
Low
2007 (from June 1)
Quarterly Highs and Lows
Second Quarter 2007
$32.20
$23.20
Third Quarter 2007
73.95
33.53
Fourth Quarter 2007
70.00
26.91
Monthly Highs and Lows
June 2007
32.20
23.20
July 2007
45.10
33.53
August 2007
51.56
37.05
September 2007
73.95
52.62
October 2007
68.53
35.73
November 2007
41.89
26.91
December 2007
70.00
32.30
2008
Monthly Highs and Lows
January 2008
49.37
33.91
February 2008
38.34
27.77
March 2008
$28.99
$20.43
On April 3, 2008, the last reported closing sale price of
our ADSs on the New York Stock Exchange was US$31.62 per ADS.
We are a Cayman Islands company and our affairs are governed by
our memorandum and articles of association and the Cayman
Companies Law, Cap. 22 (Law 3 of 1961 as consolidated
and revised) of the Cayman Islands.
As of the date of this report, our authorized share capital
consists of 499,580,000 ordinary shares, par value of $0.10
each, and 420,000 shares of such class or designation as
our board of directors may determine in accordance with our
articles of association, par value of $0.10 each. As of the date
of this report, an aggregate of 106,044,700 ordinary shares have
been issued and are outstanding.
The following are summaries of material provisions of our fourth
amended and restated memorandum and articles of association that
became effective upon consummation of our IPO in June 2007 and
the Cayman Companies Law insofar as they relate to our ordinary
shares.
Ordinary
Shares
All of our outstanding ordinary shares are fully paid and
non-assessable. We issue certificates representing our ordinary
shares in registered form. Our shareholders who are
non-residents of the Cayman Islands may freely hold and vote
their shares.
Meetings
Subject to the regulatory requirements applicable to us, we will
call an annual general meeting and any extraordinary general
meeting by not less than 10 clear days’ notice in
writing. Notice of every general meeting will be given to all of
our shareholders other than those that, under the provisions of
our fourth amended and restated articles of association or the
terms of issue of the ordinary shares they hold, are not
entitled to receive such notices from us, and also to our
directors and principal external auditors. Extraordinary general
meetings may be called only by the chairman of our board of
directors or a majority of our board of directors, and may not
be called by any other person.
Notwithstanding that a meeting is called by shorter notice than
that mentioned above, subject to applicable regulatory
requirements, the meeting will be deemed to have been duly
called, if it is so agreed (1) in the case of a meeting
called as an annual general meeting by all of our shareholders
entitled to attend and vote at the meeting; or (2) in the
case of any other meeting, by a majority in number of our
shareholders having the right to attend and vote at the meeting,
being a majority together holding not less than 95% in nominal
value of our issued shares giving that right.
Voting
rights
Each of our ordinary shares is entitled to one vote on all
matters upon which our ordinary shares are entitled to vote.
Voting at any meeting of our shareholders is by show of hands
unless (before or on the declaration of the result of the show
of hands or on withdrawal of any other demand for a poll) a poll
is demanded as described in our fourth amended and restated
articles of association. A poll may be demanded by:
•
the chairman of the meeting;
•
at least three shareholders present in person or, in the case of
a shareholder being a corporation, by its duly authorized
representative, or by proxy for the time being entitled to vote
at the meeting;
•
any shareholder or shareholders present in person or, in the
case of a shareholder being a corporation, by its duly
authorized representative, or by proxy and representing not less
than one-tenth of the total voting rights of all the
shareholders having the right to vote at the meeting; or
•
a shareholder or shareholders present in person or, in the case
of a shareholder being a corporation, by its duly authorized
representative, or by proxy and holding not less than one-tenth
of the issued share capital of our voting shares.
A quorum required for a meeting of our shareholders consists of
at least two shareholders holding at least one-third in nominal
value of our total issued voting shares present in person or by
proxy or, if a corporation or other non-natural person, by its
duly authorized representative.
An ordinary resolution to be passed by our shareholders requires
the affirmative vote of a simple majority of the votes attaching
to our ordinary shares cast in a general meeting, while a
special resolution requires the
affirmative vote of no less than two-thirds of the votes cast
attaching to our ordinary shares. A special resolution is
required for important matters such as a change of name or an
amendment to our fourth amended and restated memorandum or
fourth amended and restated articles of association. Holders of
our ordinary shares may effect certain changes by an ordinary
resolution, including alteration of the amount of our authorized
share capital, consolidation and division of all or any of our
share capital into shares of larger or smaller amount than our
existing share capital, and cancel any unissued shares.
If a recognized clearing house, depositary or its nominee is our
shareholder, it may authorize such person or persons as it
thinks fit to act as its representative(s) at any meeting or at
any meeting of any class of shareholders, provided that, if more
than one person is so authorized, the authorization shall
specify the number and class of shares in respect of which each
such person is so authorized. A person authorized pursuant
thereto is entitled to exercise the same powers on behalf of the
recognized clearing house, depositary or its nominee as if such
person was the registered holder of our shares held by that
clearing house, depositary or its nominee, including the right
to vote individually on a show of hands.
Protection
of minority shareholders
The Grand Court of the Cayman Islands may, on the application of
shareholders holding not less than one fifth of our shares in
issue, appoint one or more inspectors to examine our affairs and
to report thereon in a manner as the Grand Court shall direct.
Any shareholder may petition the Grand Court of the Cayman
Islands that may make a winding up order, if the court is of the
opinion that it is just and equitable that we should be wound up.
Claims against us by our shareholders must, as a general rule,
be based on the general laws of contract or tort applicable in
the Cayman Islands or their individual rights as shareholders as
established by our fourth amended and restated memorandum and
articles of association.
The Cayman Islands courts ordinarily would be expected to follow
English case law precedents which permit a minority shareholder
to commence a representative action against, or derivative
actions in our name to challenge (1) an act which is ultra
vires or illegal, (2) an act which constitutes a fraud
against the minority and the wrongdoers are themselves in
control of us, and (3) an irregularity in the passing of a
resolution which requires a qualified (or special) majority.
Dividends
Subject to the Cayman Companies Law, our board of directors may
from time to time declare dividends in any currency to be paid
to our shareholders. Dividends may be declared and paid out of
our profits, realized or unrealized, or from any reserve set
aside from profits which our directors determine is no longer
needed. Our board of directors may also declare and pay
dividends out of the share premium account or any other fund or
account that can be authorized for this purpose in accordance
with the Cayman Companies Law.
Except in so far as the rights attaching to, or the terms of
issue of, any share otherwise provides (1) all dividends
shall be declared and paid according to the amounts paid up on
the shares in respect of which the dividend is paid, but no
amount paid up on a share in advance of calls shall be treated
for this purpose as paid up on that share and (2) all
dividends shall be apportioned and paid pro rata according to
the amounts paid upon the shares during any portion or portions
of the period in respect of which the dividend is paid.
Our directors may also pay any dividend that is payable on any
shares semi-annually or on any other dates, whenever our
financial position, in the opinion of our directors, justifies
such payment. Our directors may deduct from any dividend or
bonus payable to any shareholder all sums of money (if any)
presently payable by such shareholder to us on account of calls,
installments or otherwise. No dividend or other money payable by
us on or in respect of any share will bear interest against us.
In respect of any dividend proposed to be paid or declared on
our share capital, our directors may resolve and direct that
(1) such dividend be satisfied wholly or in part in the
form of an allotment of shares credited as fully paid up,
provided that our members entitled thereto will be entitled to
elect to receive such dividend (or part thereof if our
board so determine) in cash in lieu of such allotment or
(2) the shareholders entitled to such dividend will be
entitled to elect to receive an allotment of shares credited as
fully paid up in lieu of the whole or such part of the dividend
as our board may think fit. We may also, on the recommendation
of our directors, resolve in respect of any particular dividend
that, notwithstanding the foregoing, it may be satisfied wholly
in the form of an allotment of shares credited as fully paid up
without offering any right of shareholders to elect to receive
such dividend in cash in lieu of such allotment.
Any dividend interest or other sum payable in cash to the holder
of shares may be paid by check or warrant sent by mail addressed
to the holder at his registered address, or addressed to such
person and at such addresses as the holder may direct. Every
check or warrant shall, unless the holder or joint holders
otherwise direct, be made payable to the order of the holder or,
in the case of joint holders, to the order of the holder whose
name stands first on the register in respect of such shares, and
shall be sent at his or their risk and payment of the check or
warrant by the bank on which it is drawn shall constitute a good
discharge to us.
All dividends or bonuses unclaimed for one year after having
been declared may be invested or otherwise made use of by our
board of directors for the benefit of us until claimed. Any
dividend or bonuses unclaimed after a period of six years from
the date of declaration of such dividend may be forfeited by our
board of directors and, if so forfeited, shall revert to us.
Whenever our directors or our shareholders in a general meeting
have resolved that a dividend be paid or declared, our directors
may further resolve that such dividend be satisfied wholly or in
part by the distribution of specific assets of any kind, and in
particular of paid up shares, debentures or warrants to
subscribe for our securities or securities of any other company.
Where any difficulty arises with regard to such distribution,
our directors may settle it as they think expedient. In
particular, our directors may issue certificates in respect of
fractions of Shares, ignore fractional entitlement or round the
same up or down, fix the value for distribution purposes of any
such specific assets, determine that cash payments shall be made
to any of our shareholders upon the footing of the value so
fixed in order to adjust the rights of the parties, vest any
such specific assets in trustees as may seem expedient to our
directors, and appoint any person to sign any requisite
instruments of transfer and other documents on behalf of a
person entitled to the dividend, which appointment shall be
effective and binding on our shareholders.
Transfer
of shares
Subject to the restrictions contained in our fourth amended and
restated articles of association, as more fully described below,
any of our shareholders may transfer all or any of his or her
ordinary shares by an instrument of transfer in the usual or
common form or by any other form approved by our board of
directors or in a form prescribed by a designated stock exchange.
Our board of directors may, in its absolute discretion, and
without giving any reason, decline to register a transfer of any
ordinary share which is not fully paid up or on which we have a
lien. Our directors may also decline to register any transfer of
any ordinary share unless:
•
the instrument of transfer is lodged with us, accompanied by the
relevant certificate for the ordinary shares and such other
evidence as our board of directors may reasonably require to
show the right of the transferor to make the transfer;
•
the instrument of transfer is in respect of only one class of
ordinary shares;
•
the instrument of transfer is properly stamped, if applicable;
•
in the case of a transfer to joint holders, the number of joint
holders to whom the ordinary share is to be transferred does not
exceed four; or
•
a fee of such maximum sum as a designated stock exchange may
determine to be payable, or such lesser sum as our board of
directors may from time to time require, is paid to us.
There is presently no legal requirement under Cayman Islands law
for instruments of transfer relating to our ordinary shares to
be stamped. In addition, our board of directors has no present
intention to charge any fee in connection with the registration
of a transfer of our ordinary shares.
If our directors refuse to register a transfer, they must,
within two months after the date on which the instrument of
transfer was lodged, send to each of the transferor and the
transferee notice of such refusal. The registration of transfers
may, upon prior notice given by advertisement in one or more
newspapers or by electronic means, be suspended and the register
closed at such times and for such periods as our board of
directors may from time to time determine, but we may not
suspend the registration of transfers nor close the register for
more than 30 days in any year.
Liquidation
Subject to any special rights, privileges or restrictions as to
the distribution of available surplus assets on liquidation for
the time being attached to any class or classes of shares
(i) if we are wound up and the assets available for
distribution among our shareholders are more than sufficient to
repay the whole of the capital paid up at the commencement of
the winding up, the excess shall be distributed pari passu among
those shareholders in proportion to the amount paid up at the
commencement of the winding up on the shares held by them,
respectively, and (ii) if we are wound up and the assets
available for distribution among the shareholders as such are
insufficient to repay the whole of the paid-up capital, those
assets shall be distributed so that, as nearly as may be, the
losses shall be borne by the shareholders in proportion to the
capital paid up at the commencement of the winding up on the
shares held by them, respectively.
If we are wound up (whether the liquidation is voluntary or by
the court), the liquidator may with the sanction of a special
resolution (requiring a majority of not less than two-thirds of
votes cast at a shareholders meeting) and any other sanction
required by the Cayman Companies Law, divide among our
shareholders in specie or kind the whole or any part of our
assets (whether they shall consist of property of the same kind
or not) and may, for such purpose, set such value as the
liquidator deems fair upon any property to be divided and may
determine how such division shall be carried out as between the
shareholders or different classes of shareholders. The
liquidator may also vest the whole or any part of these assets
in trustees upon such trusts for the benefit of the shareholders
as the liquidator shall think fit, but so that no shareholder
will be compelled to accept any assets, shares or other
securities upon which there is a liability.
Alteration
of capital
We may from time to time by ordinary resolution:
•
increase our capital by such sum, to be divided into shares of
such amounts, as the resolution shall prescribe;
•
consolidate and divide all or any of our share capital into
shares of larger amount than our existing shares;
•
cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person, and diminish the amount of its share capital by the
amount of the shares so cancelled;
•
sub-divide our shares or any of them into shares of smaller
amount than is fixed by our fourth amended and restated
memorandum of association, subject nevertheless to the Cayman
Companies Law, and so that the resolution whereby any share is
sub-divided may determine that, as between the holders of the
shares resulting from such subdivision, one or more of the
shares may have any such preference or other special rights,
over, or may have such deferred rights or be subject to any such
restrictions as compared with the others as we have power to
attach to unissued or new shares; and
•
divide shares into several classes and without prejudice to any
special rights previously conferred on the holders of existing
shares, attach to the shares respectively any preferential,
deferred, qualified or special rights, privileges, conditions or
such restrictions which in the absence of any such determination
in general meeting as the directors may determine.
We may, by special resolution (requiring a majority of not less
than three-quarters of votes cast at a shareholders meeting),
subject to any confirmation or consent required by the Cayman
Companies Law, reduce our share capital or any capital
redemption reserve in any manner authorized by law.
Our fourth amended and restated articles of association permit
us to issue our shares, including ordinary shares, nil paid and
partially paid provided that no share is issued at a discount.
This permits us to issue shares where the payment for such
shares has yet to be received. Although our fourth amended and
restated articles of association give us the flexibility to
issue nil paid and partly paid shares, our board of directors
has no present intention to do so. Our board of directors may
from time to time make calls upon shareholders for any amounts
unpaid on their shares in a notice served to such shareholders
at least 14 clear days prior to the specified time and
place of payment. The shares that have been called upon and
remain unpaid on the specified time are subject to forfeiture.
Redemption
of shares
Subject to the provisions of the Cayman Companies Law, the rules
of the designated stock exchange, our fourth amended and
restated memorandum and articles of association and any special
rights conferred on the holders of any shares or class of
shares, we may issue shares on terms that they are subject to
redemption at our option or at the option of the holders, on
such terms and in such manner as may be determined by our board
of directors. Our currently outstanding ordinary shares and
those to be issued in this offering will not be subject to
redemption at the option of the holders or our board of
directors.
Variations
of rights of shares
All or any of the special rights attached to any class of our
shares may, subject to the provisions of the Cayman Companies
Law, be varied with the sanction of a special resolution passed
at a general meeting of the holders of the shares of that class.
Inspection
of register of members
Pursuant to our fourth amended and restated articles of
association, our register of members and branch register of
members shall be open for inspection, unless the register is
closed in accordance with our fourth amended and restated
articles of association:
•
by shareholders for such times and on such days as our board of
directors may determine, without charge, at our registered
office or such other place where we keep our register in
accordance with the Cayman Companies Law, or
•
by any other person, upon a maximum payment of $2.50 or such
other sum specified by our board of directors, at our registered
office or such other place where we keep our register in
accordance with the Cayman Companies Law, or if appropriate,
upon a maximum payment of $1.00 or such other sum specified by
our board of directors at the registration office.
Designations
and classes of shares
All of our issued shares are ordinary shares. Our fourth amended
and restated articles of association provide that our authorized
unissued shares shall be at the disposal of our board of
directors, which may offer, allot, grant options over or
otherwise dispose of them to such persons, at such times and for
such consideration and upon such terms and conditions as our
board of directors may in its absolute discretion determine. In
particular, our board of directors is empowered to authorize
from time to time the issuance of one or more classes or series
of preferred shares and to fix their designations, powers, and
preferences, as well as their relative, participating, optional
and other rights, if any, and their qualifications, limitations
and restrictions, if any, including the number of shares
constituting each such class or series, dividend rights,
conversion rights, redemption privileges, voting powers, full or
limited or no voting powers, and liquidation preferences, and to
increase or decrease the size of any such class or series.
Anti-takeover
provisions
Cayman Islands law does not prevent companies from adopting a
wide range of defensive measures, such as staggered boards,
blank check preferred, removal of directors only for cause and
provisions that restrict the right of
shareholders to call meetings, act by written consent and submit
shareholder proposals. See “Item 3. Key
Information — D. Risk Factors — Risks
Relating to Our ADSs and Shares — Our articles of
association contain anti-takeover provisions that could have a
material adverse effect on the rights of our ordinary shares and
ADSs” in this report.
Share
repurchase
We are empowered by the Cayman Companies Law and our fourth
amended and restated articles of association to purchase our own
shares, subject to certain restrictions. Our directors may only
exercise this power on our behalf, subject to the Cayman
Companies Law, our fourth amended and restated memorandum and
articles of association and to any applicable requirements
imposed from time to time by the New York Stock Exchange, the
SEC or by any other recognized stock exchange on which our
securities may be listed.
Untraceable
shareholders
We are entitled to sell any shares of a shareholder who is
untraceable, provided that:
•
all checks or warrants in respect of dividends of such shares,
not being less than three in number, for any sums payable in
cash to the holder of such shares have remained uncashed for a
period of 12 years prior to the publication of the advertisement
and during the three months referred to in third bullet point
below;
•
we have not during that time received any indication of the
whereabouts or existence of the shareholder or person entitled
to such shares by death, bankruptcy or operation of law; and
•
we have caused an advertisement to be published in newspapers in
the manner stipulated by our amended and restated articles of
association, giving notice of our intention to sell these
shares, and a period of three months has elapsed since such
advertisement and the stock exchange on which we list has been
notified of such intention
The net proceeds of any such sale shall belong to us, and when
we receive these net proceeds we shall become indebted to the
former shareholder for an amount equal to such net proceeds.
History
of Securities Issuances
The following is a summary of the issuances of our securities
since our inception on May 1, 2006.
Ordinary
shares
In May 2006, we issued 100,000 ordinary shares at par value to
LDK New Energy, a British Virgin Islands company wholly owned by
Mr. Peng, for an aggregate consideration of $10,000.
In July 2006, we issued 74,900,000 ordinary shares at par value
to LDK New Energy, for an aggregate consideration of $7,490,000.
In June 2007, we issued 14,007,700 ordinary shares in our IPO
for an aggregate consideration of $378,207,900.
Series A
preferred shares
In July 2006, we issued an aggregate of 4,580,000 Series A
preferred shares for an aggregate consideration of $15,000,000.
These shares were converted into the same number of ordinary
shares in June 2007 upon completion of our IPO.
Series B
preferred shares
In September 2006, we issued an aggregate of 8,000,000
Series B preferred shares, convertible into 8,000,000
ordinary shares, for an aggregate consideration of $48,000,000.
These shares were converted into the same number of ordinary
shares in June 2007 upon completion of our IPO.
In December 2006, we issued an aggregate of 3,000,000
Series C preferred shares, convertible into 3,000,000
ordinary shares, for an aggregate consideration of $22,500,000.
These shares were converted into the same number of ordinary
shares in June 2007 upon completion of our IPO.
Differences
in Corporate Law
The Cayman Companies Law differs from laws applicable to
corporations established in jurisdictions in the United States
and to their shareholders. Set forth below is a summary of
significant differences between the provisions of the Cayman
Companies Law applicable to us and the laws applicable to
companies incorporated in jurisdictions in the United States and
their shareholders.
Mergers
and similar arrangements
The Cayman Islands law does not provide for mergers as that
expression is understood under United States corporate law.
However, there are statutory provisions that facilitate the
reconstruction and amalgamation of companies so long as the
arrangement is approved by:
•
a majority in number of each class of shareholders and
creditors, respectively, with whom the arrangement is to be
made, and
•
in addition, at least three-fourths in value of each such class
of shareholders and creditors, respectively,
that are present and voting either in person or by proxy at a
meeting, or meetings, convened for that purpose. The convening
of the meetings and the subsequent arrangement must be
sanctioned by the Grand Court of the Cayman Islands. While a
dissenting shareholder has the right to express to the court its
view that the transaction ought not to be approved, the court
can be expected to approve the arrangement if it determines that:
•
the company is not proposing to act illegally or beyond the
scope of its authority;
•
the statutory provisions as to majority vote have been complied
with;
•
the shareholders have been fairly represented at the meeting in
question;
•
the arrangement is such that a businessman would reasonably
approve; and
•
the arrangement is not one that would more properly be
sanctioned under some other provision of the Cayman Companies
Law or that would amount to a “fraud on the minority”
under the Cayman Islands law.
When a take-over offer is made and accepted by holders of 90% of
the shares within four months, the offerer may, within a
two-month period, require the holders of the remaining shares to
transfer such shares on the terms of the offer. An objection can
be made to the Grand Court of the Cayman Islands, but this is
unlikely to succeed unless there is evidence of fraud, bad faith
or collusion.
If the arrangement and reconstruction is so approved, the
dissenting shareholder would have no rights comparable to
appraisal rights, which would otherwise ordinarily be available
to dissenting shareholders of corporations incorporated under
jurisdictions of the United States, providing rights to receive
payment in cash for the judicially determined value of the
shares.
Shareholders’
suits
We are not aware of any reported class action having been
brought in a Cayman Islands court. Derivative actions have been
brought under Cayman Islands law but were unsuccessful for
technical reasons. In principle, we will normally be the proper
plaintiff and a derivative action may not be brought by a
minority shareholder. However, based on English authorities,
which would in all likelihood be of persuasive authority in the
Cayman Islands, exceptions to the foregoing principle apply in
circumstances in which:
•
a company is acting or proposing to act illegally or beyond the
scope of its authority;
the act complained of, although not beyond the scope of its
authority, could be effected duly if authorized by more than a
simple majority vote which has not been obtained; and
•
those who control the company are perpetrating a “fraud on
the minority” under the Cayman Islands law.
Incorporated by reference to our registration statement on
Form F-1
(Registration
No. 333-142881)
and for additional information on our material contracts, see
“Item 7 — Major Shareholders and Related
Party Transactions — Related Party Transactions”
and “Item 19 — Exhibits.”
D.
Exchange
Controls
See “Item 4 — Business Overview —
Regulatory Framework — Foreign Currency Exchange.”
E.
Taxation
Cayman
Islands Taxation
The Cayman Islands currently levies no taxes on individuals or
corporations based upon profits, income, gains or appreciation
and there is no taxation in the nature of inheritance tax or
estate duty. There are no other taxes likely to be material to
us levied by the Government of the Cayman Islands except for
stamp duties which may be applicable on instruments executed in,
or brought within, the jurisdiction of the Cayman Islands. The
Cayman Islands is not party to any double tax treaties. There
are no exchange control regulations or currency restrictions in
the Cayman Islands.
People’s
Republic of China Taxation
Under the former Income Tax Law for Enterprises with Foreign
Investment and Foreign Enterprises, any dividends payable by
foreign-invested enterprises to non-PRC investors were exempt
from any PRC withholding tax. In addition, any dividends
payable, or distributions made, by us to holders or beneficial
owners of our ADSs would not have been subject to any PRC tax,
provided that such holders or beneficial owners, including
individuals and enterprises, were not deemed to be PRC residents
under the PRC tax law and had not become subject to PRC tax.
On March 16, 2007, the National People’s Congress
approved and promulgated a new tax law named “Enterprise
Income Tax Law of the PRC,” or the EIT Law, which took
effect as of January 1, 2008. Under the EIT Law,
enterprises established under the laws of non-PRC jurisdictions
but whose “de facto management body” is located in
China are considered “resident enterprises” for PRC
tax purposes. Under the implementation regulations issued by the
State Council relating to the EIT Law, “de facto management
bodies” is defined as the bodies that have material and
overall management control over the business, personnel,
accounts and properties of an enterprise. Substantially all of
our management is currently based in China, and may remain in
China in the future. If we are treated as a “resident
enterprise” for PRC tax purposes, we will be subject to PRC
income tax on our worldwide income at a uniform tax rate of 25%.
In addition, the EIT Law provides that dividend income between
qualified “resident enterprises” is exempted from
income tax.
Moreover, the EIT Law provides that an income tax rate of 10% is
normally applicable to dividends payable to non-PRC investors
who are “non-resident enterprises,” to the extent such
dividends are derived from sources within China. We are a Cayman
Islands holding company and substantially all of our income is
derived from dividends we receive from our operating
subsidiaries located in China. Thus, dividends paid to us by our
subsidiaries in China may be subject to the 10% income tax if we
are considered as a “non-resident enterprise” under
the EIT Law.
Under the existing implementation regulations of the EIT Law,
dividends paid by us to our ADS holders should not be deemed to
be derived from sources within China under the EIT Law and
therefore should not be subject to the 10% income tax. However,
what will constitute income derived from sources within China is
currently unclear. In addition, gains on the disposition of
shares or ADSs should not be subject to PRC withholding tax.
However, these
conclusions are not entirely free from doubt. In addition, it is
possible that these rules may change in the future, possibly
with retroactive effect.
Certain
U.S. Federal Income Tax Considerations
The following is a general discussion of certain
U.S. federal tax consequences to U.S. Holders (defined
below) of the acquisition, ownership and disposition of the
ADSs. This summary applies only to U.S. Holders that hold
ADSs or ordinary shares as capital assets.
This discussion is based on the United States Internal Revenue
Code, or the Code, current and proposed U.S. Treasury
regulations, rulings and judicial decisions thereunder as of the
date hereof. All of the foregoing authorities are subject to
change, which change could apply retroactively and could affect
the tax consequences described below.
The following discussion does not deal with the tax consequences
to any particular investor or to persons in special tax
situations such as:
•
certain financial institutions;
•
insurance companies;
•
broker dealers;
•
U.S. expatriates;
•
traders that elect to mark-to-market;
•
tax-exempt entities;
•
persons liable for alternative minimum tax;
•
persons holding a note, ADS or ordinary share as part of a
straddle, hedging, conversion or integrated transaction;
•
persons whose functional currency is not the U.S. dollar;
•
persons that actually or constructively own 10% or more of our
voting stock; or
•
persons holding ADSs or ordinary shares through partnerships or
other entities treated as partnerships for U.S. federal
income tax purposes.
The discussion below of the U.S. federal income tax
consequences to “U.S. Holders” will apply if you
are a beneficial owner of ADSs or ordinary shares and you are,
for U.S. federal income tax purposes,
•
a citizen or resident of the United States;
•
a corporation (or other entity taxable as a corporation for
U.S. federal income tax purposes) organized under the laws
of the United States, any state in the United States or the
District of Columbia;
•
an estate whose income is subject to U.S. federal income
taxation regardless of its source; or
•
a trust that (1) is subject to the primary supervision of a
court within the United States and one or more U.S. persons
have the authority to control all substantial decisions of the
trust or (2) was in existence on August 20, 1996, was
treated as a U.S. person under the Internal Revenue Code on
the previous day and has a valid election in effect under
applicable U.S. Treasury regulations to be treated as a
U.S. person.
If you are a partner in a partnership or other entity taxable as
a partnership that holds ADSs or ordinary shares, your tax
treatment generally will depend on your status and the
activities of the partnership. If you are a partner or a
partnership holding ADSs or ordinary shares, you should consult
your own tax advisors.
This discussion does not contain a detailed description of all
the U.S. federal income tax consequences to you in light of
your particular circumstances and does not address the effects
of any state, local or
non-U.S. tax
laws.
The U.S. Treasury has expressed concerns that parties to
whom ADSs are pre-released may be taking actions that are
inconsistent with the claiming of foreign tax credits for United
States holders of ADSs. Such actions would also be inconsistent
with the claiming of the reduced rate of tax, described below,
applicable to dividends received by certain non-corporate
holders. Accordingly, the analysis of the creditability of any
foreign taxes and the availability of the reduced tax rate for
dividends received by certain non-corporate holders, each
described below, could be affected by actions taken by parties
to whom the ADSs are pre-released.
The discussion below assumes that the representations contained
in the deposit agreement are true and that the obligations in
the deposit agreement and any related agreement will be complied
with in accordance with their terms. If you hold ADSs, you
should be treated as the holder of the underlying ordinary
shares represented by those ADSs for U.S. federal income
tax purposes. Exchanges of ordinary shares for ADSs and ADSs for
ordinary shares generally will not be subject to
U.S. federal income tax.
Taxation
of Dividends and Other Distributions on the ADSs or Ordinary
Shares
Subject to the passive foreign investment company, or PFIC,
rules discussed below, the gross amount of any distribution
(including constructive dividends and the amount of PRC tax
withheld, if any) to you with respect to the ADSs or ordinary
shares generally will be included in your gross income as
dividend income on the date of actual or constructive receipt by
the depositary, in the case of ADSs, or by you, in the case of
ordinary shares, but only to the extent that the distribution is
paid out of our current or accumulated earnings and profits (as
determined under U.S. federal income tax principles). The
dividends will not be eligible for the dividends-received
deduction allowed to corporations in respect of dividends
received from other U.S. corporations.
With respect to certain non-corporate U.S. Holders,
including individual U.S. Holders, for taxable years
beginning before January 1, 2011, dividends may constitute
“qualified dividend income” and be taxed at the lower
applicable capital gains rate, provided that (1) the ADSs
or ordinary shares are readily tradable on an established
securities market in the United States, (2) we are not a
PFIC (as discussed below) for either our taxable year in which
the dividend was paid or the preceding taxable year, and
(3) certain holding period requirements are met. Under
Internal Revenue Service authority, the ADSs are considered for
the purpose of clause (1) above to be readily tradable on
an established securities market in the United States because
they are listed on the New York Stock Exchange. You should
consult your tax advisors regarding the availability of the
lower rate for dividends paid with respect to our ADSs or
ordinary shares.
Dividends will constitute foreign source income for
U.S. foreign tax credit limitation purposes. If the
dividends are qualified dividend income (as discussed above),
the amount of the dividend taken into account for purposes of
calculating the U.S. foreign tax credit limitation will in
general be limited to the gross amount of the dividend,
multiplied by the reduced rate divided by the highest rate of
tax normally applicable to dividends. The limitation on foreign
taxes eligible for credit is calculated separately with respect
to specific classes of income. For this purpose, dividends
distributed by us with respect to the ADSs or ordinary shares
will generally constitute “passive category income”
but could, in the case of certain U.S. Holders, constitute
“general category income.”
In the event that we are required to withhold PRC income tax on
dividends paid to you with respect to our ordinary shares or
ADSs under the newly enacted PRC enterprise income tax law, you
may be able to claim a reduced rate of PRC withholding tax if
you are eligible for benefits under the
U.S.-PRC
Avoidance of Double Taxation Treaty and if we are deemed to be a
resident of China under such
U.S.-PRC
treaty. You should consult your own tax advisor about your
eligibility for reduction of PRC withholding tax. Subject to
generally applicable limitations, you may be able to claim a
deduction or a foreign tax credit for PRC tax withheld at the
appropriate rate. You are urged to consult your tax advisors
regarding the availability of the foreign tax credit under your
particular circumstances.
Taxation
of Dispositions of ADSs or Ordinary Shares
Subject to the PFIC rules discussed below, you will recognize
taxable gain or loss on any sale, exchange or other taxable
disposition of an ADS or ordinary share equal to the difference
between the amount realized for the
ADS or ordinary share and your tax basis in the ADS or ordinary
share. The gain or loss generally will be capital gain or loss.
If you are a non-corporate U.S. Holder, including an
individual U.S. Holder, who has held the ADS or ordinary
share for more than one year, you will be eligible for reduced
tax rates. The deductibility of capital losses is subject to
limitations. Any such gain or loss that you recognize will
generally be treated as U.S. source income or loss for
foreign tax credit limitation purposes. However, the newly
enacted PRC enterprise income tax law may apply to gains on the
sale and disposition of our ordinary shares or ADSs. If we are
deemed to be a resident of China under the
U.S.-PRC
Avoidance of Double Taxation Treaty, such gain would be treated
as arising from sources within China. You are urged to consult
your tax advisors regarding the tax consequences if PRC
withholding tax is imposed on the disposition of shares,
including the availability of the foreign tax credit under your
particular circumstances.
Passive
Foreign Investment Company
We do not expect to be a PFIC for U.S. federal income tax
purposes for our current taxable year or the foreseeable future.
Our actual PFIC status for the current taxable year ending
December 31, 2008 will not be determinable until after the
close of the current taxable year ending December 31, 2008,
and accordingly, there is no guarantee that we will not be a
PFIC for 2008 or any future taxable year. A
non-U.S. corporation
is considered to be a PFIC for any taxable year if either:
•
at least 75% of its gross income is passive; or
•
at least 50% of the value of its assets (based on an average of
the quarterly values of the assets during a taxable year) is
attributable to assets that produce or are held for the
production of passive income.
We will be treated as owning our proportionate share of the
assets and earnings and our proportionate share of the income of
any other corporation in which we own, directly or indirectly,
more than 25% (by value) of the stock.
We must make a separate determination each year as to whether we
are a PFIC. As a result, our PFIC status may change. If we are a
PFIC for any year during which you hold, ADSs or ordinary
shares, we generally will continue to be treated as a PFIC for
all succeeding years during which you hold, ADSs or ordinary
shares.
If we are a PFIC for any year in which you hold ADSs or ordinary
shares, you will be subject to special tax rules with respect to
any “excess distribution” that you receive and any
gain you realize from a sale or other disposition (including a
pledge) of the ADSs or ordinary shares, unless you make a
“mark-to-market” election as discussed below.
Distributions you receive in a taxable year that are greater
than 125% of the average annual distributions you received
during the shorter of the three preceding taxable years or your
holding period for the ADSs or ordinary shares will be treated
as an excess distribution. Under these special tax rules:
•
the excess distribution or gain will be allocated ratably over
your holding period for the ADSs or ordinary shares;
•
the amount allocated to the current taxable year, and any
taxable year prior to the first taxable year in which we became
a PFIC, will be treated as ordinary income; and
•
the amount allocated to each other year will be subject to the
highest tax rate in effect for that year and the interest charge
generally applicable to underpayments of tax will be imposed on
the resulting tax attributable to each such year.
The tax liability for amounts allocated to years prior to the
year of disposition or “excess distribution” cannot be
offset by any net operating losses for such years, and gains
(but not losses) realized on the sale of the ADSs or ordinary
shares cannot be treated as capital, even if you hold the ADSs
or ordinary shares as capital assets.
Alternatively, a U.S. Holder of “marketable
stock” (as defined below) in a PFIC may make a
mark-to-market election for such stock of a PFIC to elect out of
the tax treatment discussed in the two preceding paragraphs. If
you make a mark-to-market election for the ADSs or ordinary
shares, you will include in income each year an amount equal to
the excess, if any, of the fair market value of the ADSs or
ordinary shares as of the close of your taxable year over your
adjusted basis in such ADSs or ordinary shares. You are allowed
a deduction for the excess, if any, of the adjusted basis of the
ADSs or ordinary shares over their fair market value as of the
close of the taxable year.
However, deductions are allowable only to the extent of any net
mark-to-market gains on the ADSs or ordinary shares included in
your income for prior taxable years. Amounts included in your
income under a mark-to-market election, as well as gain on the
actual sale or other disposition of the ADSs or ordinary shares,
are treated as ordinary income. Ordinary loss treatment also
applies to the deductible portion of any mark-to-market loss on
the ADSs or ordinary shares, as well as to any loss realized on
the actual sale or disposition of the ADSs or ordinary shares,
to the extent that the amount of such loss does not exceed the
net mark-to-market gains previously included for such ADSs or
ordinary shares. Your basis in the ADSs or ordinary shares will
be adjusted to reflect any such income or loss amounts. The tax
rules that apply to distributions by corporations that are not
PFICs that are described above at “— Taxation of
Dividends and Other Distributions on the ADSs or Ordinary
Shares” would apply to distributions by us in years
subsequent to the year in which you made the mark-to-market
election.
The mark-to-market election is available only for
“marketable stock,” which is stock that is regularly
traded in other than de minimis quantities on at least
15 days during each calendar quarter on a qualified
exchange, including the New York Stock Exchange, or other
market, as defined in applicable U.S. Treasury regulations.
The ADSs are listed on the New York Stock Exchange, and we
expect, although no assurance can be given, that they will be
regularly traded on the New York Stock Exchange. Consequently,
if you are a holder of ADSs, the mark-to-market election should
be available to you were we to be or become a PFIC. However, it
is unclear whether a U.S. Holder of ordinary shares will be
able to make a mark-to-market election. You should consult your
own tax advisors regarding the U.S. federal income tax
consequences that would arise if we are treated as a PFIC while
you hold ordinary shares.
In addition, notwithstanding any election you make with regard
to the ADSs or ordinary shares, dividends that you receive from
us will not constitute qualified dividend income to you if we
are a PFIC either in the taxable year of the distribution or the
preceding taxable year. Moreover, your ADSs or ordinary shares
will be treated as stock in a PFIC if we were a PFIC at any time
during your holding period in your ADSs or ordinary shares, even
if we are not currently a PFIC. For purposes of this rule, if
you make a mark-to-market election with respect to your ADSs or
ordinary shares, you will be treated as having a new holding
period in your ADSs or ordinary shares beginning on the first
day of the first taxable year beginning after the last taxable
year for which the mark-to-market election applies. Dividends
that you receive that do not constitute qualified dividend
income are not eligible for taxation at the 15% maximum rate
applicable to qualified dividend income. Instead, you must
include the gross amount of any such dividend paid by us out of
our accumulated earnings and profits (as determined for United
States federal income tax purposes) in your gross income, and it
will be subject to tax at rates applicable to ordinary income.
If you hold ADSs or ordinary shares in any year in which we are
a PFIC, you will be required to file Internal Revenue Service
Form 8621 regarding distributions received on the ADSs or
ordinary shares and any gain realized on the disposition of the
ADSs or ordinary shares.
In addition, if we are a PFIC, we do not intend to prepare or
provide you with the information necessary to make a
“qualified electing fund” election, which, like the
mark-to-market election, is a means by which U.S. taxpayers
may elect out of the tax treatment that generally applies to
PFICs.
You are urged to consult your tax advisor regarding the
application of the PFIC rules to your investment in ADSs or
ordinary shares.
Information
Reporting and Backup Withholding
Dividend payments with respect to ADSs or ordinary shares and
proceeds from the sale or exchange of ADSs or ordinary shares
may be subject to information reporting to the Internal Revenue
Service and possible U.S. backup withholding at a current
rate of 28%. Backup withholding will not apply, however, if you
are a corporation or a U.S. Holder who furnishes a correct
taxpayer identification number and makes any other required
certification or if you are otherwise exempt from backup
withholding. If you are a U.S. Holder who is required to
establish exempt status, you generally must provide such
certification on Internal Revenue Service
Form W-9.
U.S. Holders should consult their tax advisors regarding
the application of the U.S. information reporting and
backup withholding rules.
Backup withholding is not an additional tax. Amounts withheld as
backup withholding may be credited against your
U.S. federal income tax liability, and you may obtain a
refund of any excess amounts withheld under the
backup withholding rules by filing the appropriate claim for
refund with the Internal Revenue Service and furnishing any
required information in a timely manner.
F.
Dividends
and Paying Agents
Not applicable.
G.
Statement
by Experts
Not applicable.
H.
Documents
on Display
We have previously filed with the SEC our registration statement
on
Form F-1
and prospectus under the Securities Act with respect to our ADSs.
We are currently subject to periodic reporting and other
informational requirements of the Exchange Act as applicable to
foreign private issuers. Accordingly, we are required to file
reports, including annual reports on
Form 20-F,
and other information with the SEC. All information filed with
the SEC can be inspected and copied at the public reference
facilities maintained by the SEC at 100 F Street,
N.E., Washington, D.C. 20549. You can request copies of
these documents upon payment of a duplicating fee, by writing to
the SEC. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
rooms. Additional information may also be obtained over the
Internet at the SEC’s website at www.sec.gov.
As a foreign private issuer, we are exempt under the Exchange
Act from, among other things, the rules prescribing the
furnishing and content of proxy statements, and our executive
officers, directors and principal shareholders are exempt from
the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act. In addition,
we will not be required under the Exchange Act to file periodic
reports and financial statements with the SEC as frequently or
as promptly as U.S. companies whose securities are
registered under the Exchange Act. However, we intend to furnish
the depositary with our annual reports, which will include a
review of operations and annual audited consolidated financial
statements prepared in conformity with U.S. GAAP, and all
notices of shareholders’ meeting and other reports and
communications that are made generally available to our
shareholders. The depositary will make such notices, reports and
communications available to holders of our ADSs and, upon our
request, will mail to all record holders of our ADSs the
information contained in any notice of a shareholders’
meeting received by the depositary from us.
I.
Subsidiary
Information
Not applicable.
ITEM 11.
QUALITATIVE
AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
Quantitative
and Qualitative Disclosure about Market Risks
Foreign
currency risk
Our financial statements are expressed in U.S. dollars but
the functional currency of our principal operating subsidiaries,
Jiangxi LDK Solar, Jiangxi LDK PV Silicon and Jiangxi LDK
Polysilicon, is Renminbi. To the extent our principal PRC
operating subsidiaries hold assets or liabilities denominated in
foreign currencies, any appreciation of Renminbi against such
foreign currencies denominated assets or depreciation of
Renminbi against foreign currencies denominated liabilities
could result in a charge to our income statement. See note
(2)(c) to our audited consolidated financial statements for more
information on foreign currency translations for our financial
reporting purposes under Item 18 in this report.
A significant portion of our sales is denominated in Renminbi.
Our costs and capital expenditures are largely denominated in
U.S. dollars and euros. The Renminbi is not freely
convertible into other currencies and conversion of the Renminbi
into foreign currencies is subject to rules and regulations of
foreign exchange control promulgated by the PRC government. In
July 2005, the PRC government introduced a managed floating
exchange rate system to
allow the Renminbi to fluctuate within a regulated band based on
market supply and demand and by reference to a basket of foreign
currencies. The PRC government has since made, and may in the
future continue to make, further adjustments to its exchange
rate system.
Generally, appreciation of Renminbi against U.S. dollars
and euro will result in foreign exchange losses for monetary
assets denominated in U.S. dollars and euro and result in
foreign exchange gains for monetary liabilities denominated in
U.S. dollars and euro. Conversely, depreciation of Renminbi
against U.S. dollars and euro will generally result in
foreign exchange gains for monetary assets denominated in
U.S. dollars and euro and result in foreign exchange losses
for monetary liabilities denominated in U.S. dollars and
euro. Fluctuations in currency exchange rates could have a
significant effect on our financial stability due to a mismatch
among various foreign currency denominated assets and
liabilities. Fluctuations in exchange rates, particularly among
the U.S. dollar, euro and Renminbi, affect our operating
and net profit margins and would result in foreign currency
exchange gains and losses on our foreign currency denominated
assets and liabilities. As of December 31, 2006 and 2007,
our monetary assets denominated in U.S. dollars and euro
were primarily related to cash and cash equivalents, pledged
bank deposits and prepayments to suppliers, and our monetary
liabilities denominated in U.S. dollars and euro were
primarily related to short-term bank borrowings, long-term bank
borrowings, advance payments from customers, trade accounts
payable and other payables. Our exposure to foreign exchange
risk primarily relates to foreign currency exchange gains or
losses resulting from timing differences between the signing of
the contracts and the settlement of the contracts. As of
December 31, 2006 and 2007, our principal operating
subsidiaries held the following amounts of monetary assets and
liabilities denominated in U.S. dollars and euro:
We incurred a foreign currency exchange loss, net, of
approximately $1.3 million and $1.7 million for the
years ended December 31, 2006 and 2007, respectively. Since
2007, we have entered into certain foreign exchange forward
contracts to reduce the effect of our foreign exchange risk
exposure. However, we cannot assure you that we would be able to
effectively manage our foreign exchange risk exposure.
Without taking into account the effect of the potential use of
hedging or other derivative financial instruments, we estimate
that a 10% appreciation of Renminbi against U.S. dollars
based on the foreign exchange rate on December 31, 2007
would result in net gain of $11.6 million (2006: net gain
of $0.4 million) for our assets and liabilities denominated
in U.S. dollars as of December 31, 2007. Conversely,
we estimate that a 10% depreciation of Renminbi against
U.S. dollars would result in net loss of $11.6 million
(2006: net loss of $0.4 million) for our assets and
liabilities denominated in U.S. dollars as of
December 31, 2007.
Without taking into account the effect of the potential use of
hedging or other derivative financial instruments, we estimate
that a 10% appreciation of Renminbi against the euro based on
the foreign exchange rate on December 31, 2007 would result
in net loss of $2.5 million (2006: net loss of
$0.9 million) for our assets and liabilities denominated in
euro as of December 31, 2007. Conversely, we estimate that
a 10% depreciation of Renminbi against the euro would result in
net gain of $2.5 million (2006: net gain of
$0.9 million) for our assets and liabilities denominated in
euro as of December 31, 2007.
We cannot predict the effect of future exchange rate
fluctuations on our results of operations and may incur net
foreign currency exchange losses in the future.
Interest
rate risk
Our exposure to the risk of changes in market interest rates
primarily relates to our interest-bearing borrowings. We entered
into an interest rate swap arrangement in July 2007 in respect
of an outstanding loan with an aggregate principal amount of
$25.0 million to reduce our interest rate risk exposure.
Our future interest expenses on our borrowings may increase due
to changes in market interest rates. We may engage in additional
interest rate hedging activities. As of December 31, 2007,
our total outstanding bank borrowings amounted to
$289.2 million and our short-term borrowings amounted to
$264.1 million with a weighted average interest rate of
6.5% per annum and maturity terms ranging from one to twelve
months. Majority of our indebtedness accrues interest at fixed
rates. As a result, we have no significant exposure to
fluctuations in interest rates.
Credit
risk
Substantially all of our cash and cash equivalents are held in
major financial institutions located in China, which our
management believes are of high credit quality. We have policies
that limit the amount of credit exposure to any financial
institution. Because we are often required to prepay substantial
amounts to our raw material and equipment suppliers to ensure
availability and timely delivery, we are subject to the credit
quality of such suppliers. Although we make every effort to
screen our suppliers and ensure that we enter into transactions
with creditworthy suppliers only, and we believe there is no
significant credit risk with these suppliers, there can be no
assurance that we will not suffer from default by any of these
suppliers. As of December 31, 2006 and 2007, we made
aggregate prepayments of approximately $48.8 million and
$308.4 million to our suppliers, respectively.
Liquidity
risk
Our liquidity is primarily dependent on our ability to maintain
adequate cash inflows from our operations to meet our debt
obligations as they become due, and our ability to obtain
external financing to meet our committed future capital
expenditures. Our cash outflow from investing activities was
$328.6 million for the year ended December 31, 2007.
With regard to our future capital commitments and other
financing requirements, we have obtained approximately
$270.3 million in aggregate principal amount of banking
facilities mainly from various reputable commercial banks in
China. As of December 31, 2007, we had unutilized banking
facilities of $137.9 million. In addition, as most of our
banking facilities were obtained from various reputable PRC
commercial banks, we are also of the view that our unutilized
banking facilities will not be significantly affected by
sub-prime lending issues which are currently affecting certain
overseas commercial banks.
ITEM 12.
DESCRIPTION
OF SECURITIES OTHER THAN EQUITY SECURITIES
MATERIAL
MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF
PROCEEDS
A.
Material
Modification to the Instruments Defining the Rights of Security
Holders
None.
B.
Material
Modification to the Rights of Registered Securities by Issuing
or Modifying or any Other Class of Securities
None.
C.
Withdrawal
or Substitution of a Material Amount of the Assets Securing any
Registered Securities
Not applicable.
D.
Change
of Trustees or Paying Agents for any Registered Securities
None.
E.
Use
of Proceeds
Not applicable.
ITEM 15.
CONTROLS
AND PROCEDURES
Evaluation
of Disclosure Controls and Procedures
As of the end of the period covered by this report, our
management, with the participation of our chief executive
officer and chief financial officer, has performed an evaluation
of the effectiveness of our disclosure controls and procedures
within the meaning of
Rules 13a-15(e)
and 15d-15(e) of the Exchange Act.
Based upon that evaluation, our management has concluded that,
as of December 31, 2007, our disclosure controls and
procedures were effective in ensuring that the information
required to be disclosed by us in the reports that we file and
furnish under the Exchange Act was recorded, processed,
summarized and reported, within the time periods specified in
the SEC’s rules and forms.
See “Item 5 — Operating Results —
Internal Control Over Financial Reporting” for changes in
our internal control over financial reporting.
This annual report does not include a report of
management’s assessment regarding internal control over
financial reporting or an attestation report of the
company’s registered public accounting firm due to a
transition period established by rules of the SEC for newly
public companies.
ITEM 16.
RESERVED
ITEM 16A.
AUDIT
COMMITTEE FINANCIAL EXPERT
Our board of directors has determined that Mr. Louis T.
Hsieh and Mr. Bing Xiang, both independent directors and
members of our audit committee, are audit committee financial
experts.
Our board of directors adopted a code of ethics that applies to
our directors, officers, employees and advisors. A copy of our
code of ethics can be found as Exhibit 99.1 to our
Registration Statement on
Form F-1
that we filed with SEC in May 2007 (File
Number: 333-142881). Any change or waiver, explicit or
implicit, with respect to our code of ethics, must be disclosed
to our shareholders either in our annual report or on our
internet website, www.ldksolar.com.
ITEM 16C.
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
The following table sets forth the aggregate fees by categories
specified below in connection with certain professional services
rendered by our independent auditor for the periods indicated.
We did not pay any tax related or other fees to our auditors
during the periods indicated below.
2006
2007
Audit fees
(1)
$
478,620
$
673,905
Audit-related fees
(2)
$
390,453
$
1,555,507
(1)
“Audit fees” means the
aggregate fees billed for professional services rendered by our
independent auditor for the audit of our consolidated financial
statements.
(2)
“Audit-related fees”
means the aggregate fees billed for assurance and related
services by our independent auditor that are reasonably related
to the performance of the audit or review of our consolidated
financial statements and are not reported under “Audit
fees.” Services comprising the fees disclosed under the
category of “Audit-related fees” in 2007 involve
principally the issue of comfort letter and rendering of listing
advice in connection with our IPO.
All audit and non-audit services provided by our independent
auditors must be pre-approved by our audit committee. Our audit
committee has adopted a combination of two approaches in
pre-approving proposed services: general pre-approval and
specific pre-approval. With general approval, proposed services
are pre-approved without consideration of specific
case-by-case
services; with specific approval, proposed services require the
specific pre-approval of the audit committee. Unless a type of
service has received general pre-approval, it will require
specific pre-approval by our audit committee. Any proposed
services exceeding pre-approved cost levels or budgeted amounts
will also require specific pre-approval by our audit committee.
All requests or applications for services to be provided by our
independent auditors that do not require specific approval by
our audit committee will be submitted to our chief financial
officer and must include a detailed description of the services
to be rendered. The chief financial officer will determine
whether such services are included within the list of services
that have received the general pre-approval of the audit
committee. The audit committee will be informed on a timely
basis of any such services. Requests or applications to provide
services that require specific approval by our audit committee
will be submitted to the audit committee by both our independent
auditors and our chief financial officer and must include a
joint statement as to whether, in their view, the request or
application is consistent with the SEC’s rules on auditor
independence.
ITEM 16D.
EXEMPTIONS
FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
Not applicable.
ITEM 16E.
PURCHASES
OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED
PURCHASERS
See pages beginning on
page F-1
following Item 19.
ITEM 19.
EXHIBITS
The following documents are filed as part of this annual report:
Exhibit
Number
Document
1
.1
Fourth Amended and Restated Memorandum and Articles of
Association of the registrant, incorporated by reference to
Exhibit 3.2 to our Registration Statement on Form F-1 filed with
the SEC (File Number: 333-142881).
2
.1
Form of Deposit Agreement, incorporated by reference to
Registration Statement on Form F-6 filed with the SEC
(Registration No. 333-142899).
Form Employment Agreement between the registrant and each senior
officer, incorporated by reference to Exhibit 10.2 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.2
Form Service Agreement between the registrant and each executive
director, incorporated by reference to Exhibit 10.3 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.3
Form Service Agreement between the registrant and each
independent director, incorporated by reference to
Exhibit 10.4 to our Registration Statement on Form F-1
filed with the SEC (File Number: 333-142881).
4
.4
Form Confidentiality and Non-compete Agreement between the
registrant and each senior officer, engineer and technician,
incorporated by reference to Exhibit 10.5 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.5
Summary English translation of Cooperation Agreement, dated
October 10, 2005, between the registrant and Shanghai
Jiaotong University, incorporated by reference to Exhibit 10.6
to our Registration Statement on Form F-1 filed with the SEC
(File Number: 333-142881)
4
.6
Agreement, dated June 21, 2005, between GT Solar
Technologies, as seller, and Jiangxi LDK Solar, as buyer
(portions of the exhibit have been omitted pursuant to a request
for confidential treatment), incorporated by reference to
Exhibit 10.7.1 to our Registration Statement on Form F-1 filed
with the SEC (File Number: 333-142881)
4
.7
Addendum #2 to Agreement, dated August 13, 2005, between GT
Solar Technologies, as seller, and Jiangxi LDK Solar, as buyer,
incorporated by reference to Exhibit 10.7.2 to our Registration
Statement on Form F-1 filed with the SEC (File Number:
333-142881)
4
.8
Agreement, Phase 3, dated January 6, 2006, between GT
Solar Technologies, as seller, and Jiangxi LDK Solar, as buyer,
incorporated by reference to Exhibit 10.7.3 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.9
Agreement, Phase 4, dated October 1, 2006, between GT
Solar, as seller, and Jiangxi LDK Solar, as buyer, incorporated
by reference to Exhibit 10.7.4 to our Registration
Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.10
Purchasing Agreement, dated January 5, 2007, between HCT
Shaping, as seller, and Jiangxi LDK Solar, as buyer,
incorporated by reference to Exhibit 10.8 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.11
Contract, dated January 25, 2006, between Meyer Burger AG,
as seller, and Jiangxi LDK Solar, as buyer, incorporated by
reference to Exhibit 10.9 to our Registration Statement on Form
F-1 filed with the SEC (File Number: 333-142881).
Summary English translation of Cooperation Agreement, dated
October 16, 2005, between Suntech Power Holdings Co., Ltd.
and Jiangxi LDK Solar, incorporated by reference to Exhibit
10.10 to our Registration Statement on Form F-1 filed with the
SEC (File Number: 333-142881).
4
.13
Sales Contract, dated October 29, 2006, between Technischer
Warenhandel Heller and NCA Fortin Inc., as co-sellers, and
Jiangxi LDK Solar, as buyer, incorporated by reference to
Exhibit 10.11 to our Registration Statement on Form F-1 filed
with the SEC (File Number: 333-142881).
4
.14
Five-Year Sales Contract, dated November 1, 2006, between
Prime GLP Inc., as seller, and Jiangxi LDK Solar, as buyer,
incorporated by reference to Exhibit 10.12 to our Registration
Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.15
Best Effort Cooperation Agreement, dated December 4, 2006,
between Kunical International Group Ltd., as seller, and Jiangxi
LDK Solar, as buyer, incorporated by reference to Exhibit 10.13
to our Registration Statement on Form F-1 filed with the SEC
(File Number: 333-142881).
4
.16
Eight-Year Silicon Sales Contract, dated December 8, 2006,
between Komex Inc., as seller, and Jiangxi LDK Solar, as buyer,
incorporated by reference to Exhibit 10.14 to our Registration
Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.17
Summary English translation of Cooperation Agreement, dated
March 28, 2007, between E’mei Semi-conductor Materials
Plant, as seller, and Jiangxi LDK Solar, as buyer, incorporated
by reference to Exhibit 10.15 to our Registration Statement on
Form F-1 filed with the SEC (File Number: 333-142881).
4
.18
Summary English translation of Framework Cooperation Agreement,
dated April 8, 2007, between Luoyang Zhonggui Hi-Tech Co.,
Ltd., as seller, and Jiangxi LDK Solar, as buyer, incorporated
by reference to Exhibit 10.16 to our Registration Statement on
Form F-1 filed with the SEC (File Number: 333-142881).
4
.19
Wafer Sales Agreement, dated March 5, 2006, between Solland
Solar Energy B.V., as buyer, and Jiangxi LDK Solar, as seller,
as supplemented on October 26, 2006 with respect to
appendices A to F thereto and on April 3, 2007
with respect to appendix D thereto (a portion of the
exhibit has been omitted pursuant to a request for confidential
treatment), incorporated by reference to Exhibit 10.17 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.20
Summary English translation of Solar Cell Silicon Wafer Supply
Agreement, dated July 6, 2006, between Canadian Solar Inc.,
as buyer, and Jiangxi LDK Solar, as seller, as supplemented on
August 11, 2006, incorporated by reference to Exhibit 10.18
to our Registration Statement on Form F-1 filed with the SEC
(File Number: 333-142881).
4
.21
Summary English translation of Silicon Supply Agreement, dated
November 11, 2006, between Jiangsu Linyang Solarfun Co.,
Ltd., as buyer, and Jiangxi LDK Solar, as seller, incorporated
by reference to Exhibit 10.19 to our Registration Statement on
Form F-1 filed with the SEC (File Number: 333-142881).
4
.22
Summary English translation of Silicon Supply Cooperation
Agreement, dated November 14, 2006, between Jiangsu Linyang
Solarfun Co., Ltd., as buyer, and Jiangxi LDK Solar, as seller,
incorporated by reference to Exhibit 10.20 to our Registration
Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.23
Cooperation Agreement, dated March 28, 2007, between
Q-Cells AG and Jiangxi LDK Solar, incorporated by reference to
Exhibit 10.21 to our Registration Statement on Form F-1 filed
with the SEC (File Number: 333-142881).
4
.24
Summary English translation of Guarantee Agreement, dated
October 21, 2005, among Suzhou Liouxin Industry Co., Ltd.,
Saiweng Technology (Suzhou) Co., Ltd., Jiangxi Liouxin Industry
Co., Ltd. and Mr. Xiaofeng Peng, incorporated by reference
to Exhibit 10.6 to our Registration Statement on
Form F-1
filed with the SEC (File Number:
333-142881).
4
.25
Summary English translation of Loan Agreement, dated
July 24, 2006, between Jiangxi LDK Solar, as borrower, and
Suzhou Liouxin Industry Co., Ltd., as lender, incorporated by
reference to Exhibit 10.24 to our Registration Statement on Form
F-1 filed with the SEC (File Number: 333-142881).
Summary English translation of Loan Repayment Confirmation
Agreement, dated March 28, 2006, among Saiweng Technology
(Suzhou) Co., Ltd., Jiangxi LDK Solar and Mr. Xiaofeng
Peng, incorporated by reference to Exhibit 10.25 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.27
Summary English translation of Loan Repayment Confirmation
Agreement, dated April 8, 2006, between Jiangxi LDK Solar
and Mr. Xiaofeng Peng, incorporated by reference to Exhibit
10.26 to our Registration Statement on Form F-1 filed with the
SEC (File Number: 333-142881).
4
.28
Summary English translation of Renminbi Loan Agreement, dated
March 20, 2006, between China Construction Bank
Corporation, Xinyu Branch, as lender, and Jiangxi LDK Solar, as
borrower, incorporated by reference to Exhibit 10.28 to our
Registration Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.29
Summary English translation of Entrusted Loan Agreement, dated
December 22, 2006, among Jiangxi Liouxin Industry Co.,
Ltd., as trustor, Bank of China Limited, Xinyu Branch, as
trustee lender, and Jiangxi LDK Solar, as borrower, incorporated
by reference to Exhibit 10.29 to our Registration Statement on
Form F-1 filed with the SEC (File Number: 333-142881).
4
.30
Summary English translation of Foreign Currency Loan Contract,
dated December 29, 2006, between China Development Bank, as
lender, and Jiangxi LDK Solar, as borrower, incorporated by
reference to Exhibit 10.30 to our Registration Statement on Form
F-1 filed with the SEC (File Number: 333-142881).
4
.31
Summary English translation of Foreign Currency Loan Contract,
dated February 5, 2007, between Bank of China Limited,
Xinyu Branch, as lender, and Xiangxi LDK Solar, as borrower,
incorporated by reference to Exhibit 10.31 to our Registration
Statement on Form F-1 filed with the SEC (File
Number: 333-142881).
4
.32
Summary English translation of Land Use Right Transfer
Agreement, dated May 15, 2006, between Jiangxi LDK Solar
and Jiangxi Liouxin Industry Co., Ltd., incorporated by
reference to Exhibit 10.33 to our Registration Statement on Form
F-1 filed with the SEC (File Number: 333-142881).
4
.33
Summary English translation of Real Property Purchase Agreement,
dated May 15, 2006, between Jiangxi LDK Solar and Jiangxi
Liouxin Industry Co., Ltd., incorporated by reference to Exhibit
10.34 to our Registration Statement on Form F-1 filed with the
SEC (File Number: 333-142881).
4
.34
Summary English translation of Land Use Right Transfer
Agreement, dated September 5, 2006, between Jiangxi LDK
Solar and Jiangxi Liouxin Industry Co., Ltd., incorporated by
reference to Exhibit 10.35 to our Registration Statement on Form
F-1 filed with the SEC (File Number: 333-142881).
4
.35
Summary English translation of Real Property Purchase Agreement,
dated September 5, 2006, between Jiangxi LDK Solar and
Jiangxi Liouxin Industry Co., Ltd., incorporated by reference to
Exhibit 10.36 to our Registration Statement on Form F-1 filed
with the SEC (File Number: 333-142881).
4
.36
Supply Agreement, dated July 18, 2007, between GT Solar, as
seller, and LDK Solar Co., Ltd and Jiangxi LDK Solar, as buyers
(certain information in the agreement has been omitted pursuant
to a request for confidential treatment).
4
.37
Summary translation of Loan Guarantee Agreement, dated
February 5, 2007, between Mr. Xiaofeng Peng and Bank
of China Xinyu branch.
4
.38
Summary translation of Loan Guarantee Agreement, dated
December 29, 2006, among Mr. Xiaofeng Peng,
Ms. Zhou Shan, and China Development Bank.
4
.39
Summary translation of Loan Guarantee Agreement, dated
March 20, 2006, between Mr. Xiaofeng Peng and China
Construction Bank.
4
.40
Summary translation of Cooperation Agreement, dated
January 23, 2007, between Jiangxi LDK Solar and Nanchang
University.
The registrant hereby certifies that it meets all of the
requirements for filing on
Form 20-F
and that it has duly caused and authorized the undersigned to
sign this annual report of its behalf.
We have audited the accompanying consolidated balance sheets of
LDK Solar Co., Ltd. and its subsidiaries (the “Group”)
as of December 31, 2006 and 2007, and the related
consolidated statements of operations, shareholders’ equity
and comprehensive (loss) income, and cash flows for the period
from July 5, 2005 (date of inception) to December 31,2005 and the years ended December 31, 2006 and 2007. These
consolidated financial statements are the responsibility of the
Group’s management. Our responsibility is to express an
opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the financial
position of the Group as of December 31, 2006 and 2007, and
the results of its operations and its cash flows for the period
from July 5, 2005 (date of inception) to December 31,2005 and the years ended December 31, 2006 and 2007, in
conformity with U.S. generally accepted accounting principles.
CONSOLIDATED BALANCE SHEETS — (Continued)
AS OF DECEMBER 31, 2006 AND 2007 (Amounts in US$ thousands, except share and per share data)
LIABILITIES,
REDEEMABLE CONVERTIBLE PREFERRED SHARES
AND SHAREHOLDERS’ EQUITY
December 31,
December 31,
Note
2006
2007
Current liabilities
Short-term bank borrowings
(9
)
56,765
264,101
Trade accounts payable
6,119
18,032
Advance payments from customers
40,002
141,223
Accrued expenses and other payables
(10
)
14,600
95,301
Other financial liabilities
—
3,357
Total current liabilities
117,486
522,014
Warrants
2
—
Long-term bank borrowings, excluding current portions
(9
)
30,245
25,125
Advance payments from customers — noncurrent
—
67,554
Other liabilities
—
2,222
Total liabilities
147,733
616,915
Series A redeemable convertible preferred shares: US$0.10
par value; 5,000,000 and nil shares authorized as of
December 31, 2006 and 2007, respectively; 4,580,000 and nil
shares issued and outstanding as of December 31, 2006 and
2007, respectively (Aggregate liquidation value of US$19,500 and
nil as of December 31, 2006 and 2007, respectively)
(14
)
15,447
—
Series B redeemable convertible preferred shares: US$0.10
par value; 8,000,000 and nil shares authorized as of
December 31, 2006 and 2007, respectively; 8,000,000 and nil
shares issued and outstanding as of December 31, 2006 and
2007, respectively (Aggregate liquidation value of US$62,400 and
nil as of December 31, 2006 and 2007, respectively)
(14
)
49,721
—
Series C redeemable convertible preferred shares: US$0.10
par value; 3,000,000 and nil shares authorized as of
December 31, 2006 and 2007, respectively; 3,000,000 and nil
shares issued and outstanding as of December 31, 2006 and
2007, respectively (Aggregate liquidation value of US$29,250 and
nil as of December 31, 2006 and 2007, respectively)
CONSOLIDATED BALANCE SHEETS — (Continued)
AS OF DECEMBER 31, 2006 AND 2007 (Amounts in US$ thousands, except share and per share data)
LIABILITIES, REDEEMABLE CONVERTIBLE PREFERRED SHARES
AND SHAREHOLDERS’ EQUITY — (Continued)
December 31,
December 31,
Note
2006
2007
Shareholders’ equity
Ordinary shares: US$0.10 par value; 134,000,000 and
499,580,000 shares authorized as of December 31, 2006
and 2007, respectively; 75,000,000 and 106,044,700 shares
issued and outstanding as of December 31, 2006 and 2007,
respectively
(15
)
7,500
10,604
Additional paid-in capital
29,302
486,253
Subscription receivable for ordinary shares
(7,490
)
—
Statutory reserve
3,623
18,697
Accumulated other comprehensive income
2,319
31,481
Retained earnings
21,988
146,036
Total shareholders’ equity
57,242
693,071
Commitments and contingencies
(13
)
Total liabilities, redeemable convertible preferred shares and
shareholders’ equity
292,719
1,309,986
See accompanying notes to consolidated financial statements.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
AND COMPREHENSIVE (LOSS) INCOME — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
Subscription
Accumulated
Additional
Receivable for
Other
Total
Total
Ordinary Shares
Contributed
Paid-in
Ordinary
Statutory
Comprehensive
Retained
Shareholders’
Comprehensive
Number
Amount
Capital
Capital
Share
Reserve
Income
Earnings
Equity
Income
Net income
—
—
—
—
—
—
—
144,059
144,059
144,059
Appropriation to statutory reserve (Note 16)
—
—
—
—
—
15,074
—
(15,074
)
—
Settlement of subscription receivable
—
—
—
—
7,490
—
—
—
7,490
Foreign currency translation adjustment, net of nil tax
—
—
—
—
—
—
29,162
—
29,162
29,162
Total comprehensive income
—
—
—
—
—
—
—
—
—
173,221
Issuance of new shares, net of related expenses US$26,866
14,007,700
1,400
—
349,941
—
—
—
—
351,341
Conversion of Series A, Series B and Series C
redeemable convertible preferred shares
15,580,000
1,558
—
91,123
—
—
—
—
92,681
Issuance of ordinary shares upon exercise of share options
1,457,000
146
—
6,338
—
—
—
—
6,484
Share options (Note 17)
—
—
—
9,549
—
—
—
—
9,549
Accretion of Series A redeemable convertible preferred
shares to redemption value (Note 14)
—
—
—
—
—
—
—
(860
)
(860
)
Accretion of Series B redeemable convertible preferred
shares to redemption value (Note 14)
—
—
—
—
—
—
—
(2,726
)
(2,726
)
Accretion of Series C redeemable convertible preferred
shares to redemption value (Note 14)
CONSOLIDATED STATEMENTS OF CASH
FLOWS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
From July 5,
Year
Year
2005 to
Ended
Ended
December 31,
December 31,
December 31,
Note
2005
2006
2007
Cash flows from financing activities:
Capital contributions
11,534
2,022
—
Pledged bank deposits related to bank borrowings
—
—
(111,094
)
Proceeds from new loans and borrowings
—
114,116
288,302
Repayment of loans and borrowings
—
(27,106
)
(80,199
)
Loans and advances from related parties
16,543
18,773
—
Repayment of loans and advances from related parties
—
(29,838
)
—
Proceeds from issuance of ordinary shares
—
10
369,489
Distributions to shareholders in connection with the
Reorganization
—
(8,000
)
—
Payment of expenses relating to issuance of ordinary shares
—
(405
)
(4,174
)
Proceeds from issuance of exchangeable notes, net of issue cost
US$52
—
7,948
—
Proceeds from
Series A-2
redeemable convertible preferred shares, net of issue cost US$51
—
6,949
—
Proceeds from Series B redeemable convertible preferred
shares, net of issue cost US$78
—
47,922
—
Proceeds from Series C redeemable convertible preferred
shares
—
22,500
—
Net cash provided by financing activities
28,077
154,891
462,324
Effect of foreign currency exchange rate changes on cash and
cash equivalents
39
2,280
205
Net increase in cash and cash equivalents
9,687
20,540
53,243
Cash and cash equivalents at beginning of period
—
9,687
30,227
Cash and cash equivalents at end of period
9,687
30,227
83,470
Supplemental disclosures of cash flow information:
Interest payments, net of amount capitalized
—
2,680
9,926
Supplemental disclosures of non-cash investing and financing
transaction:
Property, plant and equipment contributed as paid-in capital
—
15,444
—
Payable for purchase of property, plant and equipment
—
10,893
60,954
Payable for purchase of land use rights
—
1,268
832
Conversion of Series A, Series B and Series C
redeemable convertible preferred shares into ordinary shares
—
—
92,681
Conversion from exchangeable notes to
Series A-1
redeemable convertible preferred shares
—
7,948
—
Offset of amounts due to/from related party
—
5,478
—
See accompanying notes to consolidated financial statements.
PRINCIPAL
ACTIVITIES, ORGANIZATION AND BASIS OF PRESENTATION
Principal
activities
The accompanying consolidated financial statements consist of
the financial statements of LDK Solar Co., Ltd. (the
“Company” or “LDK”) and its subsidiaries,
Jiangxi LDK Solar Hi-Tech Co., Ltd. (“JXLDK”), Jiangxi
LDK PV Silicon Technology Co., Ltd. (“LDKPV”), Jiangxi
LDK Solar Polysilicon Co., Ltd. (“LDKSP”), LDK Solar
USA Inc. (“LDK USA”) and LDK Solar International
Company Limited (“LDK International”). The Company and
its subsidiaries are collectively referred to as the
“Group”.
The Group’s principal activities are manufacturing,
processing and sale of multicrystalline silicon wafers.
Organization
JXLDK was incorporated on July 5, 2005, in Xinyu, Jiangxi
Province, the People’s Republic of China (“PRC”)
by Suzhou Liouxin Industry Co., Ltd. (“SZ Liouxin”)
and Liouxin Industrial Limited (“HK Liouxin”) which
are both controlled by Mr. Peng Xiaofeng
(“Mr. Peng”). SZ Liouxin is fully owned by HK
Liouxin. The registered shareholders of HK Liouxin are
Mr. Peng and his father, who acts as a nominee and holds
the shares in trust for Mr. Peng. JXLDK was in a
development stage from July 2005 to April 2006 and started
production and product sales at the end of April 2006. The
development stage activities mainly included constructing
manufacturing plants, and the design, formulation and testing of
new products. The registered capital of JXLDK as at the date of
its inception and prior to the Reorganization described below
was US$29,000. From the inception date to December 31,2005, SZ Liouxin and HK Liouxin contributed paid-in capital of
US$7,479 and US$4,055 respectively to JXLDK in cash. In 2006
prior to the Reorganization, SZ Liouxin contributed to JXLDK
paid-in capital of US$521, and HK Liouxin contributed US$1,501
in cash and US$15,444 of property, plant and equipment. The
value of these property, plant and equipment, which were newly
acquired by HK Liouxin for the purpose of injecting into JXLDK
as paid-in capital, was based on the actual purchase costs
incurred by HK Liouxin to acquire these property, plant and
equipment from the vendors.
On May 1, 2006, Mr. Peng, through his wholly owned
subsidiary, LDK New Energy Holding Limited, incorporated the
Company in the Cayman Islands under the laws of the Cayman
Islands as part of the reorganization of JXLDK (the
“Reorganization”). In connection with the
Reorganization and the preparation for the Initial Public
Offering (“IPO”), the Company entered into the
following series of transactions:
1) The issuance of 75,000,000 ordinary shares of the
Company at par value of US$0.10 per share (adjusted for the
ten-for-one
share split effected on July 18, 2006) to LDK New
Energy Holding Limited during 2006 in connection with the
Reorganization;
2) The Company’s acquisition of all interests in JXLDK
from SZ Liouxin and HK Liouxin for the consideration of US$8,000
on July 10, 2006, when government approval was obtained, as
part of the Reorganization;
3) The issuance of exchangeable notes to two unrelated
investors for cash consideration of US$8,000 which is
mandatorily convertible into 3,000,000 Series A redeemable
convertible preferred shares. The exchangeable notes were
converted on July 28, 2006;
4) The issuance of 4,580,000 Series A redeemable
convertible preferred shares to a group of unrelated investors,
including 3,000,000
Series A-1
redeemable convertible preferred shares converted from the
exchangeable notes above and 1,580,000
Series A-2
redeemable convertible preferred shares issued for cash
consideration of US$7,000 (refer to note 14);
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
5) The issuance of 8,000,000 Series B redeemable
convertible preferred shares to a group of unrelated investors
for cash consideration of US$48,000 (refer to note 14);
6) The issuance of 3,000,000 Series C redeemable
convertible preferred shares to a group of unrelated investors
for cash consideration of US$22,500 (refer to note 14);
7) The formation of a fully owned subsidiary, LDK
International on September 5, 2006 in Hong Kong Special
Administrative Region (“HK SAR”).
On June 1, 2007, the Group completed its Initial Public
Offering (“IPO”) in the United States and sold
13,392,100 American depositary shares (“ADSs”),
representing 13,392,100 new ordinary shares, at an initial
public offering price of US$27.00 per ADS. The Group received
net proceeds, after deduction of the related offering costs, in
the amount of US$335,717. The ADSs are listed on the New York
Stock Exchange under the symbol LDK.
In June 2007, the underwriters exercised their over-allotment
option and the Group issued an additional 615,600 ADSs,
representing 615,600 ordinary shares, at US$27.00 per ADS. The
Group raised additional net proceeds of US$15,624 from the
exercise of the over-allotment option by the underwriters.
The accompanying consolidated financial statements have been
prepared in accordance with U.S. generally accepted accounting
principles (“US GAAP”).
Since the controlling and majority shareholder of JXLDK prior to
the Reorganization remained the controlling and majority
shareholder of the Company after consummation of the
Reorganization, the Reorganization is considered to be a
transfer of equity interests between entities under common
control and has been accounted for in a manner similar to a
pooling of interests. Accordingly, the assets and liabilities of
JXLDK transferred to the Company have been recognized at
JXLDK’s historical carrying amount and as if the transfer
of assets and liabilities and related business operations had
occurred as of July 5, 2005, the earliest date presented in
the accompanying consolidated financial statements. Cash
consideration of US$8,000 paid by the Company to SZ Liouxin and
HK Liouxin in connection with the transfer of JXLDK, has been
accounted for as a distribution to shareholders on July 21,2006.
(2)
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
(a)
Principles
of consolidation
The consolidated financial statements include the financial
statements of the Company and its subsidiaries. All significant
inter-company transactions and balances have been eliminated on
consolidation.
(b)
Use of
estimates
The preparation of financial statements in conformity with US
GAAP requires management of the Group to make estimates and
assumptions that affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and
liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates. On an
ongoing basis, management reviews its estimates, including those
related to the classification and realization of inventories,
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
estimated useful lives and residual values of long-lived assets,
the recoverability of the carrying values of long-lived assets,
the determination of fair values of financial instruments and
share-based instruments, and assessments about potential tax
uncertainties and contingent liabilities. Changes in facts and
circumstances may result in revised estimates.
(c)
Foreign
currency translation
The functional currency of the Company and LDK USA is the United
States dollar (“US$”). The functional currency of
JXLDK, LDKPV and LDKSP is Renminbi (“RMB”). The
functional currency of LDK International is the Hong Kong dollar
(“HK$”). Transactions denominated in other currencies
are recorded in the functional currency at the rates of exchange
prevailing when the transactions occur. Monetary assets and
liabilities denominated in other currencies are translated into
the functional currency at rates of exchange in effect at the
balance sheet dates. Exchange gains and losses are included in
the consolidated statements of operations.
The Group has chosen the U.S. dollar as its reporting currency.
Accordingly assets and liabilities are translated using exchange
rates in effect at each period end and average exchange rates
are used for the statements of operations.
Translation adjustments resulting from translation of these
financial statements are reflected as foreign currency
translation adjustment in other comprehensive income.
(d)
Commitments
and contingencies
Liabilities for loss contingencies arising from claims,
assessments, litigation, fines and penalties and other sources
are recorded when it is probable that a liability has been
incurred and the amount of the assessment can be reasonably
estimated. Legal and other fees incurred in connection with loss
contingencies are expensed as incurred and are included in
general and administrative expenses in the consolidated
statements of operations.
(e)
Cash
and cash equivalents
Cash and cash equivalents consist of cash at bank and on hand
and certificates of deposit with an initial term of less than
three months when purchased, which are unrestricted as to
withdrawal and use.
(f)
Pledged
bank deposits
Pledged bank deposits represent amounts held by banks, which are
not available for the Group’s use, as security for issuance
of letters of credit or short-term bank borrowings. Upon
maturity of the letters of credit and repayment of short-term
bank borrowings, which generally occur within one year, the
deposits are released by the bank and become available for
general use by the Group. Pledged bank deposits related to bank
borrowings are reported within cash flows from financing
activities in the consolidated statement of cash flows.
(g)
Trade
accounts receivable
Trade accounts receivable are recorded at the invoiced amount
and do not bear interest. Amounts collected on trade accounts
receivable are included in net cash provided by operating
activities in the consolidated statements of cash flows.
Allowance for doubtful accounts is provided based on the
Group’s best estimate of the amount of probable credit
losses in the Group’s existing accounts receivable. The
Group determines the allowance by analyzing specific customer
accounts that have known or potential collection issues. No
allowance for doubtful accounts was made for the period from
July 5, 2005 to December 31, 2005 and the years ended
December 31, 2006 and 2007.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(h)
Inventories
Inventories are stated at the lower of cost and net realizable
value. Cost is determined using the weighted average method. Net
realizable value is determined by reference to the sales
proceeds of items sold in the ordinary course of business or to
management’s estimates based on prevailing market
conditions. Inventories expected to be utilized for production
and sold after twelve months are classified as non-current
assets.
(i)
Property,
plant and equipment, net
Property, plant and equipment are stated at cost, net of
accumulated depreciation and impairment losses (see
note 2(l)).
Depreciation is calculated using the straight-line method over
the following estimated useful lives, taking into account the
assets’ estimated residual value:
Buildings
30 years
Plant and machinery
10 years
Furniture, fixture and office equipment
5 years
Motor vehicles
6 years
Construction in progress is stated at cost less any impairment
losses (see note 2(l)). Cost comprises direct costs of
construction as well as borrowing costs capitalized during the
period of construction and installation. The capitalization of
borrowing costs as part of the cost of a qualifying asset
commences when expenditure for the asset is being incurred,
borrowing costs are being incurred and activities that are
necessary to prepare the asset for its intended use are in
progress. Capitalization of borrowing costs ceases when
substantially all the activities necessary to prepare the asset
for its intended use are completed.
No depreciation is provided in respect of construction in
progress until it is substantially completed and ready for its
intended use.
(j)
Intangible
asset, net
Intangible asset, net represents technical know-how, which is
carried at cost less accumulated amortization. The technical
know-how was acquired from equipment manufacturers for operation
of equipment. Technical know-how is amortized on a straight-line
basis over its expected useful life of 10 years, less
impairment losses (see note 2 (l)).
(k)
Land
use rights
Land use rights represent fees paid to obtain the right to use
land in the PRC, which are charged to expense on a straight-line
basis over the respective periods of the rights granted.
(l)
Impairment
of long-lived assets
Property, plant and equipment and purchased intangible assets
are reviewed for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may
not be recoverable. Recoverability of assets to be held and used
is measured by a comparison of the carrying amount of an asset
to the estimated undiscounted future cash flows expected to be
generated by the asset. If the carrying amount of an asset
exceeds its estimated future cash flows, an impairment charge is
recognized by the amount by which the carrying amount of the
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
The Group used the following methods and assumptions to estimate
the fair value of financial instruments at the relevant balance
sheet date:
•
Short-term financial instruments (cash equivalents, pledged bank
deposits, trade accounts receivable and payable, short-term bank
borrowings, and accrued liabilities) — cost
approximates fair value because of the short maturity period.
•
Long-term debt — fair value is based on the amount of
future cash flows associated with each debt instrument
discounted at the Group’s current borrowing rate for
similar debt instruments of comparable terms. The carrying
values of the long term loans approximate their fair values as
all the long-term debt carries variable interest rates which
approximate rates currently offered by the Company’s
bankers for similar debt instruments of comparable maturities.
•
Foreign exchange forward contract — fair value is
determined by discounting estimated future cash flow, which is
based on the changes in the forward rate.
•
Interest rate swap contract — fair value is based on
the quotation from the financial institution.
(n)
Derivative
financial instruments
The Group enters into derivative financial instruments such as
foreign exchange forward contracts and interest rate swap
contract. Derivative financial instruments are initially
recognized in the balance sheet at fair value and subsequently
re-measured to their fair value with changes in fair value
included in determination of net income. As of December 31,2007, the Group had outstanding interest rate swap contract with
notional amounts totalling US$25,000. The fair value of foreign
exchange forward contracts and interest rate swap contract at
December 31, 2007 was negative US$3,357 and positive
US$525, respectively. Consequently, the Group incurred a net
loss on foreign exchange forward contracts of US$3,357 and a net
gain on interest rate swap contract of US$507 during the year
ended December 31, 2007, which were recorded as foreign
currency exchange loss and an offset against interest expense,
respectively.
(o)
Revenue
recognition
Sales represent the invoiced value of products sold and services
rendered, net of value added taxes (VAT). The Group records
revenue from the sale of silicon wafers and other materials when
the products are delivered and title transfers, the risks and
rewards of ownership have been transferred to the customer, the
fee is fixed and determinable and collection of the related
receivable is reasonably assured. For domestic sales, the
majority of the Company’s contracts provide that products
are considered delivered when they reach customer’s
destination and are signed-for by the customer. For export
sales, products are considered delivered when the goods have
passed over the ship’s rail at the named port of shipment.
The customer bears all costs and risks of loss or damage to the
goods from that point. A majority of the Group’s sales to
customers require the customers to prepay before delivery has
occurred. Such prepayments are recorded as advances from
customers in the Group’s consolidated financial statements,
until delivery has occurred. Advances from customers of which
the deliveries of goods are expected to occur after twelve
months are classified as non-current liabilities in the
Group’s consolidated balance sheets as at year end dates.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
Generally, no warranty is provided to customers except pursuant
to a short period ranging from 7 to 15 days for sales
return. Wafer products are standard and the Group conducts
rigorous quality control and testing procedures to ensure that
the finished wafers meet the standard quality requirements
before the product is shipped. The Group estimates the amount of
sales returns and the cost of replacement products based on
historical return information, as the Group believe they are the
primary indicator of possible future returns.
The Group recognizes revenue for processing services when the
services are completed, which is generally evidenced by delivery
of processed products to the customers.
In the PRC, VAT of 17% on invoice amount is collected in respect
of the sales of goods on behalf of tax authorities. VAT
collected from customers, net of VAT paid for purchases, is
recorded as a liability in the consolidated balance sheets until
it is paid to the authorities.
(p)
Buy/sell
arrangements
The Group had raw materials purchases transactions and finished
goods sales transactions with the same counterparty. Each of
these sales and purchases transactions with the same
counterparty are not legally contingent upon each other. These
sales and purchases transactions were not conducted
simultaneously and there was no direct linkage between any one
or group of buy transactions with any one or group of sell
transactions. There was also no correlation between the value of
raw materials received and the value of finished goods delivered
pursuant to the contractual arrangement. Each buy or sell
transaction was separately documented, transacted at the fair
market value prevailing at that time and gross-cash settled,
with no specific legal right to offset in respect of the
obligations between counterparties. These buy and sell
transactions with the same counterparty were recognised and
presented separately as sales and cost of goods sold in the
Group’s consolidated financial statements. Raw materials
purchases and finished goods sales with the same counterparty
were recorded at their respective contract price, which
represented their prevailing fair market value.
(q)
Shipping
and handling
Costs to ship products to customers are included in selling
expenses in the consolidated statement of operations. Amounts
billed to customers, if any, to cover shipping and handling are
included in net sales. Cost to ship products to customers were
US$ nil, US$63 and US$266 for the period from July 5, 2005
to December 31, 2005 and the years ended December 31,2006 and 2007, respectively.
(r)
Research
and development costs
Research and development costs are expensed as incurred. JXLDK
has a research and development team to enhance product quality
and to achieve a more efficient production process. In addition,
the Group has a joint research and development program with
Shanghai Jiaotong University to focus on developing quality
consumables and supplemental equipment.
(s)
Advertising
expenses
Advertising expenses are charged to the consolidated statement
of operations in the period incurred. The Group incurred
advertising expenses of US$138 and US$516 for the years ended
December 31, 2006 and 2007 respectively.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(t)
Government
subsidy
Government subsidies are recognized when received and when all
the conditions for their receipt have been met. Subsidies that
compensate the Group for expenses incurred are recognized as a
reduction of expenses in the consolidated statement of
operations in the same period in which the related expenses are
incurred. Subsidies that are not associated with expenses
incurred or to be incurred are recognized as income. Subsidies
for the acquisition of equipment are recorded as a liability
until earned and then offset against the related capital assets.
A subsidy of US$240 was received from local government during
2006 to compensate JXLDK’s research and development
expenses and was recorded as a reduction of research and
development expense.
Xinyu Industry Development District and JXLDK reached an
agreement that for electricity costs JXLDK pays at the market
value of US$0.08 per kwh, the district will provide JXLDK with
an unconditional subsidy of US$0.03 per kwh. JXLDK received
subsidies of electricity costs of US$808 and US$3,084 for years
ended December 31, 2006 and 2007 respectively, which were
recorded as a reduction to cost of goods sold.
JXLDK received subsidies of US$1,268 and US$3,461 for the years
ended December 31, 2006 and 2007 respectively from the
local government authority as an incentive for development of
the wafer industry in Xinyu, which were recorded as other income
as there were no specific expenses required to be incurred by
the Group to obtain the subsidies. JXLDK also received a tax
refund of US$516 from Xinyu Tax Bureau for purchases of domestic
equipment during the year ended December 31, 2007, which
was recorded as a reduction to acquisition cost of the equipment.
(u)
Income
taxes
Income taxes are accounted for under the asset and liability
method. Deferred tax assets and liabilities are recognized for
the future tax consequences attributable to differences between
the financial statement carrying amounts of existing assets and
liabilities and their respective tax bases and operating loss
and tax credit carry forwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to
apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled. The effect
on deferred tax assets and liabilities of a change in tax rates
is recognized in income in the period that includes the
enactment date. A valuation allowance is provided to reduce the
carrying amount of deferred tax assets if it is considered more
likely than not that some portion, or all, of the deferred tax
assets will not be realized.
Effective January 1, 2007, the Group adopted Financial
Accounting Standards Board (“FASB”) Interpretation
No. 48, Accounting for Uncertainty in Income
Taxes — an Interpretation of FASB Statement
No. 109 (“FIN 48”). Management
determines whether it is more likely than not that a tax
position will be sustained upon examination, including
resolution of any related appeals or litigation processes, based
on the technical merits of the position. In evaluating whether a
tax position has met the more-likely-than-not recognition
threshold, management presumes that the position will be
examined by the appropriate taxing authority that has full
knowledge of all relevant information. In addition, a tax
position that meets the more-likely-than-not recognition
threshold is measured to determine the amount of benefit to be
recognized in the financial statements. The tax position is
measured at the largest amount of benefit that is greater than
50 percent likely of being realized upon ultimate
settlement. The Group has elected to classify interest and
penalties related to an uncertain tax position, if and when
required, as part of income tax expense in the consolidated
statements of operations. The initial adoption of FIN 48
did not have any impact on the Group’s consolidated
financial position or results of operations. Additional
disclosures required by FIN 48 are included in note 12.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(v)
Share-based
compensation
The Group has adopted SFAS No. 123R,
“Share-based Payment”, which requires that
share-based payment transactions with employees, such as share
options, be measured based on the grant-date fair value of the
equity instrument issued and recognized as compensation expense
over the requisite service period, with a corresponding addition
to additional paid-in capital. Under this method, compensation
cost related to employee share options or similar equity
instruments is measured at the grant date based on the fair
value of the award and is recognized over the period during
which an employee is required to provide service in exchange for
the award, which generally is the vesting period.
The Group accounts for equity instrument issued to non-employee
vendors in accordance with the provisions of Emerging Issues
Task Force (“EITF”) Issue
No. 96-18,
“Accounting for Equity Instruments That are Issued to
Other Than Employees for Acquiring, or in Conjunction with
Selling, Goods or Services.” All transactions in which
goods or services are received in exchange for equity
instruments are accounted for based on the fair value of the
consideration received or the fair value of the equity
instrument issued, whichever is more reliably measurable. The
measurement date of the fair value of the equity instrument
issued is the date on which the counterparty’s performance
is completed.
(w)
Embedded
beneficial conversion of convertible instruments
In accordance with the provisions of EITF Issue
No. 98-5
“Accounting for Convertible Securities with
BeneficialConversion Features or Contingently Adjustable
Conversion Ratios” and EITF Issue
No. 00-27
“Application of Issue
No. 98-5
to Certain Convertible Instruments”, the Group
recognizes and measures the embedded beneficial conversion
feature of convertible instruments by allocating a portion of
the proceeds from the convertible instruments equal to the
intrinsic value of that feature to additional paid-in capital.
The intrinsic value of the embedded beneficial conversion
feature is calculated at the commitment date as the difference
between the effective conversion price and the fair value of the
common stock or other securities into which the security is
convertible, multiplied by the number of shares into which the
security is convertible. Any recorded discount resulting from
the allocation of proceeds to the beneficial conversion feature
is recognized as interest expense for convertible instruments in
the form of debt or as a deemed dividend for redeemable
convertible preferred shares over the period from its date of
issuance to its stated mandatory redemption date or to its
earliest conversion date if the convertible instruments do not
have a stated redemption date. Unamortized discount remaining at
the date when the convertible instruments are converted into
their respective underlying securities are immediately
recognized as interest expense or as a deemed dividend, as
appropriate. Changes to the conversion terms that would be
triggered by future events not controlled by the Group are
accounted for as contingent conversion options, and the
intrinsic value of the such contingent conversion options will
not be recognized until and unless the triggering event occurs.
(x)
Employee
benefit plans
As stipulated by the regulations of the PRC, the Group’s
PRC subsidiaries, JXLDK, LDKPV and LDKSP participate in various
defined contribution plans organized by municipal and provincial
governments for its employees. These companies are required to
make contributions to these plans at a rate of 29% on a standard
salary base as determined by the local Social Security Bureau,
to a defined contribution retirement scheme organized by the
local Social Security Bureau in respect of the retirement
benefits for the Group’s employees. Under these plans,
certain pension, medical and other welfare benefits are provided
to the employees. The Group has no other material obligation for
the payment of employee benefits associated with these plans
beyond the annual contributions described above. Employee
benefits associated with these plans are expensed when incurred.
The total amounts for
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
such employee benefits, which were expensed as incurred, were
US$220 and US$614 for the years ended December 31, 2006 and
2007 respectively.
(y)
Earnings
(loss) per share
Basic earnings (loss) per ordinary share is computed by dividing
net (loss) income allocated to ordinary shareholders by the
weighted average number of ordinary shares outstanding during
the year using the two-class method. Under the two-class method,
net (loss) income is allocated between ordinary shares and other
participating securities based on dividends declared (or
accumulated) and participating rights in undistributed earnings.
The Company’s Series A, Series B and
Series C redeemable convertible preferred shares
(note 14) are participating securities since the
holders of these securities may participate in dividends with
ordinary shareholder(s) based on a pre-determined formula.
Diluted earnings (loss) per share is calculated by dividing net
(loss) income available to ordinary shareholders as adjusted for
the effect of dilutive ordinary equivalent shares, if any, by
the weighted average number of ordinary shares and dilutive
ordinary share equivalents outstanding during the year. Ordinary
share equivalents consist of the ordinary shares issuable upon
the conversion of the convertible preferred shares (using the
if-converted method) and ordinary shares issuable upon the
exercise of outstanding share options (using the treasury stock
method). Potential dilutive securities are not included in the
calculation of dilutive earnings per share if the effect is
anti-dilutive.
(z)
Segment
reporting
The Group uses the management approach in determining reportable
operating segments. The management approach considers the
internal organization and reporting used by the Group’s
chief operating decision maker for making operating decisions,
allocating resources and assessing performance as the source for
determining the Group’s reportable segments. Management,
including the chief operating decision maker, reviews operating
results solely by monthly revenue (but not by sub-product type)
and operating results of PRC wafer production operations, the
only operating subsidiaries in the PRC. As such, management has
determined that PRC wafer production operations is the
Group’s only operating segment, as that term is defined by
Statement of Financial Accounting Standard No. 131,
Disclosure about Segments of an Enterprise and Related
Information.
(aa) Start-up
costs
The Group expensed all costs incurred in connection with
start-up
activities, including preproduction costs associated with new
manufacturing facilities. Preproduction costs including the
design, formulation and testing of new products or process
alternatives are included in research and development expenses.
Preproduction costs including facility and employee costs
incurred in connection with constructing new manufacturing
plants are included in general and administrative expenses. As
of December 31, 2007, LDKPV and LDKSP were in the
development stage.
(ab) Recently
issued accounting pronouncement
In September 2006, the FASB issued SFAS No. 157,
“Fair Value Measurements”.
SFAS No. 157 defines fair value, establishes a
framework for measuring fair value in generally accepted
accounting principles and expands disclosures about fair value
measurements. SFAS No. 157 is effective for financial
statements issued for fiscal years beginning after
November 15, 2007 with earlier application encouraged. The
Group does not expect the adoption of this statement to have a
material effect on the Group’s consolidated financial
statements.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
In February 2007, the FASB issued SFAS No. 159,
“The Fair Value Option for Financial Assets and Financial
Liabilities”, including an amendment of
SFAS No. 115, which allows an entity to choose to
measure certain financial instruments and liabilities at fair
value. Subsequent measurements for the financial instruments and
liabilities an entity elects to measure at fair value will be
recognized in earnings. SFAS No. 159 also establishes
additional disclosure requirements. SFAS No. 159 is
effective for fiscal years beginning after November 15,2007, with early adoption permitted provided that the entity
also adopts SFAS No. 157. Management of the Group has
elected not to adopt this optional standard.
In December 2007, the FASB issued FASB Statement No. 141R,
Business Combinations (Statement 141R) and FASB Statement
No. 160, Noncontrolling Interests in Consolidated Financial
Statements — an amendment to ARB No. 51
(Statement 160). Statements 141R and 160 require most
identifiable assets, liabilities, noncontrolling interests, and
goodwill acquired in a business combination to be recorded at
“full fair value” and require noncontrolling interests
(previously referred to as minority interests) to be reported as
a component of equity, which changes the accounting for
transactions with noncontrolling interest holders. Both
Statements are effective for periods beginning on or after
December 15, 2008, and earlier adoption is prohibited.
Statement 141R will be applied to business combinations
occurring after the effective date. Statement 160 will be
applied prospectively to all noncontrolling interests, including
any that arose before the effective date. The Group is currently
evaluating the impact of adopting Statement 141R and Statement
160 on its results of operations and financial position.
The Group had raw materials of US$2,859 and US$5,029 consigned
to third parties at December 31, 2006 and 2007 respectively.
Raw materials consist of a variety of polysilicon materials,
including solar-grade virgin polysilicon, recyclable polysilicon
materials and silicon powder.
Write-downs of finished goods inventories to net realizable
value were US$4,170 during the year ended December 31, 2007
(nil in prior periods), which are included in cost of goods sold.
(4)
PREPAYMENTS
TO SUPPLIERS
In order to secure a stable supply of silicon materials, the
Group makes prepayments to certain suppliers. Prepayments of
which the Group expects to take delivery of the inventory after
the next twelve months are classified as non-current assets in
the Group’s consolidated balance sheet as at year end
dates. Prepayments to suppliers are reclassified to inventories
when the Group applies the prepayment to related purchases of
silicon materials. Such
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
reclassifications totaling US$144,482 and US$570,878 were not
reflected in the Group’s consolidated cash flows from
operations for the years ended December 31, 2006 and 2007,
respectively.
Receivable from the Group’s executives and employees
—
21,742
VAT recoverable
1,548
5,738
Others
114
2,345
1,662
29,825
During the year ended December 31, 2007, certain of the
Group’s executives and employees exercised certain share
options which vested in August 2007. Pursuant to the PRC tax
regulations, the income derived from the exercise of the share
options is subject to individual income tax, which should be
withheld by the Group from these executives and employees for
payment to the PRC tax authorities. As of December 31,2007, the Group had an outstanding receivable from these
executives and employees and payable to the PRC tax authorities
of US$21,742 in relation to the individual income tax
liabilities arising from the exercise of share options by these
executives and employees, which are included in other current
assets and other payables (see note 10), respectively.
(6)
PROPERTY,
PLANT AND EQUIPMENT, NET
Property, plant and equipment, net consist of the following:
Construction in progress as at December 31, 2007 includes
US$60,333 (2006: US$11,844) of furnaces, wire saws and other
received equipment pending installation. The installation of
these machines and equipments is normally completed within one
month after they are received by the Group.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
Technical know-how was acquired by JXLDK from equipment
manufacturers for operation of the equipment.
Amortization expenses of the above technical know-how was US$93
and US$139 for the years ended December 31, 2006 and 2007
respectively. For each of the next five years, annual
amortization expense of the technical know-how is expected to be
US$139.
(8)
LAND USE
RIGHTS
Land use rights represent fees paid to the government and a
company controlled by Mr. Peng (see note 20) to
obtain the rights to use certain land over periods ranging from
49.5 to 50 years in the PRC.
Current installments of long-term bank borrowings (note (b))
5,000
14,577
56,765
264,101
The short-term bank borrowings outstanding as of
December 31, 2007 carry a weighted average interest rate of
6.524% (2006: 5.876%). The short-term bank borrowings have
maturity terms ranging from one to twelve months and interest
rates ranging from 5.564% to 7.290% (2006: 5.022% to 6.968% per
annum), except for short-term bank loans of US$1,460 and
US$1,070 that originated in late December 2007 and have an
interest rate of 11.280% and 11.420% respectively. The proceeds
from these short-term bank borrowings are for working capital
purposes. None of the short-term bank borrowings contain
financial covenants.
Bank loans of US$224,879 were secured by certain of JXLDK’s
buildings, land use rights, equipment, bank deposits and raw
materials with the carrying amounts of US$2,564, US$10,161,
US$108,557, US$111,094 and US$68,935, as of December 31,2007 respectively as well as buildings and land use rights owned
by a company controlled by Mr. Peng.
A discounted bill of US$816 was included in secured bank
borrowings as of December 31, 2006 (see note 13(d)).
Through Bank of China, Xinyu Branch, JXLDK borrowed US$5,139
from Jiangxi Liouxin Industry Co., Ltd. (“JXLXI”), a
company controlled by Mr. Peng, in December 2007 through an
entrusted loan agreement. The entrusted loan was included in
unsecured bank borrowings as of December 31, 2007. Among
the remaining
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
unsecured bank borrowings, US$6,845 was guaranteed by companies
controlled by Mr. Peng, Jiangsu Liou Xin Industrial Park
Co., Ltd., JXLXI and SZ Liouxin.
As of December 31, 2007, the Group has total revolving
credit of US$270,278 (2006: US$25,612) and unused credit of
US$137,936 (2006: US$7,371).
In March 2006, the Group borrowed US$ 10,245 from China
Construction Bank of which US$5,202 is repayable in March 2008
and US$5,750 is repayable in March 2009. The loan carries
variable interest with interest rate repriced annually with
reference to the prevailing base lending rate pronounced by
People’s Bank of China (“PBOC”). The effective
interest rate of the loan was 7.227% as of December 31,2007 (2006: 6.336%). Interest is payable semi-annually. The loan
is guaranteed by SZ Liouxin and US$9,468 is secured by the
JXLDK’s plant and machinery with carrying amounts of
US$23,497 as of December 31, 2007.
In December 2006, the Group borrowed US$ 25,000 from China
Development Bank, which is repayable in 5 equal annual
installments of US$5,000 through December of 2011. The loan
carries variable interest with interest rate repriced daily with
reference to the prevailing six-month US Libor rate. The
effective interest rate of the loan was 6.894% as of
December 31, 2007 (2006: 6.870%). Interest is payable
monthly. The loan is secured by JXLDK’s plant and machinery
and land use rights with carrying amounts of US$51,079 and
US$3,593 as of December 31, 2007 respectively and is
guaranteed by the Company’s shareholders, Mr. Peng and
Ms. Zhou Shan.
In February 2007, the Group borrowed US$8,750 from Bank of
China, which is payable in two equal annual installments of
US$4,375 each through February of 2009. The loan carries
variable interest with interest rate repriced quarterly with
reference to the prevailing two-year US$ loan rate pronounced by
Bank of China. The effective interest rate of the loan was
8.731% as of December 31, 2007. Interest is payable
quarterly. The loan is secured by certain of JXLDK’s raw
materials and is guaranteed by SZ Liouxin, JXLXI and
Mr. Peng.
Future principal repayments on the long-term bank borrowing are
as follows:
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(10)
ACCRUED
EXPENSES AND OTHER PAYABLES
Components of accrued expenses and other payables are as follows:
As of December 31, 2007, the Group had outstanding
withholding individual income tax payable of US$21,742 arising
from the Group’s withholding tax obligation in relation to
the income derived from the exercise of share options by certain
of the Group’s executives and employees pursuant to PRC tax
regulations (see note (5)). In February 2008, the Group obtained
a notice from the relevant PRC Tax Authority granting a deferral
of the payment of such withholding tax obligation until the
Group’s executives and employees sell their shares, at
which time the Group will withhold the tax and remit it on
behalf of the employees. Due to the open nature of the payment
timing, the Group has classified the payable as a current
liability as at December 31, 2007.
(11)
INTEREST
COSTS
The following is a summary of the Group’s interest costs
incurred during 2006 and 2007:
Under the current laws of the Cayman Islands, the Company is not
subject to tax on its income or capital gains. In addition, upon
any payment of dividends by the Company, no Cayman Islands
withholding tax is imposed.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
People’s
Republic of China
Pursuant to the income tax law of the PRC concerning foreign
investment and foreign enterprises (the “FEIT Law”),
the applicable income tax rate through December 31, 2007 of
JXLDK was 33%. Also, JXLDK is entitled to exemption from income
tax for at least 2 years starting from the 2006 calendar
year and is entitled to a 50% tax reduction for the succeeding
3 years beginning from 2008. On March 16, 2007, the
National People’s Congress of the PRC passed the Corporate
Income Tax Law (the “CIT Law”) which became effective
January 1, 2008 when the FEIT Law was ended. The CIT Law
adopts a uniform tax rate of 25% for all enterprises, including
foreign-invested enterprises. Pursuant to the grandfathering
arrangement under the CIT Law, JXLDK can continue to enjoy the
50% tax reduction for the years from 2008 to 2010. Accordingly,
JXLDK will be subject to a reduced CIT rate of 12.5% in the
years from 2008 to 2010 and 25% thereafter.
Under FEIT Law, the applicable income tax rate of LDKPV and
LDKSP in 2007 was 33%. Effective January 1, 2008, LDKPV and
LDKSP will be subject to income tax rate of 25% pursuant to the
CIT Law.
HK
SAR
No provision has been made for Hong Kong Profits Tax in any
period, as LDK International did not have assessable profits
subject to Hong Kong Profits Tax during the year.
United
States
No provision has been made for Federal or State income taxes in
the United States in any period, as LDK USA did not have any
income subject to income tax in the United States.
The income tax benefit attributable to earnings (losses) from
operations, which is substantially derived from PRC sources,
consists of:
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
The actual income tax benefit differed from the amounts computed
by applying the statutory PRC enterprise income tax rate of 33%
to earnings (losses) before income taxes as a result of the
following:
Without the tax holiday the Group’s income tax expense
would have increased by US$12,387 and US$53,316 for the years
ended December 31, 2006 and 2007, respectively, and the
basic and diluted net income per ordinary share for such periods
would be decreased as follows:
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
The tax effects of temporary differences that give rise to
significant portions of the deferred income tax assets are
presented below. There were no deferred tax liabilities as of
December 31, 2007.
In assessing the realizability of deferred tax assets,
management considers whether it is more likely than not that
some portion or all of the deferred tax assets will not be
realized. As of December 31, 2007, we made full valuation
allowance against the deferred tax asset of US$1,132 recognized
for the Group’s net operating loss carryforwards attribute
to LDK USA and LDK International. The ultimate realization of
deferred tax assets is dependent upon the generation of future
taxable income during the periods in which those temporary
differences become deductible or utilized. Management considers
projected future taxable income and tax planning strategies in
making this assessment. Based upon an assessment of the level of
historical taxable income and projections for future taxable
income over the periods in which the deferred tax assets are
deductible or can be utilized, management believes it is more
likely than not that the Group will realize the benefits of
these deductible differences, net of the existing valuation
allowance as of December 31, 2007. The amount of the
deferred tax assets considered realizable; however, could be
reduced in the near term if estimates of future taxable income
are reduced.
As of December 31, 2007, the Group has net operating loss
carryforwards of approximately US$ 2,976 and US$1,798 for LDK
International and LDK USA, respectively, for tax purposes. Tax
losses of LDK International can be carried forward indefinitely.
Tax losses of LDK USA as of December 31, 2007 will expire
in various amounts through 2027.
As of January 1, 2007 and for the twelve months ended
December 31, 2007, the Group has no unrecognized tax
benefit relating to uncertain tax positions. Also, the Group
does not expect that the amount of unrecognized tax benefits
will increase significantly within the next 12 months. No
interest or penalties have been accrued at the date of initial
adoption of FIN 48 and as of December 31, 2007.
The Group’s subsidiaries file their income tax returns in
the PRC, Hong Kong and United States. According to the PRC Tax
Administration and Collection Law, the statute of limitations is
three years if the underpayment of taxes is due to computational
errors made by the taxpayer or the withholding agent. The
statute of limitations will be extended to five years under
special circumstances, which are not clearly defined. In the
case of a related party transaction, the statute of limitation
is 10 years. There is no statute of limitation in the case
of tax evasion. Accordingly, the income tax returns of the
Group’s operating subsidiaries in the PRC for the years
ended December 31, 2005 through 2007 are open to
examination by the PRC state and local tax authorities. The
income
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
tax returns of LDK International are open to audit for the years
ended December 31, 2006 and 2007 under the statute of
limitations established by the Hong Kong Inland Revenue
ordinance.
The PRC tax system is subject to substantial uncertainties.
There can be no assurance that changes in PRC tax laws or their
interpretation or their application will not subject the
Group’s PRC entities to substantial PRC taxes in the future.
(13)
COMMITMENTS
AND CONTINGENCIES
(a)
Capital
commitments
Capital commitments outstanding at December 31, 2007 not
provided for in the financial statements were as follows:
Production line construction projects
566,495
(b)
Purchase
commitments
The Group has entered into several purchase agreements with
certain suppliers whereby the Group is committed to purchase a
minimum amount of raw materials to be used in the manufacture of
its products:
On October 4, 2007, the Company announced that its former
financial controller, Charley Situ, who was terminated for cause
on September 25, 2007, had communicated to LDK’s
management and others subsequent to his termination alleged
inconsistencies in LDK’s inventory reporting as of
August 31, 2007 (“Situ allegations”). On
October 9, 2007 and through January 22, 2008, the
Group has been named as defendant, along with certain of its
senior executives, in a number of class action complaints and a
derivative complaint in the United States pertaining to the Situ
allegations (“Complaints”). These Complaints further
allege that management of the Group had knowingly and
intentionally deceived the plaintiffs through misleading
financial reporting by overstating its inventories of
polysilicon.
In response to the Situ allegations, the Company’s Audit
Committee called for an independent investigation into the
matter and engaged outside professionals, including legal
counsel, forensic accountants from a big four accounting firm
and two technical polysilicon experts to carry out this
investigation. Upon completion of this independent
investigation, the Company’s Audit Committee was informed
that no material errors were found with the Group’s stated
silicon inventory quantity as of August 31, 2007, and that
the Group was using each of its various types of silicon
feedstock in the production of its multicrystalline solar
wafers, and that a provision for obsolete, unusable or excess
silicon feedstock was not required. Subsequently, the United
States Securities and Exchange Commission (“SEC”)
initiated an investigation into the Situ allegations. Upon
completion of the Audit Committee’s independent
investigation, the results were presented to the SEC. On
March 24, 2008, the SEC staff informed the Company that it
did not intend to recommend any enforcement action by the
Commission.
The various class action complaints were consolidated into a
Consolidated Class Action Complaint filed on March 10, 2008
in U.S. Federal Court in Northern California. The Company
intends to file motions to dismiss each complaint in April 2008
and anticipates judgments on these motions by the respective
Courts in May or June of
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
2008. Based on the results of this independent investigation,
the decision by the SEC and consultation with its legal counsel,
management believes it is not probable that an unfavorable
outcome will occur upon the ultimate resolution of the pending
litigation for this matter. Further, it is not possible for
management to reasonably estimate the amount of loss, if any,
the Group would incur in the event of an unfavorable outcome
stemming from the resolution of this uncertainty.
(d)
Outstanding
bills receivable discounted
As of December 31, 2006, the Group has retained a recourse
obligation of US$816 in respect of a bill receivable discounted
with a bank. The recourse obligation represents the amount the
Group will be obligated to repay to the extent that the issuing
bank who has guaranteed payment does not honor the bill
receivable upon maturity. The discounted bill of US$816 as of
December 31, 2006 was included in secured short-term loans
(See note 9 (a)). There are no outstanding discounted bills
as at December 31, 2007.
(14)
REDEEMABLE
CONVERTIBLE PREFERRED SHARES
Pursuant to the Series A redeemable convertible preferred
shares purchase agreement dated July 28, 2006
(“Series A Agreement”), the Company issued
3,000,000
Series A-1
redeemable convertible preferred shares
(“Series A-1
Shares”) on July 31, 2006 as a result of conversion of
the US$8,000 exchangeable notes by the holders. The Company also
issued 1,580,000
Series A-2
redeemable convertible preferred shares
(“Series A-2
Shares”) to a group of unrelated investors at US$4.43 per
share for total cash consideration of US$7,000. In conjunction
with the Series A redeemable convertible preferred shares
purchase agreement, the holders of
Series A-1
and A-2
preferred shares received warrants on July 28, 2006. Also,
the Company issued 200,000 share options to the holders of
Series A-1
preferred shares. Pursuant to the Series A Agreement, as
amended by the third amended and restated memorandum of
association dated December 19, 2006, the holders of both
Series A-1
Shares and
Series A-2
Shares (collectively “Series A Shares”) had the
right to redeem the Series A Shares after 36 months of
the date of issuance of Series C redeemable convertible
preferred shares at the option of the holders of Series A
Shares then outstanding if a Qualified IPO had not occurred. A
Qualified IPO refers to an initial public offering on a
Qualified Exchange that values the Company at no less than
US$1,210,000 immediately prior to the initial public offering
with a per share offering price of no less than US$11.00 and
that results in aggregate proceeds to the Company of at least
US$300,000.
Pursuant to the Series B redeemable convertible preferred
shares purchase agreement dated September 15, 2006
(“Series B Agreement”), the Company issued
8,000,000 Series B redeemable convertible preferred shares
(“Series B Shares”) on September 28, 2006 to
a group of unrelated investors at US$6 per share (the
“Series B issue price”) for total cash
consideration of US$48,000. Pursuant to the Series B
Agreement, as amended by the third amended and restated
memorandum of association dated December 19, 2006, the
holders of Series B Shares had the right to redeem the
Series B Shares after 36 months of the date of
issuance of Series C redeemable convertible preferred
shares at the option of the holders of Series B Shares then
outstanding if a Qualified IPO had not occurred.
Pursuant to the Series C redeemable convertible preferred
shares purchase agreement dated December 15, 2006
(“Series C Agreement”), the Company issued
3,000,000 Series C redeemable convertible preferred shares
(“Series C Shares”) on December 19, 2006 to
a group of unrelated investors at US$7.5 per share (the
“Series C issue price”) for total cash
consideration of US$22,500. The holders of Series C Shares
had the right to redeem the Series C Shares after
36 months of the date of issuance at the option of the
holders of Series C Shares then outstanding if a Qualified
IPO had not occurred.
In the event of a redemption under the respective redemption
right of Series A, Series B and Series C
preferred shares agreement, the Company shall redeem all of the
outstanding preferred shares at a redemption price equal to
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
150% of the respective issue price of the preferred shares, plus
any declared, accrued but unpaid dividends and interests
thereon, proportionally adjusted for share subdivisions, share
dividends, reorganizations, reclassifications, consolidations or
mergers. The accretion to the redemption value in total for
Series A, Series B and Series C preferred shares
amounted to US$2,729 and US$4,937 for the years ended
December 31, 2006 and 2007 respectively, which is reflected
as a reduction to net income to arrive at net income available
to ordinary shareholders in the accompanying consolidated
statement of operations. Total direct external incremental costs
of issuing the securities of US$103, US$78 and US$40 were
charged against the proceeds of the Series A, Series B
and Series C Shares, respectively.
All holders of preferred shares had the right to convert all or
any portion of their holdings into ordinary shares of the
Company at the then applicable conversion ratio (the
“Conversion ratio”) at any time after the date of
issuance to the closing of a Qualified IPO. In addition, each
preferred share was automatically convertible into one or more
ordinary shares, subject to the conversion ratio adjustment as
set out in the respective preferred shares agreement upon the
consummation of a Qualified IPO.
Management evaluated the conversion feature embedded in these
preferred share agreements to determine if there was a
beneficial conversion feature. A calculation was performed to
determine the intrinsic value of the difference between the most
favorable conversion price and the fair market value of the
underlying securities (ordinary shares) of the Company issuable
upon the conversion of the preferred shares at the respective
commitment dates. Based on the calculation, management has
determined that there was no embedded beneficial conversion
feature attributable to the preferred shares except for the
Series A-1
Shares, since the initial conversion price of the preferred
shares is equal to the preferred shares issue price, which was
higher than the fair value of the Company’s ordinary shares
at the respective commitment dates determined by management
based on valuation performed by a third party independent
appraiser, Sallmanns (Far East) Limited. For the
Series A-1 shares,
the proceeds received from the issuance of Series A Shares
were first allocated to the warrants and share options issued to
the holders of
Series A-1
Shares. Management determined that the initial conversion price
of
Series A-1
Shares was lower than the fair value of the Company’s
ordinary shares at the commitment date based on the valuation
performed by Sallmanns. The computed intrinsic value of the
conversion feature of US$1,568 was recorded as a deemed dividend
at the date of issuance because the Series A Shares were
convertible at issuance date. In addition, under the provisions
of EITF Issue
No. 00-27
“Application of Issue
No. 98-5
to Certain Convertible Instrument”, management
determined that the contingent beneficial conversion feature
relating to the Conversion ratio adjustment will be recognized
only when the contingency is resolved and with respect of the
dilution adjustment, upon the issuance of additional ordinary
shares.
In June 2007, all the redeemable convertible preferred shares
were converted into 15,580,000 ordinary shares of the Company
upon the consummation of the Company’s IPO.
(15)
ORDINARY
SHARES
As at December 31, 2006 and 2007, there was 134,000,000 and
499,580,000 authorized ordinary shares of the Company with
US$0.10 par value per share (adjusted for the
ten-for-one
share split effected on July 18, 2006).
During 2006, the Company issued 75,000,000 ordinary shares at
par value of US$0.10 per share (adjusted for the
ten-for-one
share split effected on July 18, 2006);
In June 2007, the Company issued 14,007,700 American Depositary
Shares (“ADSs”), representing 14,007,700 ordinary
shares (see note (1)). The Company’s ADSs are quoted on the
New York Stock Exchange;
In June 2007, all issued and outstanding Series A, B and C
redeemable convertible preferred shares were converted into
15,580,000 ordinary shares on a one to one basis upon the
completion of the Company’s IPO; and
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
In August 2007, 1,457,000 of vested stock options granted to
executives and employees were exercised, resulting in the
issuance of 1,457,000 ordinary shares.
(16)
STATUTORY
RESERVE
Under the Law of the PRC on Enterprises with Wholly Owned
Foreign Investment, the Company’s subsidiaries in the PRC
are required to allocate at least 10% of their after tax
profits, after making good of accumulated losses as reported in
their PRC statutory financial statements, to the general reserve
fund and have the right to discontinue allocations to the
general reserve fund if the balance of such reserve has reached
50% of their registered capital. A transfer of US$3,623 and
US$15,074 from retained earnings to statutory reserve was
recorded for the years ended December 31, 2006 and 2007
respectively.
(17)
SHARE
OPTION
Share
options to employees
On August 1, 2006, the Board of Directors of the Company
approved the granting of 6,230,000 share options to the
Company’s executives and employees at an exercise price of
US$4.45 with a contractual term of five years and vesting period
of no less than three years, with no more than one-third of the
options to be vested each year. During the year ended
December 31, 2007, 1,457,000 share options granted to the
Company’s executives and employees were exercised into
ordinary shares.
On February 6, 2007, the Board of Directors of the Company
approved the granting of 2,071,900 share options to the
Company’s employees at an exercise price of US$9.00 with a
contractual term of five years and vesting period of no less
than three years, with no more than one-third of the options to
be vested each year.
On April 17, 2007, the Board of Directors of the Company
approved the granting of 100,000 share options to the
Company’s non-executive director, at an exercise price of
US$9.00 with a contractual term of five years and vesting period
of no less than three years, with no more than one-third of the
options to be vested each year.
Pursuant to the Board of Directors’ approval on
April 17, 2007, 350,900 share options were granted on
May 14, 2007 to the Company’s employees at an exercise
price of US$25.00 with a contractual term of five years and
vesting period of no less than three years, with no more than
one-third of the options to be vested each year.
Pursuant to the Board of Directors’ approval on
April 17, 2007, 100,000 share options were granted on
May 31, 2007 to an independent director at an exercise
price of US$9.00 with a contractual term of five years and
vesting period of no less than three years, with no more than
one-third of the options to be vested each year.
On July 6, 2007, the Board of Directors of the Company
approved the granting of 633,400 share options to the
Company’s employees at an exercise price of US$33.96 with a
contractual term of five years and vesting period of no less
than three years, with no more than one-third of the options to
be vested each year.
On October 17, 2007, the Board of Directors of the Company
approved the granting of 200,000 share options to an independent
director at an exercise price of US$9.00 with a contractual term
of two years and vesting period from October 17, 2007 to
July 17, 2009, with 10,000 share options to be vested each
month.
On December 3, 2007, the Board of Directors of the Company
approved the granting of 734,550 share options to the
Company’s employees at an exercise price of US$29.55 with a
contractual term of five years and vesting period of no less
than three years, with no more than one-third of the options to
be vested each year.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
Share
options to non-employees
On August 1, 2006, the Board of Directors of the Company
approved the granting of 210,000 share options to the
Company’s external consultants in exchange for certain
services provided. The exercise price of the share options is
US$4.45 and the contractual term is five years. The vesting
period is no less than three years, with no more than one-third
of the options to be vested each year. During the year ended
December 31, 2007, 80,000 share options granted to an
external consultant were cancelled.
Share
options to investors
In conjunction with the
Series A-1
redeemable convertible preferred shares agreement
(note 14), the Company issued 200,000 share options to
the holders of the
Series A-1
redeemable convertible preferred shares on August 1, 2006
at an exercise price of US$4.45 with a contractual term of five
years and vesting period of one year after the grant date.
The fair value of the option award is estimated on the date of
grant using a lattice-based option valuation model that uses the
weighted average assumptions noted in the following table. Prior
to the IPO in June 2007, because the Company did not maintain an
internal market for its shares, the expected volatility was
based on the historical volatilities of comparable publicly
traded companies engaged in similar industry. The Company uses
historical data to estimate employee termination within the
valuation model. The expected term of options granted is derived
from the output of the option valuation model and represents the
period of time that options granted are expected to be
outstanding. The employees that were granted the share options
are expected to exhibit the same behavior. Since the share
options once exercised will primarily trade in the U.S. capital
market and there was no comparable PRC zero coupon rate, the
risk-free rate for periods within the contractual life of the
option is based on the U.S. Treasury Note as of the grant date.
Following the Company’s IPO, because the Company does not
have a sufficient historical transaction data to date to
calculate the volatility, the expected volatility was still
based on the historical volatilities of comparable publicly
traded companies engaged in similar industry. Other
computational methodologies and assumptions remained unchanged.
2006
2007
Expected volatility
64%
46.36%51.82%
Expected dividends
0%
0%
Expected term
3.54.5 years
0.93.2 years
Risk-free interest rate
4.9%
3.28%4.81%
Estimated fair value of underlying ordinary shares
US$4.37
US$7.98US$44.75
Prior to the initial public offering, the estimated fair value
of the underlying ordinary shares granted was determined based
on a valuation analysis performed by Sallmanns based on various
generally accepted valuation methodologies. Management
determined that the income approach was appropriate to determine
the fair value of the Company’s business.
The weighted-average grant-date fair value of options granted
during the year ended December 31, 2007 was US$9.05 (2006:
US$1.98) per share. The Company recorded non-cash share-based
compensation expense of US$9,549 (2006: US$1,612) for the year
ended December 31, 2007 in respect of share options granted
to employees, of which US$1,772 (2006: US$174) was
allocated to costs of revenues, US$5,828 (2006: US$1,281) was
allocated to general and administrative expenses, US$19 (2006:
US$ nil) was allocated to selling expenses, US$159 (2006: US$
nil) was allocated to construction in progress, and US$1,771
(2006: US$157) was allocated to
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
research and development costs. No non-cash share-based
compensation expense was incurred for the year ended
December 31, 2007 in respect of share options granted to
non-employees in 2007 (2006: US$416).
A summary of options for the year ended December 31, 2006
and 2007 is presented below:
The total intrinsic value of options exercised during the year
ended December 31, 2007 was US$ 48,765 (2006: nil).
As of December 31, 2007, there was US$36,283 (2006:
US$9,991) of total unrecognized compensation cost related to
non-vested share options. This cost is expected to be recognized
over the next 1.9 years (2006: 2.6 years). The Company
is expected to issue new shares to satisfy share option
exercises. Cash received from the exercise of options under the
share option plans during 2007 was US$6,484.
(18)
EARNINGS
(LOSS) PER SHARE
The Company issued 75,000,000 ordinary shares in connection with
the Reorganization. For the purpose of calculating basic/diluted
earnings (loss) per share as a result of the Reorganization, the
number of ordinary shares used in the calculation reflects the
issuance of ordinary shares as if it took place on July 5,2005.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
The computation of basic and diluted earnings (loss) per share
is as follows:
Income from continuing operations attributable to holders of
ordinary shares
(274
)
25,885
139,122
Plus accretion of Series A, Series B and Series C
Shares to redemption value
—
—
4,937
Numerator used in diluted earnings (loss) per share
(274
)
25,885
144,059
Shares (denominator):
Weighted average number of ordinary shares outstanding used in
computing basic earnings (loss) per share
75,000,000
75,000,000
92,673,914
Plus weighted average Series A, Series B and
Series C Shares outstanding
—
—
6,616,165
Plus incremental weighted average number of ordinary shares from
assumed conversion of stock options using the treasury stock
method
—
—
5,569,360
Weighted average number of ordinary shares outstanding used in
computing diluted earnings (loss) per share
75,000,000
75,000,000
104,859,439
Earnings (loss) per share — basic
(0.01
)
0.35
1.50
Earnings (loss) per share — diluted
(0.01
)
0.35
1.37
During the year ended December 31, 2007, the Group’s
dilutive potential ordinary shares outstanding consist of
Series A, Series B and Series C redeemable
convertible preferred shares and share options. The computation
of diluted earnings per share for the year ended
December 31, 2007 assumed conversion of the Series A,
Series B and Series C redeemable convertible preferred
shares as of January 1, 2007 because, when applying the
if-converted method, the effect of the 4,580,000, 8,000,000 and
3,000,000 ordinary shares issuable upon conversion of the
Series A, Series B and Series C redeemable
convertible preferred shares under the conversion terms of the
preferred shares agreements was dilutive. In computing diluted
earnings per share for the year ended December 31, 2007,
there was dilutive effect of outstanding share options of
5,569,360 by applying the treasury stock method because the
ordinary shares assumed to be issued upon the exercise of the
share options was more than the number of shares assumed to be
purchased at the average estimated fair value during the period.
The proceeds used for the assumed purchase include the sum of
the exercise price of the share options and the average
unrecognized compensation cost.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(19)
SIGNIFICANT
CONCENTRATIONS AND RISKS
Significant
concentrations
The carrying amounts of cash and cash equivalents, pledged bank
deposits, trade accounts receivable, prepayments and other
current assets represent the Group’s maximum exposure to
credit risk in relation to financial assets. As of
December 31, 2007, substantially all of the Group’s
cash and cash equivalents and pledged bank deposits were held in
major financial institutions located in the mainland China and
the Hong Kong Special Administrative Region, which management
believes have high credit ratings. As at December 31, 2007
cash and cash equivalents and pledged bank deposits held in
mainland China and Hong Kong financial institutions amounted to
US$218,325 in total and were denominated in the following
currencies:
US$
EURO
RMB
(000’s)
(000’s)
(000’s)
In mainland China
32,767
19,997
1,120,533
In Hong Kong
2,955
—
—
Total in original currency
35,722
19,997
1,120,533
US$ equivalent
35,722
29,202
153,401
Accounts receivable are typically unsecured and denominated in
RMB.
The following represents the amount of sales to customers that
directly or indirectly contributed, on an individual basis, 10%
or more of revenue for the years ended December 31, 2006
and 2007:
Solar-grade polysilicon feedstock is an essential raw material
in manufacturing the Group’s multicrystalline solar wafers.
The Group’s operations depend on its ability to procure
sufficient quantities of solar-grade polysilicon on a timely
basis. The significant growth of the solar wafer industry and
the competing demand and buying power of the semiconductor
industry have resulted in an industry-wide shortage in
solar-grade polysilicon. Also, polysilicon manufacturing is a
highly concentrated industry and there are only a limited number
of polysilicon producers in the world. The Group’s failure
to obtain sufficient quantities of polysilicon in a timely
manner could disrupt its operations, prevent it from operating
at full capacity or limit its ability to expand as planned,
which will reduce, and stunt the growth of its manufacturing
output and revenue.
In order to secure stable supply of polysilicon, the Group makes
prepayments to certain suppliers. Such amounts are recorded as
prepayments to suppliers on the consolidated balance sheets and
amounted to US$157,187 as of December 31, 2007 (2006:
US$37,718). The Group makes the prepayments without receiving
collateral for such payments. As a result, the Group’s
claims for such prepayments would rank only as an unsecured
claim, which
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
exposes the Group to the credit risks of the suppliers. As of
December 31, 2006 and 2007, outstanding advances made to
individual suppliers in excess of 10% of total prepayments to
suppliers are as follows:
The Group relies on a limited number of equipment suppliers for
all of its principal manufacturing equipment. There is currently
a shortage globally in much of the equipment required for its
manufacturing process and capacity expansion. If any of the
Group’s major equipment suppliers encounter difficulties in
the manufacturing or shipment of its equipment to the Group or
otherwise fail to supply equipment according to its
requirements, it will be difficult for the Group to find
alternative providers for such equipment on a timely basis which
in turn could adversely affect its production and sales.
Business
and economic risks
The Group operates in a dynamic industry with limited operating
history and believes that changes in any of the following areas
could have a material adverse effect on the Group’s future
financial position, results of operations or cash flows:
advances and new trends in new technologies and industry
standards; capital market performance and public interest in
companies operating in the PRC that are listed in the United
States; competition from other competitors; changes in certain
strategic relationships or customers relationships; regulatory
or other factors; the ability to obtain necessary financial and
other resources at commercially viable terms; the ability to
attract and retain employees necessary to support the
Group’s growth and general risks associated with the solar
industry.
The Group conducts its principal operations in the PRC and
accordingly is subject to special considerations and significant
risks not typically associated with investments in equity
securities of United States and Western European companies.
These include risks associated with, among others, the
political, economic, legal environment and social uncertainties
in the PRC, government agencies’ influence over certain
aspects of the Group’s operations and competition in the
solar industry.
In addition, the ability to negotiate and implement specific
business development projects in a timely and favorable manner
may be impacted by political considerations unrelated to or
beyond the control of the Group. Although the PRC government has
been pursuing economic reform policies for the past two decades,
no assurance can be given that the PRC government will continue
to pursue such policies or that such policies may not be
significantly altered. There is also no guarantee that the PRC
government’s pursuit of economic reforms will be consistent
or effective and as a result, changes in the rate or method of
taxation and changes in State policies may have a negative
impact on the Group’s operating results and financial
position.
Currency
risk
Substantially all of the revenue generating operations of the
Group are transacted in RMB, which is not fully convertible into
foreign currencies.
On July 21, 2005, the People’s Bank of China announced
that the PRC government reformed the exchange rate regime by
adopting a managed floating exchange rate regime based on market
supply and demand with reference to a basket of currencies. The
exchange rate of United States dollars against RMB was adjusted
to RMB8.11 per United States dollar with effect from
July 21, 2005, and the RMB has gradually appreciated
against the US dollar since then.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(20)
RELATED
PARTY TRANSACTIONS
The Group has entered into a number of transactions with related
parties. Aside from the entrusted loan arrangement described in
note 9(a), there were no outstanding balances with related
parties as of December 31, 2006 and 2007. The amounts of
transactions with the related parties for the period from
July 5, 2005 to December 31, 2005 and the years ended
December 31, 2006 and 2007 are as follows:
(i) JXLDK signed an agreement on September 22, 2005 to
borrow up to US$24,221 from Mr. Peng which carried an
average interest rate of 5.829% in September 2005. During the
period from October 27, 2005 to December 31, 2005,
JXLDK borrowed from Mr. Peng cumulative loan amount of
US$16,109 and at the same time lent US$5,478 to Saiweng
Technology (Suzhou) Co., Ltd. (“Saiweng”), a company
controlled by Mr. Peng. JXLDK borrowed an additional
US$8,112 and repaid US$5,354 to Mr. Peng in the first six
months of 2006. In March 2006, JXLDK signed an agreement with
Mr. Peng to offset US$5,478 lent to Saiweng against amounts
borrowed from Mr. Peng. In December 2006, JXLDK repaid the
remaining US$13,389 to Mr. Peng. Interest expenses incurred
amounted to US$100 and US$781 for the period from July 5,2005 to December 31, 2005 and the year ended
December 31, 2006.
(ii) JXLDK borrowed US$8,075 interest free loan from a
company controlled by Mr. Peng, SZ Liouxin, in July 2006,
which was repaid in December 2006.
(iii) Two companies controlled by Mr. Peng have
provided guarantees or collateral to JXLDK’s bankers to
secure the JXLDK’s bank loans (refer to note 9).
(iv) JXLDK borrowed an interest-free loan of US$2,561 from
JXLXI in August 2006. The loan was fully repaid in September
2006.
(v) In connection with the commencement of JXLDK’s
operation, JXLDK entered into agreements
(“Agreements”) with JXLXI to acquire rights to use
certain parcels of land from JXLXI and certain buildings
constructed by JXLXI. Pursuant to the Agreements, the
consideration for acquiring the land use rights were determined
based on its market value of US$3,273 assessed by an independent
valuer, Shanghai Orient Real Estate Appraiser Co., Ltd. The
consideration for acquiring the completed buildings and assets
under construction amounted to US$7,109 and US$637 respectively.
JXLDK prepaid US$4,664 in 2005 and paid US$6,355 in 2006 to
JXLXI for such purchase. By December 31, 2006, the legal
title of the land use right and the completed buildings had been
transferred to JXLDK.
(vi) JXLDK leased an office in Harbour Ring Plaza from SZ
Liouxin free of charge. SZ Liouxin signed the lease contract
with a monthly rental charge of US$5. The period of the contract
was from December 2005 to December 2007. The lease contract has
been renewed and will expire in December 2009.
(vii) Through Bank of China, Xinyu Branch, JXLDK borrowed
US$14,971 from JXLXI on December 22, 2006. The loan carries
an interest rate of 5.022% and was repaid in June 2007.
(viii) Through Bank of China, Xinyu Branch, JXLDK borrowed
US$5,139 from JXLXI on December 19, 2007. The loan carries
an interest rate of 5.832% and is repayable in March 2008.
(ix) As discussed in notes 5 and 10, the Group as at
December 31, 2007 recorded a US$21,742 withholding tax
liability and related receivable from certain employees and
executives arising from the exercise of stock options by such
employees and executives. The Group plans to withhold and remit
the tax when the shares are sold in the future.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(21)
GEOGRAPHIC
AND SEGMENT INFORMATION
The following table summarizes the Group’s net revenues,
based on the geographic location of the customers:
The Group’s only operating segment is wafer production
operations in the PRC. Segment profit and loss is determined
based on income before income taxes under general accepted
accounting principles in the PRC (“PRC GAAP”). Segment
assets are total assets based on PRC GAAP.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
(a)
Reconciliation
of segment income to consolidated (loss) earnings before income
tax benefit
Elimination of inter-companies balances within the Group
(2,149
)
(25,388
)
Consolidated total assets
292,719
1,309,986
(22)
LDK SOLAR
CO., LTD. (PARENT COMPANY)
Relevant PRC statutory laws and regulation permit payments of
dividends by the Company’s subsidiaries in the PRC only out
of their retained earnings, if any, as determined in accordance
with the PRC accounting standards and regulations.
Under the Law of the PRC on Enterprises with Wholly Owned
Foreign Investment, the Company’s subsidiaries in the PRC
are required to allocate at least 10% of their after tax
profits, after making good of accumulated losses as reported in
their PRC statutory financial statements, to the general reserve
fund and have the right to discontinue allocations to the
general reserve fund if the balance of such reserve has reached
50% of their registered capital. These statutory reserves are
not available for distribution to the shareholders (except in
liquidation) and may not be transferred in the form of loans,
advances, or cash dividend.
For the year ended December 31, 2007, US$15,074 (2006:
US$3,623) were appropriated from retained earnings and set aside
for the statutory reserve by the Company’s subsidiaries in
the PRC.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
As a result of these PRC laws and regulations, the
Company’s subsidiaries in the PRC are restricted in its
ability to transfer a portion of its net assets to either in the
form of dividends, loans or advances, which consisted of paid-up
capital and statutory reserve amounted to US$467,827 as of
December 31, 2007 (2006: US$107,223).
The following presents condensed unconsolidated financial
information of the Parent Company only.
Total liabilities, redeemable convertible preferred shares and
shareholders’ equity
122,569
646,148
Except for the litigation disclosed in note 13(c), the
Company had no contingencies, long-term obligations and
guarantees as of December 31, 2006 and 2007.
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
Proceeds from issuance of exchangeable notes, net of issue cost
US$52
7,948
—
Proceeds from
Series A-2
redeemable convertible preferred shares, net of issue cost US$51
6,949
—
Proceeds from Series B redeemable convertible preferred
shares, net of issue cost US$78
47,922
—
Proceeds from Series C redeemable convertible preferred
shares
22,500
—
Net cash provided by financing activities
84,924
365,315
Net increase in cash and cash equivalents
178
349
Cash and cash equivalents at beginning of period
—
178
Cash and cash equivalents at end of period
178
527
(23)
SUBSEQUENT
EVENTS
(a)
Acquisition
On January 2, 2008, JXLDK entered into an agreement to
acquire 33.5% of the outstanding ordinary shares of Jiangxi
Sinoma New Material Co., Ltd. (Sinoma), a Xinyu-based crucible
manufacturer, from Xinyu Chengdong Investment and Construction
Co., Ltd. for a cash consideration of approximately US$2,327,
which has been paid by
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS — (Continued)
FOR THE PERIOD FROM JULY 5, 2005 (date of inception) TO DECEMBER31, 2005
AND THE YEARS ENDED DECEMBER 31, 2006 AND 2007 (Amounts
in US$ thousands, except share and per share data)
the Group following the consummation of the acquisition later in
January 2008. The Group will account for its investment in
Sinoma under the equity method in 2008.
(b)
Additional
bank borrowings
Subsequent to December 31, 2007, the Group incurred
additional secured and unsecured short term bank borrowings of
US$134,643 with interest rates ranging from 5.378% to 8.670%,
and secured long term bank borrowings of US$22,795 with interest
rate of 7.560% repriced annually, primarily to finance the
purchases of raw materials and expansion of manufacturing
facilities. As of March 31, 2008, the Group’s short
term bank borrowings and long term bank borrowings amounted to
US$313,933 and US$37,795 respectively.
F-43
Dates Referenced Herein and Documents Incorporated by Reference