Table of Contents

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 


 

FORM 20-F

 


 

(Mark One)

 

o

REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

OR

 

 

x

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2015

 

 

OR

 

 

o

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                       to                        

 

 

OR

 

 

o

SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934

 

Date of event requiring this shell company report . . . . . . . . . . . . . . . . . . .

 

Commission file number: 001-33195

 

TRINA SOLAR LIMITED

(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)

 

No. 2 Tian He Road

Electronics Park, New District

Changzhou, Jiangsu 213031

People’s Republic of China

(Address of Principal Executive Offices)

 

Teresa Tan, Chief Financial Officer

No. 2 Tian He Road

Electronics Park, New District

Changzhou, Jiangsu 213031

People’s Republic of China

Tel: (+86) 519 8548 2008

Fax: (+86) 519 8517 6025

E-mail: ir@trinasolar.com

(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)

 

Securities registered or to be registered pursuant to Section 12(b) of the Act:

 

Title of Each Class

 

Name of Each Exchange on Which Registered

American Depositary Shares, each representing

 

New York Stock Exchange

50 ordinary shares, par value $0.00001 per share

 

 

 


 

Securities registered or to be registered pursuant to Section 12(g) of the Act:

 

None

(Title of Class)

 



Table of Contents

 

Securities for which there is a reporting obligation pursuant to Section 15(d) of the 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.

 

4,629,129,044 ordinary shares, par value $0.00001 per share, as of

 

December 31, 2015.

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

x Yes   o No

 

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 Securities Exchange Act of 1934.

o Yes   x No

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

x Yes   o No

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

x Yes   o No

 

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 x

 

Accelerated filer o

 

Non-accelerated filer o

 

Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:

 

U.S. GAAP x

 

International Financial Reporting Standards as issued
by the International Accounting Standards Board
o

 

Other o

 

* If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.

o Item 17   o Item 18

 

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).

o Yes   x No

 

(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 Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.

 

o Yes   o No

 



Table of Contents

 

TABLE OF CONTENTS

 

 

 

 

INTRODUCTION

1

 

 

 

PART I

 

2

 

 

 

Item 1.

IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS

2

 

 

 

Item 2.

OFFER STATISTICS AND EXPECTED TIMETABLE

2

 

 

 

Item 3.

KEY INFORMATION

2

 

 

 

Item 4.

INFORMATION ON THE COMPANY

35

 

 

 

Item 4A.

UNRESOLVED STAFF COMMENTS

61

 

 

 

Item 5.

OPERATING AND FINANCIAL REVIEW AND PROSPECTS

61

 

 

 

Item 6.

DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES

93

 

 

 

Item 7.

MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS

105

 

 

 

Item 8.

FINANCIAL INFORMATION

107

 

 

 

Item 9.

THE OFFER AND LISTING

107

 

 

 

Item 10.

ADDITIONAL INFORMATION

108

 

 

 

Item 11.

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

119

 

 

 

Item 12.

DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES

120

 

 

 

PART II

 

122

 

 

 

Item 13.

DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES

122

 

 

 

Item 14.

MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS

122

 

 

 

Item 15.

CONTROLS AND PROCEDURES

122

 

 

 

Item 16A.

AUDIT COMMITTEE FINANCIAL EXPERT

123

 

 

 

Item 16B.

CODE OF ETHICS

123

 

 

 

Item 16C.

PRINCIPAL ACCOUNTANT FEES AND SERVICES

123

 

 

 

Item 16D.

EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES

124

 

 

 

Item 16E.

PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS

124

 

 

 

Item 16F.

CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT

124

 

 

 

Item 16G.

CORPORATE GOVERNANCE

124

 

 

 

Item 16H.

MINE SAFETY DISCLOSURE

124

 

 

 

PART III

 

124

 

 

 

Item 17.

FINANCIAL STATEMENTS

124

 

 

 

Item 18.

FINANCIAL STATEMENTS

124

 

 

 

Item 19.

EXHIBITS

125

 



Table of Contents

 

INTRODUCTION

 

Unless the context otherwise requires, in this annual report on Form 20-F:

 

·                                          “We,” “us,” “our,” and “our company” refer to Trina Solar Limited, its predecessor entities and its subsidiaries;

 

·                                          “Trina” refers to Trina Solar Limited;

 

·                                          “Trina China” refers to Changzhou Trina Solar Energy Co., Ltd.;

 

·                                          “TST” refers to Trina Solar (Changzhou) Science and Technology Co., Ltd.;

 

·                                          “ADSs” refers to our American depositary shares, each of which represents 50 ordinary shares;

 

·                                          “ADRs” refers to the American depository receipts, which, if issued, evidence our ADSs;

 

·                                          “China” or “PRC” refers to the People’s Republic of China, excluding, for the purpose of this annual report, Taiwan, Hong Kong and Macau;

 

·                                          “RMB” or “Renminbi” refers to the legal currency of China, “$” or “U.S. dollars” refers to the legal currency of the United States, and “€” or “Euro” refers to the legal currency of the European Union;

 

·                                          “shares” or “ordinary shares” refers to our ordinary shares, par value $0.00001 per share; and

 

·                                          “issued and outstanding” refers to our shares that have been issued, outstanding and paid in full, for the avoidance of doubt, excluding shares that have been set aside in relation to any share incentive plan or convertible debt security.

 

Names of certain companies provided in this annual report are translated or transliterated from their original Chinese legal names.

 

Discrepancies in any table between the amounts identified as total amounts and the sum of the amounts listed therein are due to rounding.

 

This annual report on Form 20-F includes our audited consolidated financial statements for the years ended December 31, 2013, 2014 and 2015.

 

We make no representation that the Renminbi or U.S. dollar amounts referred to in this annual report could have been or could be converted into U.S. dollars or Renminbi, as the case may be, at any particular rate or at all. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Company and Our Industry—Fluctuations in exchange rates could adversely affect our business.” On April 15, 2016, the noon buying rate was RMB6.4730 to $1.00.

 

We completed the initial public offering of 5,300,000 ADSs on December 22, 2006. On December 19, 2006, we listed our ADSs on the New York Stock Exchange under the symbol “TSL.” On November 22, 2010, our ADRs started trading on the Singapore Exchange GlobalQuote Board under the symbol “K3KD.”

 

1



Table of Contents

 

PART I

 

Item 1.                                                         IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS

 

Not Applicable.

 

Item 2.                                                         OFFER STATISTICS AND EXPECTED TIMETABLE

 

Not Applicable.

 

Item 3.                                                         KEY INFORMATION

 

A.                                    Selected Financial and Operational Data

 

The following selected consolidated statement of operations data (other than ADS data) for the years ended December 31, 2013, 2014 and 2015 and the selected consolidated balance sheets data as of December 31, 2014 and 2015 have been derived from our audited financial statements included elsewhere in this annual report. The selected consolidated financial data should be read in conjunction with those financial statements and the accompanying notes and “Item 5. Operating and Financial Review and Prospects” below. Our consolidated financial statements are prepared and presented in accordance with United States generally accepted accounting principles, or U.S. GAAP. Our historical results do not necessarily indicate our results expected for any future periods.

 

Our selected consolidated statements of operations data (other than ADS data) for the years ended December 31, 2011 and 2012 and our consolidated balance sheets data as of December 31, 2011, 2012 and 2013 have been derived from our audited consolidated financial statements, which are not included in this annual report.

 

 

 

Year Ended December 31,

 

 

 

2011

 

2012

 

2013

 

2014

 

2015

 

 

 

(in thousands, except for share, per share, per ADS, operating data and percentages)

 

Consolidated Statement of Operations Data

 

 

 

 

 

 

 

 

 

 

 

Net sales

 

$

2,047,902

 

$

1,296,655

 

$

1,774,971

 

$

2,286,119

 

$

3,035,512

 

Cost of sales

 

1,715,260

 

1,239,412

 

1,556,777

 

1,900,547

 

2,468,879

 

Gross profit

 

332,642

 

57,243

 

218,194

 

385,572

 

566,633

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

Selling expenses

 

100,427

 

118,885

 

132,824

 

135,061

 

178,119

 

General and administrative expenses

 

157,129

 

176,719

 

103,523

 

108,150

 

132,439

 

Research and development expenses

 

44,120

 

26,511

 

19,926

 

22,258

 

34,099

 

Provision for settlement of lawsuit with Solyndra

 

 

 

 

 

45,000

 

Total operating expenses

 

301,676

 

322,115

 

256,273

 

265,469

 

389,657

 

Income (loss) from operations

 

30,966

 

(264,872

)

(38,079

)

120,103

 

176,976

 

Foreign exchange (loss) gain

 

(27,435

)

908

 

(13,576

)

(21,934

)

(25,139

)

Interest expense

 

(35,021

)

(51,887

)

(48,445

)

(34,886

)

(52,252

)

Interest income

 

3,056

 

8,552

 

3,958

 

2,793

 

2,862

 

Derivatives (loss) gain

 

(11,393

)

8,542

 

2,180

 

3,422

 

4,065

 

Equity in income (loss) of equity method investees

 

 

 

(746

)

(198

)

1,741

 

Other income, net

 

9,317

 

6,797

 

9,442

 

7,448

 

7,539

 

(Loss) income before income taxes

 

(30,510

)

(291,960

)

(85,266

)

76,748

 

115,792

 

Income tax (expense) benefit

 

(7,310

)

25,405

 

13,030

 

(15,488

)

(29,445

)

Net (loss) income

 

(37,820

)

(266,555

)

(72,236

)

61,260

 

86,347

 

Net loss (income) attributable to the non-controlling interests

 

(1)

(1)

210

 

(1,922

)

(9,832

)

Net (loss) income attributable to Trina Solar Limited Shareholders

 

$

(37,820

)

$

(266,555

)

$

(72,026

)

$

59,338

 

$

76,515

 

(Loss) earnings per ordinary share:

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.01

)

$

(0.08

)

$

(0.02

)

$

0.02

 

$

0.02

 

Diluted

 

$

(0.01

)

$

(0.08

)

$

(0.02

)

$

0.01

 

$

0.02

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings (loss) per ADS:

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.54

)

$

(3.77

)

$

(1.01

)

$

0.76

 

$

0.91

 

Diluted

 

$

(0.54

)

$

(3.77

)

$

(1.01

)

$

0.74

 

$

0.86

 

Weighted average ordinary shares outstanding:

 

 

 

 

 

 

 

 

 

 

 

Basic

 

3,521,182,416

 

3,534,829,694

 

3,553,552,756

 

3,881,503,977

 

4,226,950,678

 

Diluted

 

3,521,182,416

 

3,534,829,694

 

3,553,552,756

 

4,274,694,832

 

5,277,943,367

 

Weighted average ADS outstanding:

 

 

 

 

 

 

 

 

 

 

 

Basic

 

70,423,648

 

70,696,594

 

71,071,055

 

77,630,080

 

84,539,014

 

Diluted

 

70,423,648

 

70,696,594

 

71,071,055

 

85,493,897

 

105,558,867

 

 

 

 

 

 

 

 

 

 

 

 

 

Consolidated Financial Data

 

 

 

 

 

 

 

 

 

 

 

Gross margin(2)

 

16.2

%

4.4

%

12.3

%

16.9

%

18.7

%

Net margin(3)

 

(1.8

)%

(20.6

)%

(4.1

)%

2.7

%

2.8

%

Consolidated Operating Data

 

 

 

 

 

 

 

 

 

 

 

PV modules shipped (in MW)(4)

 

1,512.0

 

1,594.0

 

2,584.3

 

3,336.2

 

4,825.4

 

Average selling price ($/W)

 

$

1.33

 

$

0.78

 

$

0.64

 

$

0.63

 

$

0.58

 

 

2



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(1)              The amount of net loss attributable to the non-controlling interest is less than one thousand for the years ended December 31, 2011 and 2012.

 

(2)              Gross margin represents the result of gross profit divided by net sales.

 

(3)              Net margin represents the result of net income (loss) divided by net sales.

 

(4)              Excludes shipment to our solar power projects segment.

 

 

 

As of December 31,

 

 

 

2011

 

2012

 

2013

 

2014

 

2015

 

 

 

(in thousands)

 

Consolidated Balance Sheet Data

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

816,780

 

$

807,276

 

$

486,686

 

$

392,892

 

$

465,393

 

Restricted cash

 

79,602

 

110,920

 

74,720

 

146,929

 

194,484

 

Inventories

 

249,779

 

318,504

 

244,532

 

350,852

 

431,994

 

Build-to-sell project assets

 

8,861

 

7,960

 

73,305

 

60,105

 

531,344

 

Accounts receivable, net

 

466,537

 

390,157

 

435,092

 

608,149

 

658,836

 

Total current assets

 

1,768,722

 

1,765,487

 

1,521,701

 

1,773,346

 

2,588,932

 

Property, plant and equipment, net

 

919,727

 

893,340

 

889,752

 

1,253,543

 

1,862,136

 

Total assets

 

2,877,448

 

2,864,857

 

2,567,229

 

3,199,566

 

4,693,954

 

Short-term borrowings and current portion of long-term borrowings

 

389,472

 

875,821

 

935,590

 

820,252

 

916,614

 

Accounts payable

 

472,092

 

423,985

 

461,148

 

742,007

 

1,390,162

 

Total current liabilities

 

1,007,435

 

1,479,155

 

1,540,543

 

1,749,803

 

2,602,559

 

Accrued warranty costs

 

58,810

 

65,780

 

81,743

 

103,197

 

129,478

 

Long-term borrowings, excluding current portion

 

520,151

 

415,150

 

100,502

 

22,434

 

521,982

 

Total equity

 

1,145,325

 

881,785

 

822,479

 

1,001,079

 

1,090,563

 

Total liabilities and equity

 

$

2,877,448

 

$

2,864,857

 

$

2,567,229

 

$

3,199,566

 

$

4,693,954

 

 

B.                                    Capitalization and Indebtedness

 

Not Applicable.

 

C.                                    Reasons for the Offer and Use of Proceeds

 

Not Applicable.

 

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D.                                    Risk Factors

 

Risks Related to Our Company and Our Industry

 

We may be adversely affected by volatile market and industry trends, in particular, the growth for solar power projects may decline, which may reduce our revenues and earnings.

 

We are affected by solar power markets and industry trends.  Weakened global economic conditions may affect the availability of financing, which in turn would slow the demand for photovoltaic, or PV, projects.  As a result of global economic conditions, some governments may implement austerity measures that reduce the feed-in tariffs, or FITs, and other incentives designed to benefit the solar industry.  In 2008 and 2009, demand for global solar power declined due to decreased availability of financing for downstream buyers of solar power products as a result of the global economic crisis.  During the same period, increased manufacturing capacity combined with decreasing demand and prices caused a decline in the prices of solar power products.  In 2011, a decrease in government payment to solar power producers, which were in the form of FITs and other reimbursements, and a reduction in available financing caused a decrease in the growth in the number of solar power projects in the European markets.  Payments to solar power producers decreased as governments in Europe, under pressure to reduce sovereign debt levels, reduced incentives such as FITs, which require public utility companies to pay higher prices for solar power than for power generated through conventional means. Furthermore, many downstream buyers of solar power products were unable to secure sufficient financing for the solar power projects due to the global credit crunch.  As a result, many solar power producers that purchase solar power products from manufacturers like us were unable or unwilling to expand their operations.  These market conditions were exacerbated by an over-supply of solar power products, primarily driven by an increase in manufacturing capacity that continued through 2011, which adversely affected the prices of solar power products.

 

In 2012, governments further reduced their support in the European markets that have traditionally relied upon FITs to support demand and fewer markets utilized FITs and power purchase agreements to support demand, which in the aggregate resulted in a marked decline in the global growth rate of demand for solar products. Further, in December 2013, anti-dumping and anti-subsidy duties imposed by the European Commissions on crystalline silicon photovoltaic, or CSPV, cells and modules originating in or consigned from China became effective, motivating a number of Chinese solar product manufacturers, including us, to agree to a price undertaking (which we withdrew from effective December 11, 2015), pursuant to which exporters agreed not to sell more than an agreed amount of solar panels or certain related components into the European Union below a minimum price. Both the FITs reduction and the price undertaking resulted in increased prices and further decreases in demand in European markets. The United Kingdom government further reduced FITs in 2015 and closed the renewable obligation certificates scheme for all new PV projects after March 31, 2016, which may cause a further decrease in demand in Europe in 2016 and 2017. Although increases in demand in other regions, including the United States, Japan and India, as well as many other emerging markets in Asia, the Middle East and Africa, are expected to offset the decline in European demand, we cannot assure you that those increases will continue in the future and fully offset the declining demand in Europe.

 

The demand for solar power is also influenced by macroeconomic factors such as global economic conditions, the supply and prices of other energy products such as oil, coal and natural gas, and government regulations and policies concerning the electric utility industry. A decrease in oil prices, for example, may reduce demand for investment in alternative energy.

 

If these negative market and industry trends continue and demand for solar power projects and solar power products weakens as a result, our business and results of operations may be materially and adversely affected.

 

The determination by U.S. and European Union authorities that our export sales are in violation of international fair trade rules could impede our access to important export markets and our overall competitiveness.

 

In 2011, solar panel manufacturing companies in the United States filed anti-dumping and countervailing duty petitions with the U.S. government, which resulted in the institution of anti-dumping and countervailing duty investigations relating to imports into the United States of CSPV cells, whether or not assembled into modules, from China. In December 2012, following completion of those investigations by the U.S. International Trade Commission, or Commission, and the U.S. Department of Commerce, or Commerce, anti-dumping and countervailing duty orders were imposed on imports into the United States covered by the investigation, including imports of our products originating from China. The orders required an effective net cash deposit rate on all imports of these covered products of 23.75%, though Commerce revised the effective net cash deposit rate to 30.61% in July 2015 upon issuing the final results of its first administrative review. This rate will remain effective until the final results of the second administrative review are issued, the preliminary results of which were published in December 2015 and proposed an anti-dumping rate for us of 4.53%, compared to rates for all other Chinese exporters ranging from 7.27% to 11.47%, and a countervailing duty rate for us of 19.62%. The final results of the second administrative review are expected to be published by July of 2016. The actual duty rates at which entries of covered merchandise will be finally assessed may differ from the deposit rates because they are subject to completion of ongoing administrative reviews of the anti-dumping and countervailing duty orders.

 

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On December 31, 2013, SolarWorld Industries America, Inc., or SolarWorld, a U.S. producer of solar cells and panels, filed a separate petition with the U.S. government resulting in the institution of new anti-dumping and countervailing duty investigations against imports from China and Taiwan. These investigations resulted in anti-dumping and countervailing duty orders on Chinese exports of CSPV modules that incorporate non-Chinese CSPV cells and anti-dumping duties on CSPV cells and modules from Taiwan.  These anti-dumping and countervailing duty orders exclude from their scope certain products, including any products that are covered by the anti-dumping and countervailing duty orders imposed in 2012.  On December 17, 2014, Commerce issued final rulings that imports of certain CSPV cells and modules were dumped in the United States from China and Taiwan and that imports of certain CSPV cells and modules from China received subsidies. On these imports the Company received an anti-dumping rate of 26.71% and a countervailing rate of 49.79%, which will be in effect until the final determination of the first administrative review.  On January 21, 2015, the Commission affirmed that imports of certain CSPV cells and modules from mainland China and Taiwan materially injure the domestic industry.  The actual duty rates at which entries of covered merchandise will be finally assessed may differ from the announced deposit rates, because they will be subject to completion of administrative reviews of these anti-dumping and countervailing duty orders. In February 2016, the Company filed requests for review of the anti-dumping and countervailing orders on its exports of Chinese modules possessing non-Chinese CSPV cells. The Company expects the first administrative reviews to be completed around the third quarter of 2017.

 

On September 6, 2012 and November 8, 2012, the European Commission announced the initiation of anti-dumping and anti-subsidy investigations, respectively, concerning imports into the European Union of CSPV modules and key components (i.e., cells and wafers) originating in China. On December 5, 2013, the Council of the European Union announced its final decision imposing anti-dumping and anti-subsidy duties on imports of CSPV cells and modules originating in or consigned from China. Both anti-dumping and anti-subsidy duties are applicable for a period of two years beginning on December 6, 2013 to imports from Chinese solar panel exporters who, like us, cooperated with the European Commission’s investigations.  However, on the same day, the European Commission accepted a price undertaking by Chinese export producers in connection with the anti-dumping and anti-subsidy proceedings. As a result, imports from Chinese solar panel exporters that are made pursuant to the price undertaking are exempt from the final anti-dumping and anti-subsidy duties imposed by the European Union. We agreed to comply with the minimum price and other conditions set forth in the undertaking so that our exported products were exempt from the anti-dumping and anti-subsidy duties imposed by the European Commission during the period from December 6, 2013 to December 11, 2015.  The European Commission monitors compliance on an ongoing basis, and there have been allegations of non-compliance to the price undertaking by certain Chinese export producers. Furthermore, on December 5, 2015, the European Commission announced that it was initiating an expiry review investigation during which the anti-dumping and anti-subsidy duties and the price undertaking measures will remain in force.  Effective from December 11, 2015, we have withdrawn from the price undertaking and started to supply EU markets through our tariff-free overseas manufacturing facilities. Currently, production costs at our overseas manufacturing facilities are higher than at our manufacturing facilities in China. If we are unable to produce PV products at our overseas manufacturing facilities and transport them into the EU at a competitive price, or if we cannot otherwise obtain module products at a competitive price, we will be at a competitive disadvantage in the EU markets.

 

It is also possible that other anti-dumping or countervailing duties or other import restrictive proceedings will be initiated in additional jurisdictions. For example, in November 2012, India initiated anti-dumping investigations against solar cell imports from China, the United States, Malaysia and Taiwan, and in May 2014, India’s Department of Commerce recommended imposing duties on electricity produced on “solar cell” imports from these countries before India’s Ministry of Finance decided against imposing any such duties in September 2014. Further, on May 14, 2014, Australia initiated an anti-dumping investigation against certain CSPV modules or panels exported to Australia from China. Although our policy requires that all of our export sales comply with international trade practices, we cannot guarantee that the government agencies in the jurisdictions in which actions are brought will not impose trade remedy actions. Under the anti-dumping and countervailing duty laws, significant additional duties may be imposed on imports of our products into these countries, which increase our costs of accessing these additional markets. As a result of the duties imposed by the relevant authorities, or if duties are imposed on our PRC-manufactured products, we may adjust our business strategy for selling into these jurisdictions. Any change in our business strategy would create a number of operational and legal uncertainties. Any of the above scenarios may materially and adversely impact our sales, thereby limiting our opportunities for growth.

 

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We have been named as a defendant in certain legal and administrative actions that may have a material adverse impact on our operating results and financial condition.

 

We must defend against legal and administrative actions described in Item 8 of this annual report, “Item 8.  Financial Information—A. Consolidated Statements and Other Financial Information—Legal and Administrative Proceedings.” These include various trade actions as well as a lawsuit brought by Energy Conversion Devices Liquidation Trust, against which the defendants, including us, filed motions to dismiss the claims in their entirety.  The motion to dismiss Energy Conversion Devices Liquidation Trust’s lawsuit was granted by the district court, and the plaintiff filed an appeal with the United States Court of Appeals for the Sixth Circuit, which remains pending. We will continue to defend ourselves in this case, although we cannot be certain that we will be successful in these efforts. We also cannot be certain that we will be able to successfully defend ourselves against these claims if this case or any other case is brought to trial.  We will consider appealing the outcome of these legal and administrative actions should our initial defense be unsuccessful. Although we will vigorously defend ourselves in these cases, we are currently unable to estimate the possible loss or possible range of loss, if any, associated with the resolution of these legal and administrative actions and disputes. Any unfavorable outcome from these actions and disputes, including an appeal of the judgment or outcome in these actions and disputes, may have a material adverse effect on our consolidated financial position, results of operations, or cash flows in the future. These legal and administrative proceedings may consume a material portion of our cash resources and divert management’s attention from the day-to-day operations of our company, all of which could harm our business. There can be no assurance that we will prevail in any such appeal and any adverse outcome of these cases could have a material adverse effect on our business or results of operations.

 

A significant reduction or elimination of economic incentives or change in government policies may have a material adverse effect on our business and prospects.

 

Demand for our products depends substantially on government incentives which aim to promote greater use of solar power. In many countries in which we are currently, or intend to become, active, the solar power markets, particularly the market of on-grid PV systems, would not be commercially viable without government incentives. This is because the cost of generating electricity from solar power currently exceeds, and we believe will continue to exceed for the foreseeable future, the costs of generating electricity from conventional or non-solar renewable energy sources.

 

The scope of the government incentives for solar power depends, to a large extent, on political and policy developments relating to environmental concerns in a given country, which could lead to a significant reduction in or a discontinuation of the support for renewable energies in such country. National and local governmental bodies in many of our primary-targeted markets, notably, Germany, Italy, the United Kingdom and other countries in Europe, China, the United States, Australia, India, Japan, as well as other markets in Asia, Africa, the Middle East, Latin America, and the Caribbean Islands have provided economic incentives in the form of capital cost rebates, feed-in tariffs, tax credits and other incentives to end users, distributors, system integrators and manufacturers of solar power products. Policy shifts could reduce or eliminate these government economic incentives altogether.

 

However, as the solar power industry continues to develop, these government economic incentives have been reduced and could continue to be reduced or be eliminated altogether. For example, in December 2010, the Spanish government reduced the maximum allowable annual operating hours for which PV systems could earn FIT payments. Germany further reduced its FITs in the beginning of 2012 by 15% to up to 24.43 Euro cents per kilowatt hour for rooftop systems and up to 18.76 Euro cents per kilowatt hour for ground-based systems. In September 2012, Germany introduced a further reduction in FITs of 1% monthly for roof-based systems while reducing or eliminating FITs for ground-based systems.  Reductions in FIT programs continued in 2013, 2014 and 2015 across Europe, including in the United Kingdom, Germany, Italy, Spain, Romania and Czech. All such reductions may result in a significant fall in the price of PV products in order to support continued demand. We believe that uncertainty in political and policy developments may lead to increased competition among solar manufacturers. Electric utility companies that have significant political lobbying powers may also seek changes in the relevant legislation in their markets that may adversely affect the development and commercial acceptance of solar energy. Further, austerity measures being implemented by many countries attempting to lower national spending may reduce incentives to the solar industry.  A significant reduction in the scope or discontinuation of government incentive programs, especially those in our target markets, could cause demand for our products and our revenues to decline, and have a material adverse effect on our business, financial condition, results of operations and prospects.

 

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Demand for our products may be adversely affected by the effects of the credit environment on our customers and seasonal variations.

 

Europe, the United States and international economies are in the midst of a prolonged period of slow economic growth. In particular, the credit and financial crises, terrorist acts and similar events, continued turmoil in the Middle East or war in general could contribute to a slowdown of the market demand for products that require significant initial capital expenditures, including solar power products. For example, global economics, capital markets and credit disruptions have resulted in slower investments in new installation projects that make use of solar power products. If the current economic recovery slows, stalls or reverses, we may experience decreases in the demand for our solar power products, which may harm our operating results.

 

Global economics, capital markets and credit disruptions also pose risks for our customers. Although we have benefited from historically low interest rates that have made it more attractive for our customers to use credit to purchase our products, interest rates may rise soon, which could increase the cost of financing purchases of our products and may reduce our customers’ profits and investors expected returns on investment. There can be no assurance that our customers will be able to borrow money on a timely basis or on reasonable terms, which could have a negative impact on demand for our products. If global economic growth remains slow, it could result in a decrease in the demand for our solar power products, which may harm our operating results. These same factors may adversely impact our existing or future sales agreements, including increasing the likelihood of contractual breaches by our counterparties. Our sales are affected by interest rate fluctuations and the availability of liquidity, and would be adversely affected by increases in interest rates or liquidity constraints. Rising interest rates may also make certain alternative investments more attractive to investors and therefore lead to a decline in demand for our solar power products, which could have a material adverse effect on our business, results of operations, financial conditions and cash flows.

 

Our sales are also affected by seasonal variations in demand linked to construction cycles and weather conditions. Because of this, comparisons of sales and operating results between different periods within a single financial year, or between different periods in different years, are not necessarily meaningful and cannot be relied on as indicators of our performance. Seasonality may cause our working capital and other cash flow requirements to vary depending on the variability in the volume and timing of sales. These factors, among other things, make forecasting more difficult and may reduce our ability to manage working capital and to predict financial results accurately.

 

Fluctuations in polysilicon prices may affect our margins.

 

Polysilicon is an essential raw material used in the production of solar cells and modules.  Prior to the second half of 2008, there was an industry-wide shortage of polysilicon, primarily as a result of the growing demand for solar power products.  In the past, increases in the price of polysilicon have increased our cost of sales and impacted our margins.  Polysilicon production capacity expanded rapidly in 2009, which coupled with the global economic downturn, led to an oversupply of high-purity silicon in 2009, which aligned with the oversupply of solar wafers, cells and modules resulting in substantial downward pressure on prices throughout the value chain in 2011 until the second half of 2013.

 

According to PVinsights, polysilicon spot prices dropped sharply in 2015, particularly in the second and fourth quarters of 2015. According to PVinsights, in 2014 and 2015, some Chinese polysilicon suppliers completed significant capacity expansions, which were not accompanied by the proportional increase in polysilicon demand and led to an oversupply and higher inventory levels of polysilicon resulting in falling prices. Furthermore, China imposed anti-dumping and countervailing duties on polysilicon originating from the U.S. and South Korea in July 2015, which created trade barriers and distorted market prices both in China and abroad. Polysilicon prices fell sharply in the second quarter of 2015 due to seasonal demand slow-down and inventory dumping from traders for tariff-targeted polysilicon ahead of China’s implementation of anti-dumping and countervailing duties and the suspension of duty-exempted imports previously allowed for polysilicon used in export-oriented domestic manufacturing. The anti-dumping and countervailing duties led to mild price increases in China during July and August 2015, but the effect was quickly offset by the sharp decline of prices outside China, as restricted producers were forced to concentrate all their sales in the overseas markets, leading to serious oversupply and a price slump. As some foreign polysilicon is still imported into the China market, differences between prices inside and outside of China will gradually narrow, bringing down prices on China’s spot market. Hence, spot prices in China, despite remaining higher than prices overseas, began to decrease by September, and the global price downtrend accelerated in the fourth quarter of 2015 due to the approaching end of the financial year and producers were forced to offer significant price reductions to clear up their high inventory levels. As a result of the combined effect of oversupply, trade-distorting barriers and inventory pressure, average polysilicon prices in 2015 fell by 28.6% from $19.16 per kilogram in January 2015 to $13.69 per kilogram in December 2015. In March 2016, polysilicon prices increased to an average of $15.50 per kilogram due to production reduction by certain manufacturers outside China as a result of China’s anti-dumping and countervailing duties.

 

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We purchase polysilicon from a limited number of international and domestic suppliers. If the market price of polysilicon increases significantly in the future, we would have to pay more to our suppliers and our cost of sales would increase. Moreover, as the prices of other silicon-based raw materials, including ingots and wafers, are correlated to the price of polysilicon, an increase in the price of polysilicon would likely lead to increases in the prices of other silicon-based raw materials that we source from third parties.  We cannot assure you that our polysilicon procurement strategy will be successful in ensuring that we have an adequate supply of polysilicon at commercially viable prices to meet our requirements. Further, if the price of polysilicon increases faster than the increase in the price of PV modules, we may be unable to pass this increase to our customers, or if the price of PV modules decreases more quickly than the decrease in the price of polysilicon, our results of operations could be materially and adversely affected.

 

We continue to rely on a limited number of third-party suppliers and manufacturers for silicon-based raw materials for our products and toll services, which could prevent us from delivering our products to our customers within required time frames and result in sales and installation delays, cancellations, liquidated damages and loss of market share.

 

We purchase silicon-based raw materials, including polysilicon, ingots and wafers, from a limited number of domestic and international suppliers, and from time to time we source or contract toll services from third party manufacturers to manufacture some of our polysilicon and wafers. We purchase non-silicon-based raw materials from many sources. If we fail to develop or maintain our relationships with the key third party suppliers or manufacturers, we may be unable to manufacture our products timely or our products may only be available at a higher cost or after a long delay. If we do not deliver products to our customers within the required time frames, we may experience order cancellations, loss of market share and legal action.

 

Furthermore, any decrease in the availability of financing may have a significant negative impact on suppliers and manufacturers of raw materials. Suppliers typically require a significant amount of cash to fund their production and operations, to meet contractual obligations arising from previous expansions of manufacturing facilities, as well as for research and development activities. The inability of our suppliers to access capital or the insolvency of our suppliers could lead to their failure to deliver raw materials to us. Our inability to obtain raw materials in a timely manner from suppliers could have a material adverse effect on our business, financial conditions and results of operations.

 

Our future success depends in part on our ability to expand our business into solar power projects markets. Any failure to successfully implement this strategy could have a material adverse effect on our growth, business prospects and results of operations in future periods.

 

Our current business strategy includes plans to expand into selected solar power projects markets, which we believe are a natural extension of our vertically integrated business model. Historically, the solar module manufacturing business has accounted for the large majority of our net sales but as we continue to expand our business into the solar power projects segment of the industry, we expect that our solar power projects business will continue to contribute a significant portion of our net sales. These expansion plans may include investments in project companies and joint ventures and forming strategic alliances with third parties to balance system technologies, engineering, procurement and construction services, and related financing needs. These plans may require additional capital expenditures, which could be used in pursuit of other opportunities and investments. Additionally, our experience in the solar power products manufacturing industry may not be as relevant or applicable in downstream markets. We may also face intense competition from companies with greater experience or established presence in the targeted downstream markets or competition from our industry peers with similar expansion plans. Furthermore, we may not be able to manage entities which we invest in or provide adequate resources to such entities to maximize the return on our investments. We may not be able to secure the government approvals or licenses required for construction and operation of solar power projects in a timely manner, or at all. In the case of potential joint ventures and strategic alliances with third parties, we may face risks associated with the sharing of proprietary information, loss of control of operations that are material to our business and profit sharing arrangements. We may also consider acquisitions of existing downstream players, in which we may face difficulties related to the integration of the operations and personnel of acquired businesses and the division of resources between our existing and acquired operations.

 

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We cannot assure you that we will be successful in expanding our business into solar power projects markets along the solar power product value chain. Any failure to successfully identify, execute and integrate our acquisitions, investments, joint ventures and alliances as part of entering into projects markets may have a material adverse impact on our growth, business prospects and results of operations, which could lead to a decline in the price of our ADSs.

 

We may not be able to locate third party buyers for our solar projects on a timely manner, or at all, or we may not be able to timely renew or replace expiring power purchase agreements, or PPAs, or other contractual arrangements with agreements containing equivalent terms and conditions.

 

Upon completing solar projects, we either sell them to third party buyers, or operate them under PPAs or other contractual arrangements with utility or grid operators. For those projects we intend to sell, if we are not able to locate third party buyers and agree to a purchase and sales contract on terms and conditions favorable to us and in a timely manner, or at all, our business, financial condition and results of operations could be materially and adversely affected. In addition, substantially all of our build-to-own ground-mounted solar power projects are located in China, where local subsidiaries of the State Grid Corporation of China, or the State Grid, purchase nearly all of the electricity we generate pursuant to PPAs. Our PPAs for projects located in China generally have terms of one to five years and are subject to renewal by the parties when the original term expires. However, the PRC central government guarantees the FIT at a fixed price for all solar power projects approved by China’s National Development and Reform Commission, or NDRC, for at least 20 years in principle. If we are unable to renew the PPAs when they expire, we may not be able to replace them with agreements of equivalent terms, or at all, or we may experience significant delays or incur additional costs related to securing replacements. Although the local subsidiaries of the State Grid are required under PRC law to purchase all electricity generated by renewable energy producers within their coverage areas, if, for any reason, the local subsidiaries of the State Grid are unable or unwilling to fulfill their obligations or otherwise terminate agreements prior to their expiration, our business, financial condition and results of operations could be materially and adversely affected.

 

Solar power projects located in China can only receive subsidies from the PRC government after they are listed in the Renewable Energy Electricity Subsidy Catalog issued by China’s Ministry of Finance, the NDRC, and the National Energy Administration from time to time, or the Subsidy Catalog.

 

Solar power projects located in China can only receive central government subsidies after completing the administrative and perfunctory procedures with the relevant authorities of finance, pricing and energy to be listed in the Subsidy Catalog. In order to be listed in the Subsidy Catalog, ground-mounted projects must submit applications on the national renewable energy website for review with the construction quota and rooftop projects must submit applications to the local grid companies in the area where the projects are located. The Ministry of Finance, the NDRC and the National Energy Administration review the applications of all solar power projects and decide whether to list the projects in the Subsidy Catalog. In 2013, these agencies instituted a number of measures to standardize the approval process and the settlement of subsidies, but there have been significant delays in the listing of projects in the Subsidy Catalog, at times until even after electricity has been sold to the power grid, which has delayed the payment of the government subsidies.  As of the date of this annual report, although our build-to-own ground-mounted projects located in China have met all of the measures of the approval process, we have not received national subsidies for those projects due to administrative delays in listing projects in the Subsidy Catalog. If we do not receive subsidies for our projects in a timely manner or at all, our business, cash flows, financial condition and results of operations may be materially and adversely affected.

 

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Expanding the pipeline of our projects business in several key markets exposes us to a number of risks and uncertainties.

 

As a greater proportion of our net sales will be derived from our solar power projects business, we will be increasingly exposed to the risks associated with solar power projects. Further, our future success largely depends on our ability to expand our solar power project pipeline. The risks and uncertainties associated with our projects business and our expansion of our solar power project pipeline include:

 

·                                          the need to raise funds to develop greenfield or purchase late-stage solar power projects, which we may be unable to obtain on commercially reasonable terms or at all;

 

·                                          the uncertainty of being able to sell the projects, receive full payment for them upon completion, or receive payment in a timely manner;

 

·                                          delays and cost overruns as a result of a number of factors, many of which are beyond our control, including delays in regulatory approvals, construction, grid-connection and customer acceptance testing;

 

·                                          delays or denial of required approvals, permits or licenses by relevant government authorities in connection with the construction, grid-connection, and operation of solar power projects;

 

·                                          failure to negotiate favorable payment terms with components and services suppliers;

 

·                                          unforeseeable engineering problems, construction or other unexpected delays and contractor performance shortfalls;

 

·                                          labor, components and materials supply delays, shortages or disruptions, or work stoppages;

 

·                                          failure to execute PPAs or other arrangements that are commercially acceptable to us;

 

·                                          diversion of significant management attention and other resources; and

 

·                                          failure to execute our project pipeline expansion plan effectively.

 

If we are unable to successfully expand our projects business, and in particular, our solar power project pipeline, we may be unable to expand our business, maintain our competitive position, improve our profitability, and generate the cash flows we have currently forecasted.

 

Some of the suppliers of polysilicon with whom we have entered into long-term contracts may not be able to produce polysilicon of sufficient quantity and quality or on schedule to meet our manufacturing requirements.

 

Manufacturing polysilicon is a highly complex process and our suppliers may not be able to produce polysilicon of sufficient quantity and quality or on schedule to meet our wafer manufacturing requirements. Minor deviations in the manufacturing process can also cause substantial decreases in yield and, in some cases, cause production to be suspended or result in minimal output. If shipments of polysilicon from our suppliers experience major delays or our suppliers are unable to supply us with polysilicon as planned, we may suffer a setback to our raw material procurement, which could materially and adversely affect our growth strategy and our results of operations. Moreover, we may be involved in disputes to retrieve prepayments we made for the polysilicon delivery, which would expose us to risks of losing the prepayment or entering into settlements which may result in losses to us. In addition, the polysilicon supplied by suppliers may contain quality defects. For example, PV modules produced using polysilicon of substandard quality would result in lower cell efficiency and conversion rates than that which the supplier has claimed or provided a warranty for. From time to time, we may engage in negotiations and disputes with certain suppliers that supplied us with polysilicon with quality defects. Any litigation arising out of the disputes could subject us to potentially expensive legal expenses, distract management from the day-to-day operation of our business and expose us to risks for which appropriate damages may not be awarded to us, all of which could materially and adversely affect our business and financial condition.

 

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Prepayments to our polysilicon suppliers and equipment suppliers expose us to the credit risks of those suppliers and may increase our costs and expenses, which could in turn have a material adverse effect on our liquidity.

 

Under supply contracts with several of our multi-year polysilicon and our equipment suppliers, consistent with industry practice, we have made prepayments to our suppliers prior to the scheduled delivery dates for polysilicon and equipment. In many such cases, we made the prepayments without receiving collateral for such payments. As a result, our claims for such payments would rank as unsecured claims, which would expose us to the credit risks of our suppliers in the event of their insolvency or bankruptcy. Our claims against the defaulting suppliers would rank below those of secured creditors, which would undermine our chances of obtaining the return of our prepayments. Furthermore, if demand for our products decreases, we may incur costs associated with carrying excess materials. Accordingly, any of the above scenarios may have a material adverse effect on our financial condition and results of operations.

 

We must comply with certain financial and other covenants under the terms of our debt instruments and the failure to do so may put us in default under those instruments.

 

Many of our loan agreements include financial covenants. The financial covenants primarily include current ratios, quick ratios, net external gearing ratio, debt to asset ratios, contingent liability ratios, turnover ratio of current assets and minimum equity requirements, which, in general, govern our existing long-term debt and debt we may incur in the future. These covenants could limit our ability to plan for or react to market conditions or to meet our capital needs in a timely manner and complying with these covenants may require us to curtail some of our operations and growth plans. In addition, any global or regional economic deterioration may cause us to incur significant net losses or force us to assume considerable liabilities, which would adversely impact our ability to comply with the financial and other covenants of our outstanding loans. If our creditors refuse to grant waivers for any non-compliance with these covenants, such non-compliance will constitute an event of default which may accelerate the amounts due under the applicable loan agreements.

 

We have on occasion failed to comply with certain financial covenants in some of our loan agreements. For example, as of December 31, 2015, Trina China was not in compliance with the net external gearing ratio under a loan from Hong Kong and Shanghai Banking Corporation Limited, or HSBC, and Yunnan Matallurgical New Energy Co., Ltd., or Yunnan Matallurgical, was not in compliance with the asset liability ratio and turnover ratio of current assets under loans from China Development Bank or CDB. On March 1, 2016, Trina China obtained a waiver letter from HSBC waiving its compliance obligations for the net external gearing ratio covenant for the remaining duration of the loan. On March 17, 2016, Yunnan Matallurgical obtained a written confirmation from CDB that CDB would waive the right to declare an event of default for Yunnan Matallurgical’s non-compliance with the asset liability ratio and turnover ratio of current assets covenants provided that Yunnan Matallurgical would cure the non-compliance prior to September 17, 2016. We have determined that Yunnan Matallurgical will be able to cure the non-compliance prior to September 17, 2016 and believe that Yunnan Matallurgical will be in compliance with the financial covenants again for the remainder of 2016.

 

Although we are currently in compliance with or have obtained waivers for non-compliance with all of our existing financial and other covenants under our debt instruments, we cannot assure you that we will be able to remain in compliance with those covenants in the future. We may not be able to cure future violations or obtain a waiver on a timely basis in order to avoid a default. An event of default under any agreement governing our existing or future debt, if not cured by us or waived by our creditors, could have a material adverse effect on our liquidity, financial condition and results of operations.

 

We have significant outstanding bank borrowings, outstanding convertible senior notes and capital expenditure needs, and we may not be able to arrange adequate financing when our outstanding borrowings mature or when capital expenditures are required.

 

We typically require a significant amount of cash to fund our operations, especially for prepayments or loans to suppliers to secure our polysilicon supply requirements. We also will require a significant amount of cash to meet future capital requirements, including the expansion of our PV product manufacturing facilities and research and development activities, in order to remain competitive. Future acquisitions, expansions, market changes or other developments may cause us to require additional funds. As of December 31, 2013, 2014 and 2015, our aggregate outstanding borrowings were $1,036.1 million, $842.7 million and $1,438.6 million, respectively, of which approximately $935.6 million, $820.3 million and $916.6 million, respectively, were due within one year. We also had $172.5 million 3.5% convertible senior notes due 2019 and $115.0 million 4.0% convertible senior notes due 2019 as of December 31, 2015. As of December 31, 2015, we had $465.4 million in cash and $194.5 million in restricted cash.

 

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We have historically negotiated with our lenders to renew or rollover our loans shortly before they mature.  However, we cannot assure you that we will be able to renew or rollover these borrowings upon maturity in the future. In the event that we are unable to renew or rollover these borrowings, or if we are unable to obtain sufficient alternative funding at reasonable terms to fulfill relevant repayment obligation, we will have to repay these borrowings with cash generated by our operating activities. Our business might not generate sufficient cash flow from operations to repay these borrowings, some of which are secured by significant amounts of our assets, and at the same time fund our capital expenditures. If we are unable to make scheduled repayments in connection with our debt or other fixed payment obligations as they become due, we may need to renegotiate the terms and conditions of those obligations or obtain additional equity or debt financing. We cannot assure you that our renegotiation efforts would be successful or timely or that we would be able to refinance our obligations on acceptable terms or at all.

 

In addition, repaying these borrowings and financing our capital expenditures with cash generated by our operating activities will divert our financial resources from the requirements of our ongoing operations and future growth, and may have a material adverse effect on our business, financial condition and future prospects. 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 decrease materially. Moreover, future turmoil in the credit markets and the potential impact on the liquidity of financial institutions may have an adverse effect on our ability to fund our business through borrowings, under either existing or newly created instruments in the public or private markets on terms that we believe to be reasonable, if at all. Failure to secure any necessary financing in a timely manner and on favorable terms could have a material adverse effect on our growth strategy, financial performance and market price of ADSs and could require us to delay or abandon critical development plans.

 

Because the markets in which we compete are highly competitive and our competitors may have greater resources than us, we may not be able to compete successfully and we may lose or be unable to gain market share.

 

The market for solar power products is competitive and evolves quickly. We face intense competition, which in the past has resulted in price reductions, reduced margins or loss of market share. We compete with other PV module manufacturing companies, including dedicated PV manufacturers such as First Solar Inc., Golden Concord Holdings Limited, or GCL, Canadian Solar, Inc., JinkoSolar Holding Co., Ltd., JA Solar Holdings Co., Ltd. and Xi’an LONGi Silicon Materials Corp. as well as multinational conglomerates such as Mitsubishi Electric Corporation. We may also face competition in the downstream solar power business from competitors such as Canadian Solar Inc., JinkoSolar Holding Co., Ltd., and GCL, as well as the large Chinese state-owned electric utility enterprises in the downstream solar power business in China. Some of our competitors may have a stronger market position than ours, more sophisticated technologies and products, greater resources and better name recognition than we do. Further, some of our competitors are developing and are currently producing products based on new solar power technologies, such as thin-film technology, which may ultimately have costs similar to, or lower than, our projected costs.

 

The barriers to entry are relatively low in the PV module manufacturing business, given that manufacturing PV modules is labor intensive and requires limited technology. Some mid-stream solar power products manufacturers have been seeking to move downstream to strengthen their position in regional markets. In addition, we may also face new competition from manufacturers developing thin film and other PV technologies that are designed to offer economic or performance advantages, several of which have already announced their intention to start production of solar cells or module products. Decreases in polysilicon prices and increases in PV module production could result in substantial downward pressure on the price of PV modules and intensify the competition we face.

 

Some of our current and potential competitors have longer operating histories, access to a larger customer base, stronger relationships with customers, access to greater resources, and greater economies of scale, financing, sales and marketing, manufacturing, distribution, research and development, technical and other advantages over us. As a result, they may be able to respond more quickly to changing customer demands or market conditions or to devote greater resources to the development, promotion and sales of their products than we can. Our business relies largely on sales of our PV modules and solar power projects, and our competitors with more diversified product offerings may be better positioned to withstand a decline in the demand for PV modules and our projects. New competitors or alliances among existing competitors could emerge and rapidly acquire a significant market share, which would harm our business. Moreover, the key entry barriers to the downstream solar power business at present consist of availability of financing, availability of experienced technicians and executives who are familiar with the industry and the implementation of market access standards. If these barriers disappear or become easier to surmount, new competitors may successfully enter into the market, resulting in increased competition and loss of our market share, which could adversely affect our operating and net margins. If we fail to compete successfully, our business would suffer and we may lose or be unable to gain market share.

 

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Our dependence on a limited number of customers may cause significant fluctuations or declines in our revenues.

 

We currently sell a significant portion of our PV modules to a limited number of customers. In 2013, 2014 and 2015, sales to our top five customers accounted for approximately 18.7%, 34.7% and 23.3%, respectively, of our total net sales. Our largest customer contributed approximately 5.9% of our net sales in 2015. Sales to our customers are typically made through non-exclusive, short-term arrangements. We anticipate that our dependence on a limited number of customers will continue for the foreseeable future. Consequently, any one of the following events may cause material fluctuations or declines in our revenues:

 

·                                          reduction, delay or cancellation of orders from one or

 

·                                          more of our significant customers;

 

·                                          selection of competing products by one or more of our significant customers;

 

·                                          loss of one or more of our significant customers due to disputes, dissatisfaction with our products or otherwise and our failure to attract additional or replacement customers; and

 

·                                          failure of any of our significant customers to make timely payment for our products.

 

We are exposed to the credit risk of these customers, some of which are new customers with whom we have not historically had extensive business dealings. Some of our overseas credit sales are insured against non-payment by our customers. The amount of insurance coverage for each transaction is based on a rating assigned by the insurer to the customer, based on that customer’s credit history. However, we cannot assure you that all of our accounts receivable are sufficiently covered or that the insurer will be able to make payments on our claims. The failure of any of these significant customers to meet their payment obligations would materially and adversely affect our financial position, liquidity and results of operations.

 

If the practice of requiring customers to make advance payments when they place orders with us declines, we will experience increased needs to finance our working capital requirements and are exposed to increased credit risk.

 

We have required our customers to make an advance payment of a certain percentage of their orders, a business practice that has helped us to manage our accounts receivable, prepay our suppliers and reduce the amount of funds that we needed to finance our working capital requirements. This practice of requiring our customers to make advance payments declined in 2014 in line with market trends. While advance payments from our customers increased in 2015, the practice of requiring advance payments is expected to decline again in 2016, which will pressure us to increase our working capital turnover or obtain additional financing to fund our working capital requirements. In 2015, a majority of our revenues were derived from credit sales, generally with payment schedules due according to negotiated contracts. In addition, some of our customers pay us through drawn upon acceptance, open account and letter of credit terms, which typically take approximately 90 days to 120 days to process in order for us to be paid, although in some instances the settlement period may be longer. Despite the credit payment terms, any of our customers may fail to meet their payment obligations, especially due to the global economic crisis and the resulting decrease in the availability of financing, which would materially and adversely affect our financial position, liquidity and results of operations.

 

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We may experience difficulty in achieving acceptable yields and product performance as a result of manufacturing problems.

 

The technology for the manufacturing of silicon ingots and wafers 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 wafers can cause a percentage of the wafers to be rejected, which in each case negatively affects our yields. We have, from time to time, experienced production difficulties that have caused manufacturing delays and lower than expected yields.

 

We conduct most of our manufacturing in our manufacturing facilities in China, any problem in our facilities may limit our ability to manufacture products. We may encounter problems in our manufacturing facilities as a result of, among other things, production failures, construction delays, human errors, equipment malfunction or process contamination, which could seriously harm our operations. We may also experience fires, floods, droughts, power losses and similar events beyond our control that would affect our facilities. For example, shortages or suspensions of power supplied to us have occasionally occurred due to severe thunderstorms in the area, and have disrupted our operations and caused severe damages to wafers in the process. A disruption to any step of our manufacturing process will require us to repeat each step and recycle the silicon debris, thus adversely affecting our yields. Operating hazards and natural disasters may cause interruption to our operations, property and/or environmental damage as well as personal injuries, and each of these incidents could have a material adverse impact on our results of operations. Although we carry business interruption insurance, losses incurred or payments required to be made by us due to operating hazards or natural disasters that are not fully insured may have a material adverse effect on our financial condition and results of operations.

 

We have established manufacturing facilities in Thailand and the Netherlands, and commenced original equipment manufacturing, or OEM, with local partners in Vietnam and Malaysia. As we expand our overseas manufacturing capacities, we are exposed to a number of risks including operational risks and compliance risks in our overseas capacities. The production costs of our overseas capacities are currently higher than those of our PRC subsidiaries. We also face risks in compliance with local environmental, safety, health and other labor laws and regulations in each of the jurisdictions we operate.

 

We plan to build or acquire new facilities to increase our annualized in-house manufacturing capacity of cells and modules from 3,500 megawatts, or MW, and 5,000 MW, respectively, as of December 31, 2015 to 5,000 MW and 6,000 MW, respectively, as of December 31, 2016. We plan to incur capital expenditures of up to $250 million to accomplish our 2016 expansion plans in our manufacturing segment. If we fail to implement that plan as expected, experience a delay in the ramp up or fail to achieve our targeted yields, our business and results of operations may be materially and adversely affected.

 

Problems with product quality or product performance could damage our reputation, or result in a decrease in customers and revenues, unexpected expenses or loss of market share, and may cause us to incur significant warranty expenses.

 

Our products may contain defects that are not detected until after they are shipped or are installed because we cannot test for all possible scenarios. Unlike PV modules, which are subject to certain uniform international standards, solar cells generally are not subject to uniform international standards, and it is often difficult to determine whether solar power product defects are a result of defective solar cells, other defective components of PV modules or other reasons. Furthermore, the solar wafers and other components that we purchase from third-party suppliers are typically sold to us with no or only limited warranties. Also, as many of our customers place orders for bulk deliveries, the large number of items delivered increases the likelihood that a defective or low quality module may be delivered to a customer. We have received in the past, and may receive from time to time in the future, complaints from certain customers that portions of our PV modules have quality deficiencies. For example, in certain instances in the past, customers raised concerns about the stated versus actual performance output of some of our PV modules. We determined that these concerns resulted from differences in calibration standards we used. However, the corrective actions and procedures that we took may turn out to be inadequate to prevent further similar incidents or to protect against future errors or defects. If we deliver PV module products that do not satisfy our customers’ or end users’ quality requirements, or if there is a perception that our products are of poor quality, our credibility and the market acceptance and sales of our PV module products could be harmed. We may also incur substantial expense to replace products that do not meet our quality standards.

 

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PV modules are designed to operate for a long period of time and sometimes in harsh natural conditions. We typically sell our PV modules with a ten year warranty for defects in material and workmanship and a minimum power output warranty of up to 25 years following the date of purchase or installation and we further guarantee that module power output will not decrease by more than approximately 0.7% per year after the initial year of service. We believe our warranty periods are consistent with industry practice. We only began to sell PV modules in November 2004. Although we conduct accelerated reliability testing of our PV modules, our PV modules have not been and cannot be tested in an environment simulating the 25-year warranty period. As a result, we may be subject to unexpected warranty expense and associated harm to our financial results for as long as 25 years after the sale of our products. Our warranty provisions for the years ended December 31, 2013, 2014 and 2015 were $16.6 million, $21.6 million and $28.1 million, respectively. Any increase in the defect rate of our products would cause us to increase the amount of our warranty reserves and have a correspondingly negative impact on our operating results. Furthermore, widespread product failures may damage our market reputation, reduce our market share and cause our sales to decline.

 

We may not be successful in the commercial production of new products, which could adversely affect our business and prospects.

 

We may develop and produce new products from time to time, such as high-efficiency monocrystalline and multicrystalline modules. In 2012, we introduced our “Honey” cell technology, which we have used to develop and manufacture a number of new products, and in January 2015 we launched two new high-efficiency multicrystalline and monocrystalline Honey Plus modules that we believe offer significant upgrades on our previous Honey modules. The two modules are expected to become available in select markets in the first half of 2015 with a worldwide launch scheduled in 2016. However, there is no guarantee that we will be able to successfully launch these products or that they, or any other products that we develop, will become commercially successfully. We may be unable to generate sufficient customer demand for our new products if we are unable to develop and produce new products that provide the expected performance in a cost-effective manner. If we fail to generate demand for our new products, our business and prospects may be adversely affected and we may be unable to recoup our investment in the development and production of such products.

 

Existing regulations and policies and changes to these regulations and policies may present technical, regulatory and economic barriers to the purchase and use of solar power products, which may significantly reduce demand for our products.

 

The market for electricity generation products is heavily influenced by government regulations and policies concerning the electric utility industry, as well as policies adopted by electric utilities. These regulations and policies often relate to electricity pricing and technical interconnection of customer-owned electricity generation. In a number of countries, these regulations and policies are being modified and may continue to be modified. Customer purchases of, or further investment in the research and development of, alternative energy sources, including solar power technology, could be deterred by these regulations and policies, which could result in a significant reduction in the demand for our products. For example, without a regulatory mandated exception for solar power systems, utility customers are often charged interconnection or standby fees for putting distributed power generation on the electric utility grid. These fees could increase the cost to our customers of using our solar power products and make them less desirable, thereby harming our business, prospects, financial condition and results of operations.

 

We anticipate that our products and their installation will be subject to oversight and regulation in accordance with national and local regulations relating to building codes, safety, environmental protection, utility interconnection and metering and related matters. It is difficult to track the requirements of individual jurisdictions and design products to comply with the varying standards. Any new government regulations or utility policies pertaining to our solar power products may result in significant additional expenses to us and, as a result, could cause a significant reduction in demand for our solar power products.

 

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If solar power technology is not adopted widely, or sufficient demand for solar power products does not develop or takes longer to develop than we anticipate, our revenues may further decline and we may be unable to sustain our profitability.

 

The solar power market is at a relatively early stage of development, and the extent of acceptance of solar power products is uncertain. Market data on the solar power industry are not as readily available as those for other more established industries where trends can be assessed more reliably from data gathered over a longer period of time. We sell and market our products to a growing number of worldwide markets where government incentives are accelerating the adoption of solar power. In recent years, we have also increased our sales in newer and emerging solar power markets, which include the United Kingdom and India, as well as other markets in Asia, Africa, the Middle East, Latin America, and the Caribbean Islands. Many factors may affect the viability of widespread adoption of solar power technology and demand for solar power products in our targeted markets, including:

 

·                                          availability of government incentives to support the development of the solar power industry;

 

·                                          availability and access to grid infrastructure, including interconnection facilities, for solar power producers;

 

·                                          success of other alternative energy generation technologies, such as wind power, hydroelectric power and biomass;

 

·                                          fluctuations in economic and market conditions that affect the viability of conventional and other renewable energy sources, such as increases or decreases in the prices of oil and other fossil fuels;

 

·                                          capital expenditures by end users of solar power products, which tend to decrease when the economy slows down; and

 

·                                          deregulation of the electric power industry and broader energy industry.

 

If solar power technology is not adopted widely or sufficient demand for solar power products does not develop or takes longer to develop than we anticipate, our revenues may suffer and we may be unable to sustain our profitability.

 

Further technological changes in the solar power industry could render our products uncompetitive or obsolete, which could reduce our market share and cause our sales and profit to decline.

 

The solar power market is characterized by evolving technologies and standards that result in improved features, such as more efficient and higher power output, improved aesthetics and smaller size. This requires us to develop new solar power products and enhance existing products to keep pace with evolving technologies and changing customer requirements. A variety of competing solar technologies that other companies may develop could prove to be more cost-effective and perform better than our technologies. For example, thin-film technologies are competing technologies in the solar power industry. According to GTM Research, thin-film production was estimated to be 5 gigawatt, or GW, in 2015, compared to approximately 58 GW for crystalline technology. Thin-film technologies allow for lower production costs for solar cells by using lower amounts of semiconductor materials. Thin-film solar cells generally have a lower conversion efficiency rate than crystalline solar cells. Further development in competing solar power technologies may result in lower manufacturing costs or higher product performance than those expected from our PV modules. We will need to invest significant financial 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 our technology, enhance our existing solar power products, or develop and introduce new products, could cause our products to become uncompetitive or obsolete, which could reduce our market share and cause our revenues to decline.

 

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Non-compliance with present or future construction and environmental regulations may result in potentially significant monetary damages and fines.

 

In the past, we began constructing and operating facilities without having obtained all of the necessary construction and environmental permits. Although we have subsequently obtained most of the construction and environmental permits and approvals for these facilities, we could be subject to fines or penalties for our past non-compliance and for those permits and approvals that we have not yet obtained.

 

Because our manufacturing processes generate noise, waste water, gaseous wastes and other industrial wastes, we are required to comply with national and local environmental regulations. If we fail to comply with present or future environmental regulations, we may be required to pay substantial fines, suspend production or cease operations. Any failure by us to control the use or to adequately restrict the discharge of hazardous substances could subject us to potentially significant monetary damages and fines or suspensions in our business operations, which would have a materially adverse effect on our business and results of operations.

 

In particular, the manufacturing processes for producing polysilicon employ processes that generate toxic waste products, including the highly volatile and highly toxic substance silicon-tetrachloride. We purchase our polysilicon from our suppliers in China, South Korea and Germany. If any of our suppliers fails to comply with environmental regulations for the production of polysilicon and the discharge of the highly toxic waste products, we may face negative publicity which may have a material adverse effect on our business and results of operations. Furthermore, if any of our suppliers are forced to suspend or shut down production due to violations of environmental regulations, we may not be able to secure enough polysilicon for our production needs on commercially reasonable terms, or at all.

 

We cannot assure you that we will be able to obtain the permits and approvals necessary for all of our future projects. If we fail to receive any permit or approval, we may be ordered to suspend construction and rectify the non-compliance, be charged a fine and, in the worst case scenario, be required to demolish solar power projects, which may materially and adversely affect our business and financial condition.

 

The failure to comply with PRC land laws and regulations regarding the lease of government allocated land use rights may materially and adversely affect our business, financial condition, results of operations and prospects.

 

We lease government allocated land use rights for our 120 MW solar power projects that are currently under construction in Yancheng City, Jiangsu Province. The lease contract was entered into in October 2012 and has a term of 20 years. However, these leases may not meet certain land-related legal requirements under PRC laws and regulations. According to the Interim Measures on Administration of Government Allocated Land Use Right, the lease of government allocated land use rights must first receive approval from the appropriate land administration departments, followed by a series of procedures that the owner of the government allocated land use right must complete, including signing the land use right grant contract and paying the land grant fee.  Upon completion of these procedures, the landlord and the lessee must go through the registration formalities in respect of the leasehold interests. Although our lease of government allocated land use rights in Yancheng has been approved by the local land administration department, because we have not yet completed certain statutory procedures, our lease has not been properly registered and thus our leasehold interests may not be legally protected.  We are in the process of working with the landlord to complete the required procedures, but we cannot ensure that the registration process will be completed in a timely manner or at all.  If because of a failure to complete the registration process we are unable to continue using these lands, our business and financial condition could be materially and adversely affected.

 

Our future success substantially depends on our ability to significantly expand both our manufacturing capacity and output and solar power projects development capabilities, which exposes us to a number of risks and uncertainties.

 

Our future success depends on our ability to significantly increase both our manufacturing capacity and output. If we are unable to do so, we may be unable to expand our business, decrease our costs per watt, maintain our competitive position and improve our profitability. Our ability to establish additional manufacturing capacity and increase output is subject to significant risks and uncertainties, including:

 

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·                                          the need to raise additional funds to purchase raw materials or to build additional manufacturing facilities, which we may be unable to obtain on commercially viable terms or at all;

 

·                                          delays and cost overruns as a result of a number of factors, many of which are beyond our control, such as increases in the price of polysilicon and problems with equipment vendors, particularly with respect to major equipment such as ingot pulling or growing machines;

 

·                                          delays or denial of required approvals by relevant government authorities;

 

·                                          diversion of significant management attention and other resources; and

 

·                                          failure to execute our expansion plan effectively.

 

If we are unable to establish or successfully operate additional manufacturing capacity, or if we encounter any of the risks described above, we may be unable to expand our business as planned. Moreover, even if we do expand our manufacturing capacity we might not be able to generate sufficient customer demand for our solar power products to support our increased production levels.

 

In particular, we believe that the expansion of our manufacturing capacity, including overseas, is an integral part of our strategy to achieve a grid parity cost structure during the solar industry consolidation. Our ability to meet our estimate for the scale of production needed to achieve grid parity is affected by a number of factors, including our ability to improve and maintain the degree of vertical integration and to increase our efficiencies and margins, the likelihood that we may approach or reach a point of diminishing returns as we continue to expand our scale, the average purchase price we will pay for silicon in the future to meet our expansion requirements, and the cost of conventional grid electricity which will determine at which point grid parity can be reached. We might not be able to meet our desired scale of production in order to fully implement our strategy. By expanding some of our module manufacturing outside of the PRC, we also subject ourselves to a number of additional risks, including risks related to interacting with foreign government authorities and foreign laws and regulations.

 

In addition, in order to increase our production output of solar PV products, it may be necessary to outsource certain phases of the production process, such as the manufacturing of silicon wafers, to third party manufacturers. Outsourcing portions of the production process leave us more vulnerable to fluctuations in the costs of outsourced products and could further reduce our profit margins. In addition, outsourcing exposes us to quality control, payment, delivery and a number of other risks that, if realized, could materially and adversely affect our business and results of operations.

 

Our business depends substantially on the continuing efforts of our executive officers, and our business may be severely disrupted if we lose their services.

 

Our future success depends substantially on the continued services of our executive officers, especially Mr. Jifan Gao, our chairman and chief executive officer. If one or more of our executive officers or key employees were unable or unwilling to continue in their present positions, we might not be able to replace them easily or at all. Our business may be severely disrupted, our financial condition and results of operations may be materially and adversely affected, and we may incur additional expenses to recruit, train and retain personnel.  Since our industry is characterized by high demand and intense competition for talent, we also may not be able to attract or retain additional highly skilled employees or other key personnel that we will need to achieve our strategic objectives. As we are still a relatively young company and our business has grown rapidly, our ability to train and integrate new employees into our operations may not meet the growing demands of our business. In addition, we may encounter higher attrition rates in the future, particularly if China continues to experience strong economic growth and because of the going private transaction proposed by Mr. Jifan Gao, our chairman and chief executive officer, and Shanghai Xingsheng Equity Investment & Management Co., Ltd., a subsidiary of Industrial Bank Co., Ltd. incorporated in the People’s Republic of China, or together, the Buyer Group.

 

If any of our executive officers or key employees joins a competitor or forms a competing company, we may lose customers, suppliers, know-how and key professionals and staff members. Each of our executive officers has entered into an employment agreement with us, which contains non-competition provisions. If any dispute arises between our executive officers and us, these agreements may not be enforceable in China in light of the uncertainties with China’s legal system, or in another country where they obtain employment. See “— Risks Related to Doing Business in China—Uncertainties with respect to the Chinese legal system could have a material adverse effect on us.”

 

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If we are unable to attract, train and retain qualified technical personnel, our business may be materially and adversely affected.

 

Our future success depends, to a significant extent, on our ability to attract, train and retain qualified technical personnel, particularly those with expertise in the solar power industry. There is substantial competition for qualified technical personnel, and we might not be able to attract or retain our qualified technical personnel. If we are unable to do so, our business may be materially and adversely affected.

 

If we fail to manage our growth effectively, particularly the growth of our new operating segment for solar power projects, our business may be adversely affected.

 

We have experienced a period of rapid growth and expansion, in particular relating to our solar power projects business, which has placed, and continues to place, significant strain on our management personnel, systems and resources. To accommodate our growth, we anticipate that we will need to implement a variety of new and upgraded operational and financial systems, procedures and controls, including the improvement of our accounting and other internal management systems, all of which require substantial management efforts. We also will need to continue to expand, train, manage and motivate our workforce, manage our customer relationships and manage our relationship with foundries and assembly and testing houses. All of these endeavors will require substantial management effort and skill and incurrence of additional expenditures. We might not be able to manage our growth effectively, and any failure to do so may have a material adverse effect on our business.

 

We face risks associated with the marketing, distribution and sale of our solar power products internationally, and if we are unable to effectively manage these risks, they could impair our ability to expand our business abroad.

 

In 2013, 2014 and 2015, we sold approximately 66.7%, 67.3% and 71.5%, respectively, of our products to customers outside of China. The marketing, distribution and sale of our solar power products in the international markets expose us to a number of risks, including:

 

·                                          fluctuations in currency exchange rates;

 

·                                          difficulty in engaging and retaining distributors who are knowledgeable about, and can function effectively in, overseas markets;

 

·                                          increased costs associated with maintaining marketing efforts in various countries;

 

·                                          difficulty and costs relating to compliance with the different commercial and legal requirements of the overseas markets in which we offer our products;

 

·                                          trade barriers such as export requirements, tariffs, taxes and other restrictions and expenses, which could increase the prices of our products and make us less competitive in some countries; and

 

·                                          demand for solar power products in overseas markets as influenced by the global economic downturn and its effects.

 

We may be exposed to intellectual property infringement or misappropriation claims by third parties, which, if determined adversely to us, could cause us to pay significant damage awards.

 

Our success depends largely on our ability to use and develop our technology and know-how without infringing the intellectual property rights of third parties. The validity and scope of claims relating to solar power technology patents involve complex scientific, legal and factual issues and analysis and, therefore, may be highly uncertain. We may be subject to litigation involving claims of patent infringement or violation of intellectual property rights of third parties. The defense and prosecution of intellectual property suits, patent opposition proceedings and related legal and administrative proceedings can be both costly and time consuming and may significantly divert the efforts and resources of our technical and management personnel. An adverse determination in any such litigation or proceedings to which we may become a party 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 manufacturing and sale of our products or the use of our technologies. Protracted litigations could also result in our customers or potential customers deferring or limiting their purchase or use of our products until resolution of such litigation.

 

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Our failure to protect our intellectual property rights may undermine our competitive position, and litigation to protect our intellectual property rights or defend against third-party allegations of infringement may be costly.

 

We rely primarily on patent, trademark, trade secret, copyright law and other contractual restrictions to protect our intellectual property. Nevertheless, these afford only limited protection and the actions we take to protect our intellectual property rights may not be adequate. Third parties, including current and former employees, may infringe or misappropriate our proprietary technologies or other intellectual property rights, which could have a material adverse effect on our business, financial condition or operating results. Policing unauthorized use of proprietary technology can be difficult and expensive. Also, litigation may be necessary to enforce our intellectual property rights, protect our trade secrets or determine the validity and scope of the proprietary rights of others. 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 rights and may harm our business, prospects and reputation. Implementation of PRC intellectual property-related laws has historically been lacking, primarily because of ambiguities in the PRC laws and difficulties in enforcement. Accordingly, intellectual property rights and confidentiality protections in China may not be as effective as in the United States or other countries.

 

We have limited insurance coverage and may incur losses resulting from product liability claims.

 

As with other solar power product manufacturers, we are exposed to risks associated with product liability claims should the use of our solar power products results in injury. Since our products generate electricity, it is possible that users could be injured or killed by our products as a result of product malfunctions, defects, improper installation or other causes. We began commercial shipment of our PV modules in November 2004 and we cannot predict whether product liability claims will be brought against us in the future or the effect of any resulting negative publicity on our business. We have limited worldwide product liability insurance coverage for our products manufactured in China. Product liability claims successfully brought against us in excess of our coverage amount could result in monetary damages and require us to make significant payments.

 

If we fail to maintain an effective system of internal control over financial reporting, we may lose investor confidence in the reliability of our financial statements.

 

We are subject to reporting obligations under the U.S. securities laws. The Securities and Exchange Commission, or SEC, as required by Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, adopted rules requiring every public company to include a management report on such company’s internal control over financial reporting in its annual report, which contains management’s assessment of the effectiveness of the company’s internal control over financial reporting. In addition, an independent registered public accounting firm must render an opinion on the effectiveness of the company’s internal control over financial reporting.

 

Our management has concluded that our internal control over financial reporting was effective as of December 31, 2015. See “Item 15. Controls and Procedures.” If we fail to maintain effective internal control over financial reporting in the future, it could result in the loss of investor confidence in the reliability of our financial statements and negatively impact the trading price of our ADSs. We have incurred and anticipate that we will continue to incur considerable costs, management time and other resources in an effort to comply with Section 404 and other requirements of the Sarbanes-Oxley Act.

 

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Our independent registered public accounting firm may be temporarily suspended from practicing before the SEC, if it is unable to continue to satisfy SEC investigation requests in the future. If a delay in completion of our audit process occurs as a result, we could be unable to timely file certain reports with the SEC, which may lead to the delisting of our stock.

 

We have most of our operations in China. Certain of our independent registered public accounting firm’s audit documentation related to their audit reports included in this annual report are located in China, and certain audit procedures are taken place within China’s borders. The Public Company Accounting Oversight Board, or the PCAOB, is currently unable to conduct inspections in China or review audit documentation located within China without the approval of Chinese authorities.

 

On January 22, 2014, Judge Cameron Elliot, an SEC administrative law judge, issued an initial decision suspending the Chinese member firms of the “Big Four” accounting firms, including our independent registered public accounting firm from practicing before the SEC for six months. In February 2014, the initial decision was appealed. In February 2015, the Chinese member firms of the “Big Four” accounting firms reached a settlement with the SEC over the dispute in relation to access to such accounting firms’ audit documents. As part of the settlement, each Chinese member firms of the “Big Four” accounting firms will pay $500,000 to the SEC while Chinese member firms of the “Big Four” accounting firms will not be suspended from practicing before the SEC unless it fails to comply with certain compliance and cooperation requirements from the SEC.

 

If the settlement terms are not adhered to, our independent registered public accounting firm may be suspended from practicing before the SEC which could in turn delay the timely filing of our financial statements with the SEC. In addition, it could be difficult for us to timely identify and engage another qualified independent auditor to replace our independent auditor. A delinquency in our filings with the SEC may result in the initiation of the delisting procedures, which could adversely harm our reputation and have other material adverse effects on our results of operation and financial condition.

 

Our independent registered public accounting firm’s audit documentation related to their audit reports included in our annual report may include audit documentation located in China. PCAOB currently cannot inspect audit documentation located in China and, as such, you may be deprived of the benefits of such inspection.

 

Our independent registered public accounting firm issued an audit opinion on the financial statements included in our annual report filed with the SEC. As auditors of companies that are traded publicly in the United States and a firm registered with the PCAOB, our auditor is required by the laws of the United States to undergo regular inspections by the PCAOB. However, work papers located in China are not currently inspected by the PCAOB because the PCAOB is currently unable to conduct inspections without the approval of the Chinese authorities.

 

Inspections of certain other firms that the PCAOB has conducted outside of China have identified deficiencies in those firms’ audit procedures and quality control procedures, which may be addressed as part of the inspection process to improve future audit quality. However, the PCAOB is currently unable to inspect an auditor’s audit work related to a company’s operations in China and where such documentation of the audit work is located in China. As a result, our investors may be deprived of the benefits of PCAOB’s oversight of our auditors through such inspections.

 

The inability of the PCAOB to conduct inspections of our auditors’ work papers in China makes it more difficult to evaluate the effectiveness of our auditor’s audit procedures or quality control procedures as compared to auditors outside of China that are subject to PCAOB inspections. Investors may consequently lose confidence in our reported financial information and procedures and the quality of our financial statements.

 

Fluctuations in exchange rates could adversely affect our business.

 

The value of the Renminbi against the U.S. dollar, Euro and other currencies is affected by, among other things, changes in China’s political and economic conditions and China’s foreign exchange policies. On July 21, 2005, the PRC government changed its decade-old policy of pegging the value of the Renminbi to the U.S. dollar. Under the new policy, the Renminbi was permitted to fluctuate within a narrow and managed band against a basket of certain foreign currencies. This change in policy caused the Renminbi to appreciate approximately 21.5% against the U.S. dollar over the following three years. However, from July 2008 until June 2010, the Renminbi traded stably within a narrow range against the U.S. dollar. In June 2010, the People’s Bank of China increased the flexibility of the exchange rate and between June 30, 2010 and December 31, 2013, the value of the Renminbi appreciated approximately 12.0% against the U.S. dollar, although in 2014, the value of the Renminbi depreciated approximately 2.5% against the U.S. dollar. In August 2015, the People’s Bank of China changed the way it calculates the mid-point price of Renminbi against the U.S. dollar, requiring the market-makers who submit for reference rates to consider the previous day’s closing spot rate, foreign-exchange demand and supply as well as changes in major currency rates. As a result, in 2015, the value of the Renminbi depreciated approximately 5.77% against the U.S. dollar, and from December 31, 2015 through March 25, 2016, the value of the Renminbi further depreciated approximately 0.44% against the U.S. dollar. We cannot predict how government policy will impact the Renminbi exchange rate going forward or whether new policies will be adopted by the PRC government.

 

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Most of our sales are currently denominated in Renminbi, U.S. dollars, Euros, GBP and Japanese Yen, while a substantial portion of our costs and expenses is denominated in Renminbi, with the remainder in U.S. dollars. Fluctuations in currency exchange rates, particularly among the U.S. dollar, Renminbi, Euros, GBP and Japanese Yen, may affect our net profit margins and could result in fluctuations in foreign currency exchange and operating gains and losses. We had a foreign exchange loss of approximately $25.1 million in 2015. We cannot predict the impact of future exchange rate fluctuations on our results of operations and may incur net foreign currency losses in the future. In addition, as we rely entirely on dividends paid to us by our operating subsidiaries, a significant portion of which are in China, any significant fluctuation of the Renminbi may have a material adverse effect on our revenues and financial condition, and the value of, and any dividends payable on, our ordinary shares.

 

We have entered into a series of foreign currency forward contracts with commercial banks to hedge our exposure to foreign currency exchange risk. As of December 31, 2015, we had foreign currency forward contracts with a total contract value of approximately $144.4 million. We do not use foreign currency forward contracts to hedge all of our foreign currency denominated commitments. As with all hedging instruments, there are risks associated with the use of foreign currency forward contracts. While the use of such foreign currency forward contracts provides us with protection from certain fluctuations in foreign currency exchange, we forgo the potential benefits that might result from favorable fluctuations in foreign currency exchange. Any default by the counterparties to these transactions could adversely affect our financial condition and results of operations. Furthermore, these financial hedging transactions may not provide adequate protection against future foreign currency exchange rate fluctuations and, consequently, such fluctuations could adversely affect our financial condition and results of operations. See “Item 11. Quantitative and Qualitative Disclosures about Market Risk—Foreign Exchange Risk.”

 

We may be classified as a passive foreign investment company, which could result in adverse U.S. federal income tax consequences to U.S. Holders of our ADSs or ordinary shares.

 

Based on the market price of our ADSs, the value of our assets, and the composition of our income and assets, we do not believe we were a passive foreign investment company, or PFIC, for U.S. federal income tax purposes for our taxable year ended December 31, 2015 and do not expect to become a PFIC for the current taxable year ending December 31, 2016. However, the application of the PFIC rules is subject to uncertainty in several respects, and we cannot assure you the U.S.  Internal Revenue Service will not take a contrary position. A non-U.S. corporation will be a PFIC for any taxable year if either (i) at least 75% of its gross income for such year is passive income or (ii) at least 50% of the value of its assets (based on an average of the quarterly values of the assets) during such year is attributable to assets that produce passive income or are held for the production of passive income.

 

A separate determination must be made after the close of each taxable year as to whether we were a PFIC for that year. Changes in the composition of our income and assets or the value of our assets may cause us to become a PFIC for the current year or any subsequent year. The determination of whether we are or will become a PFIC for any taxable year may depend, in part, upon the value of our goodwill and other intangibles not reflected on our balance sheet (which may be determined based upon the market value of the ADSs or ordinary shares from time to time, which may be volatile) and may also be affected by how, and how quickly, we spend our liquid assets and the cash raised in offerings. Among other matters, if our market capitalization is less than anticipated or subsequently declines, we may be or become a PFIC for the current or future taxable years. Further, while we believe our classification methodology and valuation approach is reasonable, it is possible that the IRS may challenge our classification or valuation of our goodwill and other intangibles, which may result in our company being or becoming classified as a PFIC for the current or one or more future taxable years.

 

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If we are a PFIC for any taxable year during which a U.S. Holder (as defined in “Item 10. Additional Information—E. Taxation—United States Federal Income Taxation”) holds an ADS or an ordinary share, certain adverse U.S. federal income tax consequences could apply to such U.S. Holder. See “Item 10. Additional Information—E. Taxation—United States Federal Income Taxation—Passive Foreign Investment Company.”

 

Risks Related to Doing Business in China

 

Adverse changes in political and economic policies of the PRC government could have a material adverse effect on the overall economic growth of China, which could reduce the demand for our products and materially and adversely affect our competitive position.

 

Most of our business operations are conducted in China and some of our sales are made in China. Accordingly, our business, financial condition, results of operations and prospects are affected significantly by economic, political and legal developments in China. The Chinese economy differs from the economies of most developed countries in many respects, including:

 

·                                          the amount of government involvement;

 

·                                          the level of development;

 

·                                          the growth rate;

 

·                                          the control of foreign exchange; and

 

·                                          the allocation of resources.

 

While the Chinese economy has grown significantly in the past 30 years, the growth has been uneven, both geographically and among various sectors of the economy. The PRC government has implemented various measures to encourage economic growth and guide the allocation of resources. Some of these measures benefit the overall Chinese economy, but may also have a negative effect on us. For example, our financial condition and results of operations may be adversely affected by government control over capital investments or changes in tax regulations that are applicable to us.

 

The Chinese economy has been transitioning from a planned economy to a more market-oriented economy. Although in recent years the PRC government has implemented measures emphasizing the utilization of market forces for economic reform, the reduction of state ownership of productive assets and the establishment of sound corporate governance in business enterprises, a substantial portion of the productive assets in China is still owned by the PRC government. The continued control of these assets and other aspects of the national economy by the PRC government could materially and adversely affect our business. The PRC government also exercises significant control over Chinese economic growth through the allocation of resources, controlling payment of foreign currency-denominated obligations, setting monetary policy and providing preferential treatment to particular industries or companies. Efforts by the PRC government to control the pace of growth of the Chinese economy could result in decreased capital expenditure by solar energy users, which in turn could reduce demand for our products.

 

Uncertainties with respect to the Chinese legal system could have a material adverse effect on us.

 

We conduct most of our manufacturing operations through our wholly-owned subsidiaries in China, which are limited liability companies established in China. Our subsidiaries in China are generally subject to laws and regulations applicable to foreign investment in China and, in particular, laws applicable to wholly foreign-owned enterprises. The PRC legal system is based on written statutes. Prior court decisions may be cited for reference but have limited precedential value. Since 1979, PRC legislation and regulations have significantly enhanced the protections afforded to various forms of foreign investments in China. However, since these laws and regulations are relatively new and the PRC legal system continues to rapidly evolve, the interpretations of many laws, regulations and rules are not always consistent and enforcement of these laws, regulations and rules involves uncertainties. We cannot predict the effect of future developments in the PRC legal system, including the promulgation of new laws, changes to existing laws or the interpretation or enforcement thereof, the preemption of local regulations by national laws, or the overturn of local government decisions by the superior government. These uncertainties may limit legal protections available to us. In addition, any litigation in China may be protracted and result in substantial costs and diversion of resources and management attention.

 

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Solar power projects are highly regulated in China and we may fail to comply with laws and regulations regarding the development, construction and operation of solar power projects.

 

The development, construction and operation of solar power projects are highly regulated in China. Our operations must comply with various laws and regulations, including those relating to project approvals and filings, land use, planning and construction, environmental protection, fire control and electricity production and transmission. Failing to obtain or make the required approvals, permits, licenses, filings or to comply with the conditions associated therewith could result in fines, sanctions, suspensions, revocations or prevent us from renewing approvals, permits or licenses, or even subject us to criminal penalties, any of which could have a material adverse effect on our business, financial condition and results of operations. In addition, any new government regulations pertaining to solar power projects may result in significant additional expenses to the development, construction and operation of our solar power projects located in China and, as a result, could cause a significant reduction in demand for our solar power projects and services. We cannot assure you that we will be able to promptly and adequately adjust to changes in laws and regulations, which may materially and adversely affect our business, financial condition and results of operations.

 

The PRC government may determine that the power plant agreements that establish the structure for the acquisition and operation of certain solar power plants before grid connection in China do not comply with PRC regulations.

 

We are in the business of operating and selling solar power plants, which is subject to a series of national and regional rules and regulations, including Circular on Regulation of Investment and Development of Solar Energy Electric Power Plants promulgated by National Energy Bureau on October 28, 2014 [Guo Neng Xin Neng [2014] No. 477], the NEB Circular.  The NEB Circular prohibits the transfer of solar power project before connecting the solar power project to the State electric power grid, or the State Grid, and requires the investors to make filings with regulators upon a material change of investors during the construction of the projects. Many provisions of the NEB Circular are uncertain and many of its terms lack clear definitions.

 

We have entered into power plant agreements with certain project entities that hold quotas and construction permits for downstream solar power projects, or the Project Entities.  These power plant agreements enable us, (1) to provide loan financing to the Project Entities for the construction of the power plant, which loan agreements require 100% of the shares of the Project Entities be pledged to us, (2) to acquire 100% of the equity interests of the Project Entity after the completion of construction and connection of the power plants to the State Grid, (3) to have the exclusive rights to select vendors and contractors, as well as to monitor the design and construction of the solar power projects, and (4) to receive all of the income generated from the operation of the solar power plants and consolidate, as variable interest entities, or VIEs, the Project Entities into our consolidated financial statements in accordance with U.S. GAAP and receive dividends from the VIEs. As of December 31, 2014 and 2015, the total number of Projects Entities that we consolidated under the power plant agreements were one and 31, respectively.

 

In the opinion of our PRC counsel, Fangda Partners, the terms contained and transactions contemplated by the power plant agreements are in compliance with existing PRC laws, rules and regulations.  However, there are still substantial uncertainties regarding the interpretations and application of current PRC laws, rules and regulations. If the PRC government finds that the arrangements under the power plant agreements do not comply with its laws and regulations, including those under the NEB Circular, then the PRC regulatory authorities, including the local authorities in charge of power plants, would have broad discretion in dealing with such violations or failures, including, without limitation:

 

·                                          revoking our business and operating licenses in solar power projects;

 

·                                          discontinuing or restricting our operations of the relevant solar power projects;

 

·                                          imposing fines or confiscating any of our income that they deem to have been obtained through illegal operations;

 

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·                                          imposing conditions or requirements with which we or our PRC subsidiary and consolidated entities may not be able to comply;

 

·                                          requiring us or our PRC subsidiary and consolidated entities to restructure the relevant ownership structure or operations;

 

·                                          restricting or prohibiting our use of the proceeds from this offering to finance the business and operations of the power plant agreements and their subsidiaries; or

 

·                                          taking other regulatory or enforcement actions that could be harmful to our business.

 

Any of these actions could significantly disrupt our business operations, and may materially and adversely affect our business, financial condition and results of operations. In addition, it is unclear what the impact would be on us and our ability to consolidate the financial results of any of the Project Entities in our consolidated financial statements if the PRC government authorities find our legal structure and contractual arrangements violate PRC laws, rules and regulations. If any of these penalties result in our inability to direct the activities of the Project Entities that most significantly impact its economic performance and/or our failure to receive the economic benefits from the Project Entities, we may not be able to consolidate the Project Entities into our consolidated financial statements in accordance with U.S. GAAP.

 

Our ability to make distributions and other payments to our shareholders depends to a significant extent upon the distribution of earnings and other payments made by our subsidiaries in the PRC.

 

We conduct most of our operations in the PRC through PRC subsidiaries. Our ability to make distributions or other payments to our shareholders depends on payments from our subsidiaries in the PRC, whose ability to make such payments is subject to PRC regulations. Regulations in the PRC currently permit payment of dividends only out of accumulated profits as determined in accordance with accounting standards and regulations in China. According to the relevant PRC laws and regulations and the respective articles of association of our PRC subsidiaries, our PRC subsidiaries are required to set aside at least 10% of its after-tax profit based on PRC accounting standards each year to its general reserves until the accumulative amount of these reserves reaches 50% of its registered capital. These reserves are not distributable as cash dividends. As of December 31, 2015, these general reserves amounted to $58.6 million, accounting for 5.1% of the registered capital of our PRC subsidiaries. In addition, under the PRC Enterprise Income Tax Law and its Implementation Regulations, or the EIT Law, which became effective January 1, 2008, dividends from Trina China, one of our PRC subsidiaries, to us are subject to a 10% withholding tax to the extent that we are considered a non-resident enterprise under the EIT Law. See “—The expiration or reduction of tax incentives by the PRC government may have a material adverse effect on our results of operations” and “Item 4. Information on the Company—B. Business Overview—Regulation—Tax.” Furthermore, if our PRC subsidiaries incur debt on its own behalf in the future, the instruments governing the debt may restrict their ability to pay dividends or make other distributions to us.

 

Restrictions on currency exchange may limit our ability to receive and use our revenues effectively.

 

Certain portions of our revenues and expenses are denominated in Renminbi. If our revenues denominated in Renminbi increase or expenses denominated in Renminbi decrease in the future, we may need to convert a portion of our revenues into other currencies to meet our foreign currency obligations, including, among others, payment of dividends declared, if any, in respect of our ordinary shares or ADSs. Under China’s existing foreign exchange regulations, foreign currency under current account transactions such as dividend payments and trade-related transactions are generally convertible. Accordingly, our PRC subsidiaries are able to pay dividends in foreign currencies without prior approval from the State Administration of Foreign Exchange, or the SAFE, by complying with certain procedural requirements. However, the PRC government could take further measures in the future to restrict access to foreign currencies for current account transactions.

 

Foreign exchange transactions by our PRC subsidiaries under capital accounts continue to be subject to significant foreign exchange controls and require the approval of, or registration with, PRC governmental authorities. In particular, if each of our PRC subsidiaries borrows foreign currency loans from us or other foreign lenders, these loans must be registered with the SAFE, and if we finance our PRC subsidiaries by means of additional capital contributions, these capital contributions must be approved by certain government authorities including the Ministry of Commerce, or MOFCOM, or its local counterparts. These limitations could affect the ability of our PRC subsidiaries to obtain foreign exchange through debt or equity financing.

 

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SAFE regulations may limit our ability to finance our PRC subsidiaries effectively and affect the value of your investment and may make it more difficult for us to pursue growth through acquisition.

 

If we finance our PRC subsidiaries through additional capital contributions, the MOFCOM in China or its local counterpart must approve the amount of these capital contributions. On August 29, 2008, SAFE promulgated Circular 142, a notice regulating the conversion by a foreign-invested company of foreign currency into Renminbi by restricting how the converted Renminbi may be used. The notice requires that Renminbi converted from the foreign currency-denominated capital of a foreign-invested company may only be used for purposes within the business scope approved by the applicable governmental authority and may not be used for equity investments in the PRC unless otherwise provided by laws and regulations. In addition, SAFE strengthened its oversight of the flow and use of Renminbi funds converted from the foreign currency denominated capital of a foreign-invested company. The use of such Renminbi may not be changed without approval from SAFE, and may not be used to repay Renminbi loans if the proceeds of such loans have not yet been used for purposes within the company’s approved business scope.  Furthermore, on November 9, 2010, SAFE promulgated a notice on relevant issues concerning strengthening the administration of foreign exchange business, which requires the authenticity of settlement of net proceeds from an offshore offering to be closely examined and the net proceeds to be settled in the manner described in the offering documents. In order to further reform the foreign exchange administration system, SAFE issued the Circular on Reform of Administration Model of the Settlement of Foreign Currency Capital of Foreign-Invested Enterprises on March 30, 2015, or Circular 19, which took effect from June 1, 2015 and replaced the SAFE Circular 142.  Circular 19 allows foreign invested enterprises to settle their foreign exchange capital on a discretionary basis according to the actual needs of their business operations and provides procedures by which a foreign-invested company may convert and use equity investments made in foreign currencies.  Circular 19 also reiterates, however, the principle that Renminbi converted from the foreign currency-denominated capital of a foreign-invested company may not be used, either directly or indirectly, for purposes beyond its business scope.  Thus, it is unclear whether SAFE will permit such capital to be used for equity investments in the PRC in practice.

 

Violations of Circular 19 may result in severe penalties, including substantial fines as set forth in the Foreign Exchange Administration Regulations. We cannot assure you that we will be able to complete the necessary government registrations or obtain the necessary government approvals on a timely basis, if at all, with respect to future loans by us to our PRC subsidiaries or with respect to future capital contributions by us to our PRC subsidiaries. If we fail to complete such registrations or obtain such approvals, our ability to contribute additional capital to fund our PRC operations may be negatively affected, which could materially adversely affect our liquidity and our ability to fund and expand our business.

 

The expiration or reduction of tax incentives by the PRC government may have a material adverse effect on our results of operations.

 

The EIT Law imposes a uniform tax rate of 25% on all PRC enterprises, including foreign-invested enterprises, and eliminates or modifies most of the tax exemptions, reductions and preferential treatments available under the previous tax laws and regulations. Under the EIT Law, certain enterprises may benefit from a preferential tax rate of 15% if they qualify as “high and new technology enterprises strongly supported by the State,” subject to certain general factors and conditions described therein. In September 2008, Trina China obtained the High and New Technology Enterprise Certificate with a valid term of three years starting from 2008. In 2011, Trina China renewed its High and New Technology Enterprise Certificate, effective from 2011 to 2013, entitling it to a preferential income tax rate of 15% from 2008 through 2013. Also, in 2011, TST obtained the High and New Technology Enterprise Certificate, effective from 2011 to 2013 and is entitled to a preferential income tax rate of 15%. In 2014, Trina China and TST renewed their High and New Technology Enterprise Certificates, effective from 2014 to 2016, which entitle both of them to a preferential income tax rate of 15% from 2014 through 2016. If either Trina China or TST fails to maintain the “high and new technology enterprise” qualification, their applicable rate of enterprise income tax, or EIT, may increase to up to 25%, which could have a material adverse effect on our results of operations. We cannot assure you that we will be able to maintain our current effective tax rate in the future. Any discontinuation of preferential tax treatment or any increase of the EIT rate applicable to Trina China could have a material adverse effect on our financial condition and results of operations.

 

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The dividends we receive from our PRC subsidiaries and our global income may be subject to PRC tax under the EIT Law, which would have a material adverse effect on our results of operations; our foreign ADS holders may be subject to a PRC withholding tax upon the dividends payable by us and upon gains realized on the sale of the ADSs, if we are classified as a PRC “resident enterprise.”

 

Under the EIT Law, dividends, interests, rents and royalties payable by a foreign-invested enterprise in the PRC to its foreign investor who is a non-resident enterprise, as well as gains on transfers of shares of a foreign-invested enterprise in the PRC by such a foreign investor, will be subject to a 10% withholding tax, unless such non-resident enterprise’s jurisdiction of incorporation has a tax treaty with the PRC that provides for a reduced rate of withholding tax. The Cayman Islands, where Trina is incorporated, does not have such a tax treaty with the PRC. Therefore, if Trina is considered a non-resident enterprise for purposes of the EIT Law, this 10% withholding tax imposed on dividends paid to Trina by its PRC subsidiaries would reduce Trina’s net income and have an adverse effect on Trina’s operating results.

 

Under the EIT Law, an enterprise established outside the PRC with its “de facto management body” within the PRC is considered a “resident enterprise” and will be subject to the enterprise income tax at the rate of 25% on its worldwide income. The “de facto management body” is defined as the organizational body that effectively exercises overall management and control over production and business operations, human resources, finance and accounting, and properties of the enterprise. The State Administration of Taxation, or SAT, issued the Notice Regarding the Determination of Chinese-Controlled Offshore Incorporated Enterprises as PRC Tax Resident Enterprises on the Basis of De Facto Management Bodies, or SAT Circular 82, on April 22, 2009. SAT Circular 82 provides certain criteria for determining whether the “de facto management body” of an offshore-incorporated enterprise controlled by PRC enterprises is located in China. On July 27, 2011, the SAT issued Administrative Measures of Enterprise Income Tax of Chinese-controlled Offshore Incorporated Resident Enterprises (Trial), or Bulletin 45, which became effective on September 1, 2011, to provide further guidance on the implementation of SAT Circular 82. Bulletin 45 further prescribes the rules concerning the recognition, administration and taxation of an enterprise incorporated offshore and “controlled by a PRC enterprise or PRC enterprise group.” Bulletin 45 provides two ways for determining whether a foreign enterprise “controlled by a PRC enterprise or a PRC enterprise group” should be treated as a resident enterprise. First, the offshore enterprise may decide on its own whether its de facto management body is located in China based on the criteria set forth in Circular 82, and, if it makes such determination, it must apply to the competent tax bureau to be treated as a resident enterprise. Second, the tax authority may, after investigating, determine that the offshore enterprise is a resident enterprise. Although SAT Circular 82 only applies to offshore enterprises controlled by PRC enterprises and not those controlled by PRC or foreign individuals or foreign enterprises, the criteria set forth therein may reflect the SAT’s general position on how the “de facto management body” test should be applied in determining the tax resident status of offshore enterprises, regardless of whether they are controlled by PRC or foreign enterprises or individuals. Considering that most of our management is currently located in the PRC, we may be considered a resident enterprise and may therefore be subject to the EIT at 25% on our global income other than dividends from our PRC subsidiaries, which could significantly increase our tax burden and materially adversely affect our cash flow and profitability. Notwithstanding the foregoing provision, the EIT Law also provides that, if a resident enterprise directly invests in another resident enterprise, the dividends received by the investing resident enterprise from the invested enterprise are exempted from income tax, subject to certain conditions. Therefore, if Trina is classified as a resident enterprise, the dividends received from its PRC subsidiary may be exempted from income tax. However, it remains unclear how the PRC tax authorities will interpret the PRC tax resident treatment of an offshore company, like Trina, having ownership interest in a PRC enterprise.

 

Moreover, under the EIT Law, a withholding tax at the rate of 10% is applicable to dividends payable to investors that are “non-resident enterprises,” which do not have an establishment or place of business in the PRC, or which have such establishment or place of business but the relevant income is not effectively connected with the establishment or place of business, to the extent such interest or dividends have their sources within the PRC unless such non-resident enterprises can claim treaty protection. As such, these non-resident enterprises would enjoy a reduced withholding tax from treaty. Similarly, any gain realized on the transfer of ADSs or shares by such investors is also subject to a 10% withholding tax if such gain is regarded as income derived from sources within the PRC. If Trina is considered a PRC resident enterprise, it is likely that the dividends Trina pays with respect to its ordinary shares or ADSs, or the gain you may realize from the transfer of Trina’s ordinary shares or ADSs, would be treated as income derived from sources within the PRC and be subject to PRC withholding tax.

 

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Under the PRC Individual Income Tax Law, or IITL, if we are treated as a PRC resident enterprise, it is possible that non-resident individual investors of our shares or ADSs would be subject to PRC individual income tax at a rate of 20% on dividends paid to such investors and any capital gains realized from the transfer of our ordinary shares, ADSs or both, if such dividends or capital gains are deemed income derived from sources within the PRC, except in the case of individuals that qualify for a lower rate under a tax treaty. Under the PRC-U.S. tax treaty, a 10% preferential rate of withholding tax will apply to dividends provided that the recipients are U.S. tax residents that are eligible for the benefits of the PRC-U.S. tax treaty. A non-resident individual is an individual who has no domicile in the PRC and does not stay within the PRC or has stayed within the PRC for less than one year. Pursuant to the IITL and its implementation rules, for purposes of the PRC capital gains tax, the taxable income will be based on the total income obtained from the transfer of our ordinary shares or ADSs minus all the costs and expenses that are permitted under PRC tax laws to be deducted from the income.

 

We face uncertainty with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC holding companies.

 

The State Administration of Taxation has promulgated several rules and notices to tighten the scrutiny over acquisition transactions in recent years, including the Notice on Strengthening Administration of Enterprise Income Tax for Share Transfers by Non-PRC Resident Enterprises in 2009 with retroactive effect from January 1, 2008, or SAT Circular 698, the Notice on Several Issues Regarding the Income Tax of Non-PRC Resident Enterprises in 2011, or SAT Circular 24, and the Notice on Certain Corporate Income Tax Matters on Indirect Transfer of Properties by Non-PRC Resident Enterprises in February 2015, or SAT Circular 7.  Pursuant to these rules and notices, if a non-PRC resident enterprise transfers its equity interests in a PRC tax resident enterprise, this non-PRC resident transferor must report to the tax authorities at the place where the PRC tax resident enterprise is located and will be subject to a PRC withholding tax of up to 10%. In addition, if a non-PRC resident enterprise indirectly transfers so-called PRC Taxable Properties, referring to properties of an establishment or a place of business in China, real estate properties in China and equity investments in a PRC tax resident enterprise, by disposition of the equity interests in an overseas non-public holding company without a reasonable commercial purpose and resulting in the avoidance of PRC EIT, the transfer will be re-characterized as a direct transfer of the PRC Taxable Properties and gains derived from the transfer may be subject to a PRC withholding tax of up to 10%. SAT Circular 7 has listed several factors to be taken into consideration by the tax authorities in determining if an indirect transfer has a reasonable commercial purpose. However, despite these factors, an indirect transfer satisfying all the following criteria will be deemed to lack reasonable commercial purpose and be taxable under the PRC laws: (i) 75% or more of the equity value of the intermediary enterprise being transferred is derived directly or indirectly from PRC Taxable Properties; (ii) at any time during the one year period before the indirect transfer, 90% or more of the asset value of the intermediary enterprise (excluding cash) is comprised directly or indirectly of investments in the PRC, or 90% or more of its income is derived directly or indirectly from the PRC; (iii) the functions performed and risks assumed by the intermediary enterprise and any of its subsidiaries that directly or indirectly hold the PRC Taxable Properties are limited and are insufficient to prove their economic substance; and (iv) the foreign tax payable on the gain derived from the indirect transfer of the PRC Taxable Properties is lower than the potential Chinese tax on the direct transfer of those assets. Nevertheless, the indirect transfers falling into the scope of the safe harbor under SAT Circular 7 may not be subject to PRC tax. The safe harbor includes qualified group restructurings, public market trades and exemptions under tax treaties.

 

Under SAT Circular 7 and other PRC tax regulations, in case of an indirect transfer, entities or individuals obligated to pay the transfer price to the transferor must act as withholding agents and are required to withhold the PRC tax from the transfer price.  If they fail to do so, the seller is required to report and pay the PRC tax to the PRC tax authorities. If neither party complies with the tax payment or withholding obligations under SAT Circular 7, the tax authority may impose penalties such as late payment interest on the seller. In addition, the tax authority may also hold the withholding agents liable and impose a penalty of 50% to 300% of the unpaid tax on them. The penalty imposed on the purchasers may be reduced or waived if the withholding agents have submitted the relevant materials in connection with the indirect transfer to the PRC tax authorities in accordance with SAT Circular 7.

 

However, as these rules and notices are relatively new, there is uncertainty as to their implementation and future development. As a result, we may become at risk of being taxed under these rules and notices and we may be required to expend valuable resources to comply with or to establish that we should not be taxed under these rules and notices, which may materially adversely affect our financial condition and results of operations or those non-PRC resident investors’ investments in us.

 

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The approval of the China Securities Regulatory Commission might have been required in connection with our initial public offering, and, if required, we could be subject to sanction, fines and other penalties.

 

On August 8, 2006, six PRC regulatory agencies, including the China Securities Regulatory Commission, or the CSRC, promulgated the Regulation on Mergers and Acquisitions of Domestic Companies by Foreign Investors, or the M&A Rules, which became effective on September 8, 2006 and was amended on June 22, 2009. The M&A Rules, among other things, require offshore special purpose vehicles, formed for overseas listing purposes through acquisitions of PRC domestic companies and controlled by PRC enterprises or individuals, to obtain the approval of the CSRC prior to publicly listing their securities on an overseas stock exchange. On September 21, 2006, the CSRC published a notice specifying the documents and materials that are required to be submitted for obtaining CSRC approval. Based on the advice we received from Fangda Partners, our PRC counsel, we did not seek the CSRC approval in connection with our initial public offering as we believed that this regulation did not apply to us and that CSRC approval was not required because (1) Trina was not a special purpose vehicle formed for the purpose of acquiring a PRC domestic company because Trina China was a foreign-invested enterprise before it was acquired by Trina, and, accordingly, Trina China did not fall within the definition of a PRC domestic company as set forth in the new regulation; and (2) such acquisition was completed before the new regulation became effective.

 

Uncertainty still exists as to how the M&A Rules will be interpreted and implemented, and the opinion of our PRC counsel is subject to any new laws, regulations, rules and their detailed implementations in the future in any form relating to the M&A Rules.  If the CSRC or other PRC regulatory body subsequently determines that the CSRC’s approval was required for our initial public offering, we may face sanctions by the CSRC or other PRC regulatory agencies. In that case, these regulatory agencies may impose fines and penalties on our operations in the PRC, limit our operating privileges in the PRC, restrict or prohibit payment or remittance of dividends by Trina China, or take other actions that could have a material adverse effect on our business, financial condition, results of operations, reputation and prospects, as well as the trading price of our ADSs.

 

The regulations also established additional procedures and requirements that could make merger and acquisition activities by foreign investors more time-consuming and complex, including requirements in some instances that the MOFCOM be notified in advance of any change-of-control transaction in which a foreign investor takes control of a PRC domestic enterprise. As we may grow our business in part by acquiring complementary businesses in the future, complying with the requirements of the new regulations to complete such transactions could be time-consuming, and any required approval processes, including obtaining approval from the MOFCOM, may delay or inhibit our ability to complete such transactions. Any such delay or inability to obtain applicable approvals to complete our potential future acquisitions could affect our ability to expand our business or maintain our market share.

 

We may be subject to Regulations on National Security Review of Merger and Acquisition by Foreign Investors, which could jeopardize future transactions.

 

On February 3, 2011, the State Council promulgated Circular No. 6, a notice on the establishment of the security review system for mergers and acquisitions of domestic enterprises by foreign investors, which became effective on March 3, 2011. To implement Circular No. 6, the MOFCOM promulgated the MOFCOM Security Review Rules on August 25, 2011 which became effective on September 1, 2011. According to Circular No. 6 and the MOFCOM Security Review Rules, a national security review is required for certain mergers and acquisitions by foreign investors of enterprises relating to national defense and certain mergers and acquisitions by which foreign investors may acquire de facto control of domestic enterprises raising national security concerns. When deciding whether a specific merger or acquisition of a domestic enterprise by foreign investors is subject to the national security review, the MOFCOM will review the substance and actual impact of the transaction and the foreign investors are prohibited from bypassing the national security review requirement by structuring transactions through proxies, trusts, indirect investments, leases, loans, control through contractual arrangements or offshore transactions. In addition, if a merger or acquisition by foreign investors which was not submitted for national security review, or was determined to have no impact on national security after such review, but thereafter, due to changed elements, including modification of the merger, change of business activities or acquisition transaction or amendment of the relevant agreements or documents and other changes, involves an enterprise relating to national defense or a change of de facto control of a domestic enterprise raising national security concerns such that it becomes subject to national security review, the foreign investor to such merger or acquisition will be required to file an application for national security review with the MOFCOM. Currently, there are no public provisions or official interpretations specifically providing that our current businesses fall within the scope of national security review and there is no requirement that foreign investors to those merger and acquisition transactions completed prior to the promulgation of the Circular No. 6 take initiatives to submit such transactions to MOFCOM for national security review. However, as the MOFCOM Security Review Rules and the Circular No. 6 are relatively new and there is no clear statutory interpretation on their implementation, there is no assurance that the relevant PRC regulatory authorities will have the same view as us when applying them.  Moreover, there exists the possibility that our future merger and acquisition transactions will be subject to the national security review under the MOFCOM Security Review Rules and the Circular No. 6.

 

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Regulations relating to offshore investment activities by PRC residents may limit our ability to acquire PRC companies and could adversely affect our business, financial condition and results of operations. The regulations also establish more complex procedures for acquisitions by foreign investors, which could make it more difficult to pursue growth through acquisitions.

 

In October 2005, SAFE promulgated a regulation known as SAFE Circular 75 that states that if PRC residents use assets or equity interests in their PRC entities as capital contributions to establish offshore companies or inject assets or equity interests of their PRC entities into offshore companies to raise capital overseas, they must register with local SAFE branches with respect to their overseas investments in offshore companies.

 

On July 4, 2014, SAFE promulgated the Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Residents’ Offshore Investment and Financing and Roundtrip Investment through Special Purpose Vehicles, or SAFE Circular 37, which replaced the SAFE Circular 75. SAFE Circular 37 requires PRC residents to register with local branches of SAFE in connection with their direct establishment or indirect control of an offshore entity, for the purpose of overseas investment and financing, with such PRC residents’ legally owned assets or equity interests in domestic enterprises or offshore assets or interests, referred to in SAFE Circular 37 as a “special purpose vehicle”. The term “control” under SAFE Circular 37 is broadly defined as the operation rights, beneficiary rights or decision-making rights acquired by the PRC residents in the offshore special purpose vehicles or PRC companies by such means as acquisition, trust, proxy, voting rights, repurchase, convertible bonds or other arrangements. SAFE Circular 37 further requires amendment to the registration in the event of any significant changes with respect to the special purpose vehicle, such as increase or decrease of capital contributed by PRC individuals, share transfer or exchange, merger, division or other material event. In the event that a PRC shareholder holding interests in a special purpose vehicle fails to fulfill the required SAFE registration, the PRC subsidiaries of that special purpose vehicle may be prohibited from distributing profits to the offshore parent and from carrying out subsequent cross-border foreign exchange activities, and the special purpose vehicle may be restricted in its ability to contribute additional capital into its PRC subsidiary. Moreover, failure to comply with the various SAFE registration requirements described above could result in liability under PRC law for evasion of foreign exchange controls.

 

While we believe our shareholders who have confirmed to us that they are PRC residents have taken actions available to them to comply with SAFE Circular 75 and they are still in the process of updating their SAFE registration to reflect the recent changes to our group structure, we have urged relevant shareholders and beneficial owners to make the necessary applications, filings and amendments as required under SAFE Circular 37 and other related rules. We cannot assure you that our current shareholders and/or beneficial owners or their shareholders or beneficial owners can successfully comply with registration requirements under SAFE Circular 37 and subsequent implementation rules in a timely fashion or at all. Any future failure by any of our shareholders who is a PRC resident, or controlled by a PRC resident, to comply with relevant requirements under these regulation could subject our company to fines or sanctions imposed by the PRC government, including restrictions on our PRC subsidiaries’ ability to pay dividends or make distributions to us and our ability to increase our investment in or to provide loans to such PRC subsidiaries.

 

Furthermore, it is unclear how these regulations, and any future regulation concerning offshore or cross-border transactions, will be interpreted, amended and implemented by the relevant government authorities. We cannot predict how these regulations will affect our business operations or future strategy. For example, we may be subject to a more stringent review and approval process with respect to our foreign exchange activities, such as remittance of dividends and foreign-currency-denominated borrowings, which may adversely affect our financial condition and results of operations.

 

On December 25, 2006, the People’s Bank of China promulgated the “Measures for Administration of Individual Foreign Exchange.” On January 5, 2007, the SAFE promulgated Implementation Rules for those measures and on February 15, 2012, the SAFE promulgated the notice on issuers concerning the Foreign Exchange Administration for Domestic Individuals Participating in Stock Incentive Plan of Overseas Listed Company which terminated the Operating Procedures on Administration of Foreign Exchange regarding PRC individuals’ Participation in Employee Share Ownership Plans and Employee Stock Option Plans of Overseas Listed Company issued by SAFE on March 28, 2007 (collectively, referred to as the “Individual Foreign Exchange Rules”). According to the Individual Foreign Exchange Rules, PRC citizens who are granted shares or share options by a company listed on an overseas stock market according to its employee share option or share incentive plan are required to register with the SAFE or its local counterparts by following certain procedures. We and our employees who are PRC citizens and individual beneficiary owners, or have been granted restricted shares or share options, are subject to the Individual Foreign Exchange Rules and its relevant implementation regulations. The failure of our PRC individual beneficiary owners and the restricted holders to complete their SAFE registrations pursuant to the SAFE Jiangsu Branch’s requirement or the Individual Foreign Exchange Rules may subject these PRC citizens to fines and legal sanctions and may also limit our ability to contribute additional capital into our PRC subsidiaries, limit our PRC subsidiaries’ ability to distribute dividends to us or otherwise materially adversely affect our business.

 

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In addition, the Ministry of Finance and the SAT have issued circulars concerning individual income taxes relating to employee share options. Under these circulars, our employees working in the PRC who exercise share options will be subject to PRC individual income tax. The tax base for the employment income would be the fair market value of the received shares at the time of vesting minus the corresponding consideration paid by the employees for the shares. Our PRC subsidiaries have obligations to file documents related to employee share options with relevant tax authorities and to withhold individual income taxes of those employees who exercise their share options. If our employees fail to pay or we fail to withhold their income taxes according to applicable PRC laws and regulations, we may face fines ranging from 50% to 300% of the overdue taxes.

 

Labor laws in the PRC may adversely affect our results of operations.

 

On June 29, 2007, the PRC government promulgated the Labor Contract Law of the PRC, or the PRC Labor Contract Law, which became effective on January 1, 2008. On September 3, 2008, the PRC government promulgated the Implementing Rules on PRC Labor Contract Law, or the Implementing Rules. The PRC Labor Contract Law and the Implementing Rules impose requirements concerning contracts entered into between an employer and its employees and establish time limits for probationary periods and for how long an employee can be placed in fixed-term labor contracts. According to the PRC Labor Contract Law and the Implementing Rules, employers must pay their employees’ wages equal to or above the local minimum wage standards, establish labor safety and workplace sanitation systems, comply with national labor rules and standards and provide employees with appropriate training regarding workplace safety. Furthermore, if we enforce the non-compete provision in a labor contract, we have to compensate the employee on a monthly basis during the term of the non-compete period after the termination or expiration of the labor contract, which may cause additional expenses to us.

 

In addition, the PRC regulatory authorities have enacted a variety of laws and regulations regarding social insurance and housing funds. Pursuant to these laws and regulations, PRC companies have to make contributions to the relevant local social insurance and housing funds regulatory authorities for their employees. Due to the limited period of effectiveness of the PRC Labor Contract Law and the Implementing Rules and the lack of clarity with respect to their implementation and potential penalties and fines, it is uncertain how they will impact our current employment policies and practices. Therefore, we cannot assure you that our employment policies and practices do not, or will not, violate these laws and regulations and that we will not be subject to related penalties, fines or legal fees. If we are subject to large penalties or fees related to these laws and regulations, our business, financial condition and results of operations may be materially and adversely affected.

 

We face risks related to health epidemics and other outbreaks.

 

Our business could be adversely affected by the effects of swine flu, avian flu, SARS or other epidemics or outbreaks.  There have been reports on the occurrences of avian flu in various parts of China, including a few confirmed human cases and deaths. In 2009, an outbreak of swine flu occurred in Mexico and the United States and the World Health Organization declared a level 6 flu pandemic, its highest pandemic alert phase, indicating a global pandemic underway. Any prolonged occurrence or recurrence of swine flu, avian flu, SARS or other adverse public health developments in China or any of the major markets in which we do business may have a material adverse effect on our business and operations. These could include our ability to travel or ship our products outside of China and to designated markets, as well as temporary closure of our manufacturing facilities, logistic facilities and/or our customers’ facilities, leading to delayed or cancelled orders. Any severe travel or shipment restrictions and closures would severely disrupt our operations and adversely affect our business and results of operations. We have not adopted any written preventive measures or contingency plans to combat any future outbreak of swine flu, avian flu, SARS or any other epidemic.

 

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Risks Related to Our Ordinary Shares and ADSs

 

Uncertainty concerning the proposed going private transaction may adversely affect our business and the market price of our ADSs.

 

Our board of directors received a preliminary non-binding proposal letter dated December 12, 2015 from the Buyer Group, to acquire all of our outstanding ordinary shares not owned by them in a going private transaction for $0.232 in cash per ordinary share, or $11.6 in cash per ADS. Our board of directors formed a special committee consisting of two independent directors, Messrs. Sean Shao and Qian Zhao, on December 13, 2015 to consider the proposal.

 

In order for the proposed going private transaction to be consummated, we must first enter into a merger agreement with the Buyer Group that is approved by our board of directors and later by our shareholders. If the going private transaction is consummated, it would cause us to be delisted from the New York Stock Exchange and become a private company, in which event our shareholders, other than those in the Buyer Group, would not be able to participate in our future growth. If the proposed going private transaction is not approved by either our directors or our shareholders or is for any other reason not consummated, it could adversely affect the market price of our ADSs. Whether consummated or not, the proposed going private transaction risks diverting management focus, employee attention and other resources from strategic opportunities and from operational matters. Also, as the going private transaction develops, certain events such as the execution of any merger agreement, completion of the merger or an amendment to or termination of any merger agreement, may increase the volatility of the trading price of our ADSs. Furthermore, we could be subject to potential lawsuits in connection with the proposed going-private transaction.

 

The market price of our ADSs has been and is likely to continue to be highly volatile.

 

The market price of our ADSs has been and is likely to continue to be highly volatile and subject to wide fluctuations in response to factors including the following:

 

·                                          announcements of technological or competitive developments;

 

·                                          regulatory developments in our target markets affecting us, our customers or our competitors;

 

·                                          announcements of studies and reports relating to the conversion efficiencies of our products or those of our competitors;

 

·                                          actual or anticipated fluctuations in our quarterly operating results;

 

·                                          changes in financial estimates by securities research analysts;

 

·                                          changes in the economic performance or market valuations of other solar power companies;

 

·                                          addition or departure of our executive officers and key research personnel;

 

·                                          financial blogs, Internet chat room or other media forms which publish unsubstantiated opinions or claims in support of undisclosed trades, including short selling, of our ADSs;

 

·                                          announcements regarding patent litigation or the issuance of patents to us or our competitors;

 

·                                          conditions affecting general economic performance in the United States;

 

·                                          fluctuations in the exchange rates between the U.S. dollar, the Euro and Renminbi;

 

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·                                          release or expiry of lock-up or other transfer restrictions on our outstanding ordinary shares;

 

·                                          patent litigation and other intellectual property disputes;

 

·                                          litigation and other disputes with our long-term suppliers;

 

·                                          SEC investigation or private securities litigation;

 

·                                          the release or expiration of lock-up or other transfer restrictions on our outstanding ADSs;

 

·                                          sales or anticipated sales of additional ADSs; and

 

·                                          the proposed acquisition of all of our outstanding shares not currently owned by the Buyer Group in a going private transaction.

 

In addition, the securities market has from time to time experienced significant price and volume fluctuations that are not related to the operating performance of particular companies. These market fluctuations may also have a material and adverse effect on the market price of our ADSs.

 

Changes in the accounting guidelines relating to the borrowed ADS could decrease our earnings per share and potentially the ADS price.

 

We have entered into ADS lending agreements with the underwriters of our ADS offering registered on prospectus supplement dated September 30, 2014 and the accompanying prospectus dated June 4, 2014.  We entered into these ADS lending agreements to facilitate transactions by which investors in our convertible senior notes may hedge their investment.  Subject to certain terms of the ADS lending agreements, these borrowed ADSs must be returned to us by October 15, 2019 or earlier in certain circumstances. The borrowed ADSs will be legally issued, but will not be considered outstanding for accounting purposes under U.S. GAAP.  If these guidelines were to change in the future, we may be required to treat the borrowed ADSs as outstanding for purpose of computing earnings per share, our earnings per share would be reduced and the ADS price could decrease, possibly significantly.

 

Holders of our ADSs do not have the same voting rights as the holders of our ordinary shares and may not receive voting materials in time to be able to exercise their right to vote.

 

Holders of our ADSs are not treated as shareholders. Instead, the depositary will be treated as the holder of the shares underlying the ADSs. Holders of our ADSs, however, may exercise some of the shareholders’ rights through the depositary and have the right to withdraw the shares underlying their ADSs from the deposit facility.

 

Except as described in this annual report and provided in the deposit agreement, holders of our ADSs will not be able to exercise voting rights attaching to the shares evidenced by our ADSs directly. Holders of our ADSs may instruct the depositary to exercise the voting rights attaching to the shares represented by the ADSs. If no instructions are received by the depositary on or before a date established by the depositary, the depositary may deem the holders to have instructed it to give a discretionary proxy to a person designated by us to exercise their voting rights. Holders of our ADSs may not receive voting materials in time to instruct the depositary to vote, and holders of our ADSs, or persons who hold their ADSs through brokers, dealers or other third parties, might not have the opportunity to exercise a right to vote.

 

We have adopted a shareholders rights plan, which, together with the other anti-takeover provisions of our articles of association, could discourage a third party from acquiring us, which could limit our shareholders’ opportunity to sell their shares, including ordinary shares represented by our ADSs, at a premium.

 

In November 2006, we adopted our amended and restated articles of association, which became effective immediately upon completion of our initial public offering in December 2006. Our current articles of association contain provisions that have the potential to limit the ability of others to acquire control of our company or cause us to engage in change-of-control transactions. In November 2008, our board of directors adopted a shareholders rights plan. Under this rights plan, one right was distributed with respect to each of our ordinary shares outstanding at the closing of business on December 1, 2008. These rights entitle the holders to purchase ordinary shares from us at half of the market price at the time of purchase in the event that a person or group obtains ownership of 15% or more of our ordinary shares (including by acquisition of the ADSs representing an ownership interest in the ordinary shares) or enters into an acquisition transaction without the approval of our board of directors.

 

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This rights plan and the other anti-takeover provisions of our articles of association 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. Our existing authorized ordinary shares confer on the holders of our ordinary shares equal rights, privileges and restrictions. Our board of directors may, without further action by our shareholders, issue additional ordinary shares, or issue shares of a preferred class and attach to such shares special rights, privileges or restrictions, which may be different from those associated with our ordinary shares, up to the amount of the authorized capital and the number of authorized shares of our company. Preferred shares could also be issued 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 ordinary shares or preferred shares, the price of our ADSs and the notes may fall and the voting and other rights of the holders of our ordinary shares and ADSs may be materially and adversely affected.

 

Holders of our ADSs may not be able to participate in rights offerings that are made available to our shareholders, and may not receive cash dividends if it is impractical to make them available to them.

 

We may from time to time distribute rights to our shareholders, including rights to acquire our securities. Under the deposit agreement, the depositary bank will not make rights available to holders of our ADSs unless the distribution to ADS holders of both the rights and any related securities are either registered under the Securities Act of 1933, as amended, or the Securities Act, or exempted from registration under the Securities Act with respect to all holders of ADSs. 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, holders of our ADSs 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 holders of our ADSs 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. Holders of our ADSs 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. For example, the depositary may determine that it is not practicable to distribute certain property through the mail, or that the value of certain distributions may be less than the cost of mailing them. In these cases, the depositary may decide not to distribute such property and holders of our ADSs will not receive such distribution.

 

Holders of our ADSs may be subject to limitations on transfer of their ADSs.

 

Our 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.

 

You may face difficulties in protecting your interests because we are incorporated under Cayman Islands law.

 

Our corporate affairs are governed by our memorandum and articles of association, the Companies Law, Cap. 22 (Law 3 of 1961, as consolidated and revised) of the Cayman Islands 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. As a result of all of the above, shareholders of a Cayman Islands company 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 company incorporated in a jurisdiction in the United States. The limitations described above will also apply to the depositary, which is treated as the holder of the shares underlying our ADSs.

 

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You may have difficulty enforcing judgments obtained against us.

 

We are a Cayman Islands company and the large majority of our assets are located outside of the United States. A significant portion of our current operations are conducted in the PRC. 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 of 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.

 

Item 4.                                                         INFORMATION ON THE COMPANY

 

A.                                    History and Development of the Company

 

Our legal and commercial name is Trina Solar Limited. Our predecessor company, Trina China, was incorporated in December 1997. In anticipation of our initial public offering, we incorporated Trina, a listing vehicle, as an exempted company limited by shares under the laws of the Cayman Islands on March 14, 2006. Trina acquired all of the equity interests in Trina China through a series of transactions that have been accounted for as a recapitalization and Trina China became our wholly-owned subsidiary. We conduct most of our operations through Trina China and other subsidiaries in the PRC. In December 2006, we completed our initial public offering of our ADSs and listed our ADSs on the New York Stock Exchange. In June 2007, we completed a follow-on public offering of 5,406,280 ADSs sold by us and certain selling shareholders. In July 2008, we completed public offerings of $138 million aggregate principal amount of convertible senior notes due 2013, all of which we redeemed, together with all accrued but unpaid interest, as of the maturity date on July 15, 2013, and 8,146,388 ADSs for a related ADS borrowing facility. In August 2009, we completed a follow-on public offering of 5,175,000 ADSs. In March 2010, we completed another follow-on public offering of 9,085,000 ADSs. In June 2014, we completed a private placement of $172.5 million aggregate principal amount of 3.5% convertible senior notes due 2019, and a concurrent follow-on public offering of 10,120,000 ADSs. In October 2014, we completed a private placement of $115 million aggregate principal amount of 4.0% convertible senior notes due 2019, and a concurrent follow-on public offering of 10,333,785 ADSs, 2,504,000 ADSs of which were sold by us and 7,829,785 ADSs of which were loaned pursuant to an ADS borrowing facility related to the concurrent private placement of senior notes.

 

Our board of directors received a preliminary non-binding proposal letter dated December 12, 2015 from the Buyer Group to acquire all of our outstanding ordinary shares not owned by them in a going private transaction for $0.232 in cash per ordinary share, or $11.6 in cash per ADS. Our board of directors formed a special committee consisting of two independent directors, Messrs. Sean Shao and Qian Zhao, on December 13, 2015 to consider the proposal. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Ordinary Shares and ADSs—Uncertainty concerning the proposed going private transaction may adversely affect our business and the market price of our ADSs.”

 

Our principal executive offices are located at No. 2 Tian He Road, Electronics Park, New District, Changzhou, Jiangsu 213031, People’s Republic of China. Our telephone number at this address is (+86) 519 8548-2008 and our fax number is (+86) 519 8517-6025. Our registered office in the Cayman Islands is located at the offices of Codan Trust Company (Cayman) Limited, Cricket Square, Hutchins Drive, P.O. Box 2681, Grand Cayman, KY1-1111, Cayman Islands.

 

For information regarding our principal capital expenditures, see “—D. Property, Plants and Equipment.”

 

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Investor inquiries should be directed to us at the address and telephone number of our principal executive offices set forth above. Our website is http://www.trinasolar.com. The information contained on our website does not form part of this annual report. Our agent for service of process in the United States is CT Corporation System located at 111 Eighth Avenue, New York, New York 10011.

 

B.                                    Business Overview

 

Overview

 

We are a large-scale integrated solar power products manufacturer and solar system developer based in China with a global distribution network covering Europe, Asia, North America, Australia and Africa. Since we began our solar power products business in 2004, we have integrated the manufacturing of ingots, wafers and solar cells for use in our PV module production. Our PV modules provide reliable and environmentally-friendly electric power for residential, commercial, industrial and other applications worldwide. We also develop, design, construct, operate and sell solar power projects that primarily use the solar modules we manufacture. Beginning in 2014, we have two reportable operating segments consisting of the manufacturing segment and the solar power projects segment.

 

We produce standard monocrystalline PV modules ranging from between 215 watts, or W, and 230 W to between 275 W and 295 W in power output for 60 cell and between 325 W and 350 W for 72 cell and multicrystalline PV modules ranging from between 260 W and 270 W to between 305 W to 320 W in power output. We build our PV modules to general specifications, as well as to our customers’ and end-users’ specifications. We sell and market our products worldwide, including China and the United States, where government incentives have accelerated the adoption of solar power. In recent years, we have also increased our sales in newer and emerging solar power markets, which include the United Kingdom and India, as well as other markets in Asia, Africa, the Middle East, Latin America, and the Caribbean Islands. We have established regional headquarters and offices located in Europe, North America and Asia to target sales and distribution in those markets. We primarily sell our products to wholesalers, power plant developers and operators and PV system integrators, including NVT, LLC dba SunEdison, Sanshin Electronics Co., Ltd., Solar City, SunEnergy1, FLS Energy, Welspun Energy Private Limited, Vivint Sloar Developer, LLC, Bluefield SIF Investments Limited, Consolidated Edison Development, TBEA Xinjiang Sunoasis Co., Ltd.

 

We have expanded into the downstream solar power projects market. In 2015, we completed and connected 425.0 MW of build-to-own projects in China, completed and connected 210.9 MW of build-to-sell projects in China, and completed and sold 50.0 MW of build-to-sell projects in Europe. We anticipate completing between 750 MW and 850 MW of projects during 2016, including significant projects in China and globally. Our integrated manufacturing model and experience as a provider of high quality solar solutions have allowed us to successfully grow our solar power project business and develop a strong solar project pipeline to support future expansion.

 

As of December 31, 2015, we had an annualized in-house manufacturing capacity of ingots of approximately 2,300 MW, wafers of approximately 1,800 MW, cells of approximately 3,500 MW and modules of approximately 5,000 MW. In order to fill the gap between our needs for PV cells and our ingots and wafer manufacturing capacities that was created by strong market demand, and to achieve export cost advantages to certain markets, we contract toll services from third party manufacturers to process ingots and wafers and source wafers from our suppliers and strategic partners. Subsequently, we have developed relationships with various domestic and international suppliers of ingots and wafers.

 

We purchase polysilicon from our network of over ten suppliers, including several leading global producers of polysilicon, and have developed strong relationships with our suppliers. To reduce raw material costs, we continue to focus our research and development on improving solar cell conversion efficiency and enhancing manufacturing yields.  Our research and development platform has been further enhanced by our research and development laboratory that we were commissioned by the PRC Ministry of Science and Technology to establish in the Changzhou PV Park, or the PV Park, located adjacent to our headquarters. We began using the research and development laboratory in PV Park, or the PV Park Lab, in March 2012 and in November 2013, it was accredited by China’s Ministry of Science and Technology.

 

We began our research and development efforts in solar power products in 1999. We began our system integration business in 2002, our PV module business in late 2004, and our production of solar cells in April 2007. We began to develop solar power projects in 2009, and strategically entered the solar power project market in 2013. In 2013, 2014 and 2015, we generated net sales of $1,775.0 million, $2,286.1 million and $3,035.5 million, respectively. We recorded a net loss of $72.2 million, a net income of $61.3 million, and a net income of $86.3 million in 2013, 2014 and 2015, respectively.

 

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Products and Projects

 

Beginning in 2014, we have two reportable operating segments:

 

·                                          Manufacturing segment. We design, develop, manufacture and sell high efficiency PV modules world-wide, and integrate the manufacturing of ingots, wafers and solar cells for use in our PV module production.

 

·                                          Solar power projects segment. We design, construct, sell and/or operate solar power projects in China and overseas.

 

Our manufacturing segment designs, develops, manufactures and sells high efficiency PV modules world-wide. The manufacturing segment is comprised of the production of mono- and multi-crystalline silicon ingots, wafers, cells and related products and the subsequent assembly and marketing of PV modules. PV modules are arrays of interconnected solar cells encased in a weatherproof frame. We produce standard monocrystalline PV modules ranging from between 215 W and 230 W to between 275 W and 295 W in power output for 60 cell and between 325 W and 350 W for 72 cell and multicrystalline PV modules ranging from between 260 W and 270 W to between 305 W to 320 W in power output, built to general specifications for use in a wide range of residential, commercial, industrial and other solar power generation systems. The variation in power output is based on the conversion efficiency of the cells used in our PV modules, as well as the types of cells. We assemble PV modules either from monocrystalline or multicrystalline cells. We also design and produce PV modules based on our customers’ and end-users’ specifications. Our PV modules are sealed, weatherproof and able to withstand high levels of ultraviolet radiation and moisture. We sell our module products under our own brand.

 

Our solar power projects segment designs, constructs, operates and sells solar power projects in China, the United Kingdom, the U.S. and other European and Asian countries. We engage in the full life-cycle of solar projects development including project selection, design, financing, permitting, engineering, procurement, construction, installation, monitoring, operation and maintenance. We either sell completed solar projects to third party buyers, or operate them under the PPAs, or other contractual arrangements with utility or grid operators. In December 2015, we split our solar power project business unit, or SBU, into two separate units: a China SBU and an international SBU, which are still under the same management. The China SBU focuses on PV power plants in China, including the development and sales, engineering, procurement and construction, or EPC, and operation & maintenance, and the international SBU focuses on developing PV power plants in key international markets.

 

Manufacturing Segment

 

We manufacture ingots, wafers, cells and modules. We plan to build or acquire new facilities to increase our annualized in-house manufacturing capacity of cells and modules from 3,500 MW and 5,000 MW, respectively, as of December 31, 2015 to 5,000 MW and 6,000 MW, respectively, as of December 31, 2016.  This increase will take place as we improve the efficiency of our current facilities and build new greenfield facilities. We also seek for opportunities to access new production capacity that will strategically complement our current capacity through acquisitions or partnerships.  We plan to incur capital expenditures of up to $250.0 million to accomplish our 2016 expansion plans in our manufacturing segment. The following table sets forth our manufacturing capacity and production output in MW equivalent of module production as a result of our expansion for each of our facilities.

 

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Manufacturing Facility

 

Manufacturing
Commencement
Date

 

Annualized In-House
Manufacturing
Capacity as of
December 31, 2015

 

Production Output
for the Year Ended
December 31, 2015

 

Estimated
Maximum
Annualized In-
House
Manufacturing
Capacity as of
December 31, 2016

 

Silicon ingots

 

August 2005

 

2,300 MW

(1)

2,501 MW

(2)

2,300 MW

 

Silicon wafers

 

February 2006

 

1,800 MW

(1)

2,492 MW

(2)

1,800 MW

 

Solar cells

 

April 2007

 

3,500 MW

(1)

3,884 MW

(2)

5,000 MW

 

PV modules

 

November 2004

 

5,000 MW

(1)

5,873 MW

(2)(3)

6,000 MW

 

 


(1)              Approximate figures.

 

(2)              The amount by which production output exceeds manufacturing capacity is largely attributable to our arrangements with original equipment manufacturers.

 

(3)              Includes modules produced but not shipped as of December 31, 2015.

 

The key components of our manufacturing process are as follows:

 

·                                          Silicon feedstock. We purchase polysilicon from various suppliers, including silicon distributors, silicon manufacturers, semiconductor manufacturers and silicon processing companies. Our ability to mix the materials in the right proportion is critical to the production of high-quality silicon ingots. In the fourth quarter of 2015, we had an average silicon usage of approximately 5.1 grams per watt, compared to approximately 5.3 grams per watt in the fourth quarters of both 2014 and 2013.

 

·                                          Ingots. We began commercial production of multicrystalline ingots in November 2007. As of December 31, 2015, we had 184 directional solidification system, or DSS, furnaces for the manufacturing of multicrystalline ingots, which can yield 2,300 MW of modules annually based on current manufacturing processes. To produce multicrystalline ingots, molten silicon is changed into a block through a casting process in a DSS furnace. Crystallization starts by gradually cooling the crucibles in order to create multicrystalline ingot blocks. The resulting ingot blocks consist of multiple smaller crystals as opposed to the single crystal of a monocrystalline ingot.

 

·                                          Wafers. We began manufacturing wafers in February 2006. Currently, we slice monocrystalline and multicrystalline wafers to a thickness of approximately 185 microns, while maintaining a low breakage rate. After the ingots are inspected, monocrystalline ingots are squared by squaring machines. Through high-precision cutting techniques, the squared ingots are then sliced into wafers by wire saws using steel wires and silicon carbon powder. To produce multicrystalline wafers, multicrystalline ingots are first cut into pre-determined sizes. After a testing process, the multicrystalline ingots are cropped and the usable parts of the ingots are sliced into wafers by wire saws by the same high-precision cutting techniques used for slicing monocrystalline wafers, while the unusable parts are melted down for reuse. After being inserted into frames, the wafers go through a cleansing process to remove debris from the previous processes, and are then dried. Wafers are inspected for contaminants then packed and transferred to our solar cell production facilities. Our annual wafer manufacturing capacity as of December 31, 2015 was approximately 1,800 MW based on current manufacturing processes.

 

We fulfill some of our wafer requirements by sourcing from strategic partners. We will continue to source wafers through long-term supply agreements in order to fill the gap between our PV cell and module manufacturing capacity and our wafer manufacturing capacity and to achieve import cost advantages to certain markets. As a result, we have developed relationships with various domestic and international suppliers of wafers.  From time to time, we also fulfilled some of our ingot and wafer requirements through toll services from our strategic partners.  We will continue to contract toll services from third party manufacturers to process ingots and wafers in the future.

 

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·                                          Solar cells. We currently produce our own solar cells for use in our PV modules. To reduce our dependence on third-party solar cell manufacturers and to increase our efficiencies both in solar cell and PV module manufacturing, we began the production of monocrystalline cells in April 2007 and achieved a conversion efficiency of up to 20% as of December 31, 2015 on a test production line basis. In November 2007, we began producing multicrystalline cells and achieved a conversion efficiency of up to 18.3% as of December 31, 2015 on a mass production basis. As of December 31, 2015, we had 79 production lines with a total annualized in-house manufacturing capacity of approximately 3,500 MW.

 

To manufacture solar cells, the crystalline silicon wafer is used as the base substrate. After cleaning and texturing the surface, an emitter is formed through a diffusion process. The front and back sides of the wafer are then isolated using the plasma etching technique, the oxide formed during the diffusion process is removed and thus an electrical field is formed. We then apply an anti-reflective coating to the surface of the cell using plasma enhanced chemical vapors to enhance the absorption of sunlight. The front and back sides of the cell are screen printed with metallic inks and the cell then undergoes a fire treatment in order to preserve its mechanical and electrical properties. The cell is tested and classified according to its parameters.

 

We have also selectively entered into short-term agreements to both purchase and sell solar cells with commercially favorable terms to meet the fluctuations in PV module demand, or to achieve import cost advantages to certain markets.

 

·                                          PV modules. We began module manufacturing in November 2004. We increased our annualized in-house manufacturing capacity of modules from approximately 6 MW per year as of November 2004 to approximately 5,000 MW per year as of December 31, 2015.

 

To assemble PV modules, we interconnect multiple solar cells by taping and stringing the cells into a desired electrical configuration. The interconnected cells are laid out, laminated in a vacuum, cured by heating and then packaged in a protective light-weight aluminum frame. Through this labor-intensive process, our PV modules are sealed and become weatherproof and are able to withstand high levels of ultraviolet radiation and moisture.

 

We are in close proximity to Chinese solar equipment manufacturers that offer much of the solar manufacturing equipment we require at competitive prices compared to similar machinery offered by international solar equipment manufacturers.

 

Solar Power Projects Segment

 

We design and construct solar power projects in China, the United Kingdom, Japan, the Middle East and India.  Once construction is complete we either hold and operate the project or sell it to a third party. This segment enables us to capture additional portions of the value chain in the solar industry. We engage in the full life-cycle of developing and operating solar power projects, including project selection, design, permitting, engineering, procurement, construction, installation, monitoring, operation and maintenance. We began to develop solar power projects in 2009, and strategically entered the solar power project market in 2013. Our solar power projects segment has grown significantly in the past three years.  The solar power projects business is growing quickly in China, supported by favorable government policies, and we expect this segment to be strategically important to us and continue to grow.

 

Solar Power Projects Development Process

 

Our solar power projects development process primarily consists of the following stages:

 

·                                          Project selection.  We search for project opportunities inside and outside of China. Our business team closely monitors the solar power projects market and gathers market intelligence to identify project development opportunities. We engage reputable law firms and consulting firms led by our internal due diligence team to conduct feasibility studies of the potential projects and select projects based on such studies. As we consider undertaking new solar power projects, we weigh a number of factors including location, local policies and regulatory environment, the availability of funding for both us and prospective purchasers and potential internal rate of returns.

 

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·                                          Project financing. We typically include project financing plans in our feasibility studies and implement those plans after obtaining internal approval for the projects. Usually we finance 25% to 30% of our projects using our own funds and 70% to 75% through external financing, such as short-term bridge debt financing or long-term project loans collateralized by project assets.

 

·                                          Permitting and approval. We generally obtain permits and approvals for solar projects using our internal team and collaborating with other developers. We may also acquire projects that are in various stages of the permitting and approval process. The permits and approvals required for solar power projects vary depending on project location. In certain instances, in order to avoid some of uncertainties surrounding the regulations governing the permitting and approval process, we have entered into power plant agreements with unrelated project entities that have already obtained the required permits and approvals. These power plant agreements enable us to provide financing to the solar projects and then acquire the equity interests in the project entities after the project has completed construction and is connected to the State Grid. For a discussion of the risks associated with power plant agreements, see “Item 3. Key Information—D. Risk Factors—Risks Related to Doing Business in China—The PRC government may determine that the power plant agreements that establish the structure for the acquisition and operation of certain solar power plants before gird connection in China do not comply with PRC regulations.”

 

·                                          Project design, engineering, procurement and construction. Our engineering team generally designs solar power projects with the goal of optimizing the performance of our projects while minimizing construction and operational costs and risks.  We hire independent third-party contractors to construct our solar projects and we screen them based on their experience, reputation, credibility, safety and compliance record and other criteria. We use solar modules that we produce and procure inverters and other equipment from third party suppliers.

 

·                                          Build-to-sell projects. We usually determine whether a project is a build-to-sell project before commencing construction.  Most of our overseas projects and some of our projects in China are build-to-sell projects. We actively market our build-to-sell projects throughout the development process, and usually are able to identify and engage purchasers before the completion of construction.

 

·                                          Operation and Maintenance for build-to-own projects. Most of our build-to-own projects are located in China. We operate and maintain our build-to-own projects after they start operating, which requires signing grid-connection agreements and/or PPAs with the local grid companies. After the project is connected to the grid, we are responsible for operation and maintenance of the project, which we supply internally or sub-contract to external service providers.

 

Our Project Portfolio

 

In 2015, we completed and connected 425.0 MW of build-to-own projects in China, completed and connected 210.9 MW of build-to-sell projects in China, and completed and sold 50.0 MW of build-to-sell projects in Europe.

 

As of December 31, 2015, our completed and connected projects consisted of 26 build-to-own projects with a total designed capacity of 658.3 MW located in China, Greece, Italy and the United Sates and 21 build-to-sell projects with a total designed capacity of 210.9 MW in China. Our completed but not yet connected projects consisted of a 40.0 MW project located in China. Our projects under construction included 27 projects with a total designed capacity of 537.9 MW, including 25 build-to-sell projects with a total designed capacity of 423.4 MW located in China, the United Kingdom and Japan and two build-to-own projects with a total designed capacity of 114.5 MW located in China, all of which are expected to be completed and connected to the grid in 2016. Our projects in pipeline as of December 31, 2015 included 46 projects with a total designed capacity of 1,036.9 MW, including 774.4 MW build-to-sell projects and 262.5 MW build-to-own projects. “Projects in pipeline” are those projects that have been internally approved to start the permitting process but have not started construction.

 

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As of December 31, 2015, our build-to-sell project portfolio mainly consisted of:

 

·                                          21 completed and connected projects with a total designed capacity of 210.9 MW, which included six ground-mounted solar power projects with a total capacity of 90.0 MW and 15 industrial rooftop solar power projects with a total capacity of 120.9 MW in China;

 

·                                          25 projects under construction with a total designed capacity of 423.4 MW located in China, the United Kingdom, and Japan; and

 

·                                          42 projects in pipeline with a total designed capacity of 774.4 MW, including 547.9 MW of projects located in China, 218.1 MW of projects located in Japan and 8.4 MW of projects located in Chile.

 

As of December 31, 2015, our build-to-own project portfolio mainly consisted of:

 

·                                          26 completed and connected projects with a total designed capacity of 658.3 MW, including seven ground-mounted solar power projects with a total capacity of 555.5 MW and 14 industrial rooftop solar power projects with a total capacity of 80.6 MW in China, two solar power projects in Greece with a total designed capacity of 16.0 MW, a 2.0 MW solar power project in Italy, and two solar power projects in the United States with a total designed capacity of 4.2 MW.  The 22.2 MW of overseas projects were completed and connected to the grid in 2013. 555.5 MW of ground-mounted solar power projects and 80.6 MW of industrial rooftop solar power projects located in China were connected to the grid in 2014 and 2015;

 

·                                          one 40.0 MW completed but not yet connected project located in China;

 

·                                          two projects under construction with a total designed capacity of  114.5 MW, which are located in China and are expected to be completed in 2016. In August 2014, we entered into a share purchase agreement to acquire 90% of the equity interest in Yunnan Metallurgical New Energy, which held a 300.0 MW project in southern Yunnan Province, or the Yunnan Project. We completed the share transfer registration with the Yunnan Administration for Industry and Commerce in September 2014. The Yunnan Project has connected 245.5 MW as of December 31, 2015, and plans to complete grid connection with full capacity before June 2016; and

 

·                                          four projects in pipeline with a total designed capacity of 262.5 MW, including three solar power projects with a total designed capacity of 250.0 MW located in China and one 12.5 MW solar power project located in India.

 

The following table sets forth our project portfolio in our strategic markets as of December 31, 2015:

 

 

 

Completed Projects

 

Projects Under
Construction

 

Projects in Pipeline

 

 

 

Build-
to-sell

 

Build-
to-own

 

Sub-
total

 

Build-
to-sell

 

Build-
to-own

 

Sub-
total

 

Build-
to-sell

 

Build-
to-own

 

Sub-
total

 

 

 

(in MW)

 

China

 

210.9

 

676.1

(1)

887

(2)

394.7

 

114.5

 

509.2

 

547.9

 

250

 

797.9

 

Europe

 

 

18

 

18

 

24.3

 

 

24.3

 

 

 

 

Japan

 

 

 

 

4.4

 

 

4.4

 

218.1

 

 

218.1

 

Others

 

 

4.2

 

4.2

 

 

 

 

8.4

 

12.5

 

20.9

 

Total

 

210.9

 

698.3

 

909.2

 

423.4

 

114.5

 

537.9

 

774.4

 

262.5

 

1,036.9

 

 


(1)              Consists of 636.1 MW of projects completed and connected and a 40.0 MW project completed and not yet connected.

 

(2)              Consists of 847.0 MW of projects completed and connected and a 40.0 MW project completed and not yet connected.

 

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Suppliers and Contractors

 

Manufacturing Segment

 

Our manufacturing business depends on our ability to obtain silicon-based raw materials, including polysilicon, ingots and wafers. We procure polysilicon primarily from domestic and international manufacturers. In addition to our headquarters, we have two offices located in Japan and Europe to conduct procurement activities. We believe our procurement team’s geographical proximity to the supply sources helps us better communicate with the suppliers and respond to them more efficiently. We believe our efforts to procure silicon-based raw materials from various sources will enable us to better control the silicon supply chain, increase manufacturing efficiency, and reduce margin pressure.

 

We have entered into medium-term and long-term supply contracts to procure silicon feedstock of different grades with Chinese and international suppliers. These medium-term and long-term suppliers include Jiangsu Zhongneng Polysilicon Technology Development Co., Ltd., or Jiangsu Zhongneng, and Changzhou GCL Photovoltaic Technology Co., Ltd., or GCL (Changzhou), both of which are subsidiaries of GCL. Our medium-term and long-term contracts have delivery terms up to 2020 with variable prices. Generally we negotiate purchase quantities annually. These contracts also require us to make an advance payment of a certain negotiated amount.

 

To secure sufficient feedstock to support our planned sales growth, in March 2008, we entered into an eight-year framework polysilicon supply agreement with Jiangsu Zhongneng, a supplier of polysilicon based in Jiangsu, China. In August 2008, we expanded the scope of the supply of polysilicon under this agreement to wafers. In August 2009, we extended the term of this supply agreement by another five years. In December 2010, Jiangsu Zhongneng assigned all of its obligations and rights under this supply agreement with respect to the wafer supply to GCL (Changzhou), a wafer supplier based in Jiangsu, China. Under a supplemental framework long-term agreement we entered into in March 2010 with Jiangsu Zhongneng, Jiangsu Zhongneng has agreed to supply to us up to an aggregate of 27,220 tons of polysilicon through 2020. Under a supplemental framework long-term wafer supply agreement we entered into with GCL (Changzhou) in January 2011, GCL (Changzhou) has agreed to supply to us wafers sufficient to produce up to an aggregate of 19,737 MW of PV modules over ten years from January 2011 to December 2020, and we have agreed to procure not less than 50% of our outsourced wafer requirement from GCL (Changzhou) each year during the term of the agreement. Under our agreements with GCL (Changzhou) and Jiangsu Zhongneng, the prices of the polysilicon and wafers were initially predetermined subject to periodic adjustments. Due to the volatility of polysilicon prices, we have negotiated actual polysilicon and wafer purchase amounts and prices under our long-term framework agreement with GCL (Changzhou) from time to time. For example, in January 2014, February 2015 and January 2016, we entered into supplemental agreements with GCL (Changzhou) and Jiangsu Zhongneng to modify our total wafer and polysilicon purchase quantities for 2014, 2015 and 2016, respectively, among other things. We expect to further negotiate our purchase commitments in the future taking into account market conditions.

 

In recent years, we have sourced ingots for wafer slicing, silver paste for cell production, and ribbon for module assembly from the new production facilities established by our key suppliers in the PV Park adjacent to our headquarters.  Sourcing from suppliers located within the PV Park and expanding our “close-in” supply system to cover a greater number of vendors allows us to collaborate with our vendors for better inventory and production management control, better monitoring of supply quality and easy access to onsite inventory.

 

Solar Power Projects Segment

 

We use solar modules that we produce in our solar power projects, which generally constitute a substantial portion of the average total costs. We procure inverters and other equipment of solar power projects from a broad range of reputable suppliers. We hire and supervise reputable local third-party contractors to construct solar power projects.  Our internal engineering team typically designs, operates and maintains our solar power projects located in China, and we engage third-party service providers to provide design, operation and maintenance services for our solar power projects located overseas.  We employ a number of measures to manage and monitor the performance of our contractors in terms of both quality and delivery schedule, including on-site supervisors, periodic inspections and reports. Under the construction agreements, we are generally entitled to compensation if our contractors fail to meet the prescribed quality requirements and deadlines.

 

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Table of Contents

 

Quality Assurance

 

Manufacturing Segment

 

We have an experienced quality management team that includes new product introduction planning, manufacturing quality control, supply chain quality management, customer quality support, quality reliability assurance, quality assurance system, calibration center and continual improvement office. We have established and maintain quality management systems in accordance with the requirements of ISO9001:2008 and reliability assurance systems in accordance with the requirements of JIS Q8901:2012. We have also obtained RoHS and REACH certification. We own one of the key national laboratories for PV science and technology, which has obtained ISO/IEC17025 certification from China National Accreditation Service for Conformity Assessment and test capabilities in the key laboratory that satisfy IEC61215/IEC61730 and UL1703 test requirements. Our products have obtained certification in accordance with the standards of IEC61215:2005, IEC61730:2004 and UL1703:2012. In 2014, we won the Changzhou Mayor Award for Quality and the “Rheinland Star Photovoltaic Module Award” granted by TUV Rheinland. In 2015, we won the Jiangsu Province Quality Management Excellence Award.

 

In May 2010, we entered into a strategic partnership agreement with TÜV Rheinland Group, or TÜV Rheinland, Underwriters Laboratories Inc., or Underwriters Laboratories, and China General Certification Center, three of the leading certification bodies. Under the agreement, TÜV Rheinland, Underwriters Laboratories and China General Certification Center will perform product certification tests at our Changzhou PV testing center and other facilities, allowing us to introduce our newest certified product lines in the shortest time to our customers. In October 2012, the testing center for key national laboratory of PV science and technology at Trina Solar received the official certification issued by Underwriters Laboratories, which recognizes our testing center as Underwriters Laboratories’ first global PV customer data program testing center. In 2013, Trina Solar was awarded the “Top Brand PV” seal in the “Modules” category in Germany by EuPD Research.

 

Our outstanding quality management team, advanced quality management systems, international first-class quality management hardware and environmental protection initiatives ensure our products are continually of a high quality to satisfy our customers, while also achieving our sustainable development goals.

 

The following table sets forth the major certifications we have received and major test standards our products have met as of December 31, 2015.

 

Certification Test Date

 

Certification or Test Standard

 

Relevant Products

 

 

 

 

 

January 2016

 

ISO 9001:2008 quality management system certification

 

Design, manufacture and sales of ingots, casting, silicon wafers, solar cells and PV solar modules; design, sales and service of PV application product; design, sales, installation and service of PV system

 

 

 

 

 

December 2015

 

ISO 14001:2004 environmental management system

 

Design, manufacture and sales of ingots, casting, silicon wafers, solar cells and PV solar modules; design, sales and service of PV application product; Design, sales, installation and service of PV system

 

 

 

 

 

December 2015

 

OHSAS18001 occupational health and safety management system

 

Design, manufacture and sales of ingots, casting, silicon wafers, solar cells and PV solar modules; design, sales and service of PV application product; Design, sales, installation and service of PV system.

 

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Certification Test Date

 

Certification or Test Standard

 

Relevant Products

 

 

 

 

 

May 2015

 

ISO 14064-1:2006 Specification with guidance at the organization level for quantification and reporting of greenhouse gas emissions and removals

 

Design, manufacture and sales of silicon, ingots, casting, silicon wafers, solar cells and PV solar modules

 

 

 

 

 

August 2015

 

ISO50001 EnMS certification regarding energy consumption

 

Energy management activities involved in the design, development and production of polycrystalline ingot, silicon wafers, cells and modules.

 

 

 

 

 

November 2014

 

PAS2050:2011 product carbon footprint certification

 

TSM-PC05A PV modules
TSM-PC14 PV modules
TSM-PDG5 PV modules

 

 

 

 

 

November 2014

 

ISO/TS 14067:2013

 

TSM-PC05A PV modules
TSM-PC14 PV modules
TSM-PDG5 PV modules

 

 

 

 

 

December 2014

 

JIS Q 8901 Certification from TÜV Rheinland

 

PV modules

 

 

 

 

 

December 2009

 

RoHS certification

 

PV modules

 

 

 

 

 

June 2014

 

REACH certification

 

PV modules

 

 

 

 

 

June 2013

 

ISO/IEC17025 CNAS laboratory accreditation certification

 

PV product testing center

 

 

 

 

 

October 2015

 

TÜV Rheinland product certification

 

PV modules sold in Europe

 

 

 

 

 

February 2015

 

TÜV SÜD product certification

 

PV modules sold in Europe

 

 

 

 

 

December 2015

 

MCS certification

 

PV modules sold in the United Kingdom

 

 

 

 

 

December 2015

 

CGC

 

PV modules sold in China

 

 

 

 

 

February 2015

 

JET product certification

 

PV modules sold in Japan

 

 

 

 

 

February 2015

 

JET product certification

 

PV modules sold in Japan

 

 

 

 

 

December 2015

 

Clean Energy Council (CEC)

 

PV modules sold in Australia

 

 

 

 

 

February 2015

 

SII product certification

 

PV modules sold in Israel

 

 

 

 

 

April 2015

 

UL 1703 certification

 

PV modules sold in North America

 

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Table of Contents

 

Certification Test Date

 

Certification or Test Standard

 

Relevant Products

 

 

 

 

 

June 2015

 

CSA certification(UL1703)

 

PV modules sold in North America

 

 

 

 

 

October 2015

 

Ammonia test

 

Special requirement from customer

 

 

 

 

 

October 2015

 

Salt mist test

 

Special requirement from customer

 

 

 

 

 

December 2015

 

Sand blast test

 

PV modules

 

 

 

 

 

September 2015

 

PID testing

 

PC05, PC14

 

 

 

 

 

July 2015

 

UL1500V certification

 

TSM-PE05A and TSM-PE14A polycrystalline modules

 

 

 

 

 

July 2015

 

IEC 1500V certification

 

TSM-PE05A and TSM-PE14A polycrystalline modules

 

 

 

 

 

September 2015 

 

Brazil Listing 

 

PV modules PC14

 

 

 

 

 

December 2015

 

CEC CA

 

PV modules

 

Solar Power Projects Segment

 

We have strict and comprehensive quality control standards and measures in every stage of the solar projects development process.  We conduct comprehensive market due diligence to identify solar projects that have projected internal returns that meet our standards. Our experienced and qualified engineering team designs the projects with technical specifications that provide for the quality and performance of our solar power plants.  PV modules used in our solar power projects are from our manufacturing business that have the certifications and meet test standards discussed above. Our PV modules typically come with a ten-year warranty for defects in material and workmanship and a minimum power output warranty of up to 25 years following the date of purchase or installation. We further guarantee that module power output will not decrease by more than approximately 0.7% per year after the initial year of service. We closely monitor and supervise construction contractors as part of the quality control process, who also typically provide warranties and performance guarantees of up to five years.  Our operating and maintenance team and third party service providers tests, checks and continuously monitors the quality and performance of our operating solar power projects.

 

Customers and Markets

 

Manufacturing Segment

 

In our manufacturing segment, we currently sell our PV modules primarily to power plant developers and operators, wholesalers and PV system integrators. We focus on different types of clients depending largely upon the demand in specific markets. We work with solar power plant developers and operators, who tend to be large volume purchasers, by supplying PV modules for downstream projects. PV system integrators typically design and sell integrated systems that include our branded PV modules along with other system components. Some of the PV system integrators also resell our modules to other system integrators. Our major customers in 2015 included NVT, LLC dba SunEdison, Sanshin Electronics Co., Ltd., Solar City, SunEnergy1, FLS Energy, Welspun Energy Private Limited, Vivint Sloar Developer, LLC, Bluefield SIF Investments Limited, Consolidated Edison Development, TBEA Xinjiang Sunoasis Co., Ltd.  We have a quality customer base as many of our customers are well-known wholesalers and system integrators in their respective markets and are expanding to become multinational PV companies.

 

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A small number of customers have historically accounted for a significant portion of our net sales. Our top five customers collectively accounted for approximately 18.7%, 34.7% and 23.3% of our net sales in 2013, 2014 and 2015, respectively. Our largest customer contributed approximately 5.9% of our net sales in 2015.

 

We currently sell most of our PV modules to customers located in the United States, China, Japan and Europe. Solar manufacturers like us have capitalized on government and regulatory policies promoting solar power in many jurisdictions. In order to continue growing our sales and to reduce our exposure to any particular market segment, we intend to broaden our geographic presence and customer base. The United States, China and Japan are our most important markets and in 2015, the United States, China and Japan accounted for 34.7%, 28.5% and 11.4% of our net sales, respectively. In 2015, our sales of PV modules in the United States, China and India increased significantly and we increased our market presence globally. We have built our brand as one of the top global solar brands.

 

To enhance our sales capabilities in the European, American and Asian (excluding China) markets, we have established regional headquarters in San Jose, Zurich, Tokyo and Singapore. We also have established sales and business development offices in Madrid, Beijing, Shanghai, Munich, Abu Dhabi, Sydney, Chengdu, Urumqi, Santiago and New Dehli, all to support our growing base of customers and to seek out business development opportunities in the regions.  We also plan to drive our sales growth through expansion into downstream arrangements in major markets such as system integrations and project developments. We believe these actions will help reduce the effects of reduced incentives from the governments of certain European countries.

 

The following table sets forth our total net sales by geographical region for the periods indicated:

 

 

 

Year Ended December 31,

 

 

 

2013

 

2014

 

2015

 

Region

 

Total Net
Sales

 

Percent

 

Total Net
Sales

 

Percent

 

Total Net
Sales

 

Percent

 

 

 

(in thousands, except for percentages)

 

China

 

$

591,071

 

33.3

%

$

747,811

 

32.7

%

$

864,108

 

28.5

%

Europe

 

548,557

 

30.9

 

219,291

 

9.6

 

331,681

 

10.9

 

United States

 

302,270

 

17.0

 

634,446

 

27.8

 

1,053,637

 

34.7

 

Japan

 

147,403

 

8.3

 

457,901

 

20.0

 

345,567

 

11.4

 

India

 

79,105

 

4.5

 

67,359

 

2.9

 

242,950

 

8.0

 

Others

 

106,565

 

6.0

 

159,311

 

7.0

 

197,569

 

6.5

 

Total

 

$

1,774,971

 

100.0

%

$

2,286,119

 

100.0

%

$

3,035,512

 

100.0

%

 

We conduct our PV module sales typically through short-term and medium-term contracts with terms of one year or less or, to a lesser extent, long-term sales or framework agreements with terms of generally one to two years. Our short-term and medium-term contracts provide for an agreed sales volume at a fixed price. Our long-term sales or framework agreements provide for a fixed sales volume or a fixed range of sales volume to be determined generally two to three quarters before the scheduled shipment date. Prices for long-term sales or framework agreements are generally determined one month prior to the start of the quarter of the scheduled shipment date. Compared to short-term and medium-term contracts, we believe our long-term sales or framework agreements not only provide us with better visibility into future revenues, but also help us enhance our relationships with our customers.

 

We may require advance payments depending on the credit status of our customer, our relationship with the customer, market demand and the terms of the particular contract. Our contracts with customers stipulate different post-delivery payment schedules based on the credit worthiness of the customer. We enhanced our credit control policy in 2015 and our accounts receivable turnover days were approximately 78 days in 2015, compared to 99 days in 2014. More than 90% of our overseas credit sales are insured against non-payment by our customers. The amount of credit line insurance coverage for each transaction is based on a rating assigned by the insurer to the customer, based on that customer’s credit history.

 

Pursuant to our sales contracts, we provide customers with warranty services. Our PV modules were historically sold with a two or five year warranty for defects in material and workmanship and a minimum power output warranty for up to 25 years following the date of purchase or installation. In 2011, we extended the warranty for defects in material and workmanship to ten years and began to guarantee that module power output will not decrease by more than approximately 0.7% per year after the initial year of service.

 

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We seek to better serve our customers and end users by setting up local offices with sales and marketing, sales support and logistics teams close to them. We are also expanding our range of value-added services to customers. We serve residential and commercial end-customers through a network of local distributors and system integrator partners. For distributors and system integrators, we provide marketing support, logistics support that minimizes handling and administrative costs, and pre-sale and post-sale supports that include customized product selection, technological and installation support. We offer a three-pronged service solution featuring complementary design services, high performance “Honey” modules and the rapid install Trinamount racking system, a proprietary system to mount PV modules onto residential and commercial rooftops. For our customers in the utility sector, we will continue to provide a greater level of pre-sale due diligence and technical input to facilitate their procurement.

 

Solar Power Projects Segment

 

We sell our build-to-sell projects to predetermined or committed purchasers. For our build-to-own projects, we sell the electricity generated from those projects to the local transmission grid.  Purchasers of build-to-sell projects include large utility companies or other power producers that desire to sell the electricity from the projects to local power suppliers. We focus on countries and regions where the solar power industry is growing rapidly and expected to have sustainable growth supported by favorable government policies, such as China.

 

Sales and Marketing

 

Manufacturing Segment

 

Over the years, we have expanded our distribution network globally. While our core solar module customer base continues to expand in China and the United States, we continue to grow our sales and distribution channels into newer and emerging solar power markets, which include the United Kingdom, India and Japan, as well as other markets in Asia, Africa, the Middle East, Latin America, and the Caribbean Islands. To grow our sales and reduce exposure to any particular market, we have broadened our geographic presence and diversified our sales among distributors, wholesalers, power plant developers and operators, PV system integrators and regional and national grid operators through increased sales and marketing and customer support efforts.

 

To further expand our distribution network and enhance our sales and delivery capabilities, we have established regional headquarters, warehouse operations and have major sales offices in the locations listed below. Our localized offices will continue to be supported by our global operations and administration headquarters located in Changzhou, China.

 

Global Headquarters

Changzhou, China

Regional Headquarters

San Jose, California, US (January 2010)

Zurich, Switzerland (January 2010)

Tokyo, Japan (February 2010)

Singapore (November 2011)

Warehouse Operations

Rotterdam, the Netherlands (December 2008)

San Jose, California, US (June 2009)

Sales and Business Development Offices

Madrid, Spain (May 2010)
Beijing, China (July 2010)

Shanghai, China (July 2010)

Munich, Germany (March 2011)

Abu Dhabi, United Arab Emirates (December 2011)

Sydney, Australia (May 2011)

Chengdu, China (March 2012)

Urumqi, China (March 2012)

Santiago, Chile (September 2012)

New Dehli, India (September 2015)

 

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Our marketing programs include participation in industry conferences, trade fairs and public relations events. Our sales and marketing group works closely with our research and development and manufacturing groups to coordinate our product development activities, product launches and ongoing demand and supply planning.

 

Solar Power Projects Segment

 

We diligently conducts market due diligence, routinely meet with industry players and interested investors, and attends industry conferences and events to identify project development opportunities. Our business team has extensive industry expertise and significant experience in working with government authorities and developing new projects for our target markets, especially in China.  With respect to our build-to-sell projects, our business team generally actively identifies and pursues potential purchasers before commencing construction.  With respect to our build-to-own projects, we focus on markets with favorable government policies that guarantee or provide favorable financial incentives for the purchase of solar power by local or national grid companies.

 

Intellectual Property

 

In manufacturing our solar power products, we use know-how available in the public domain and unpatented know-how developed in-house. We rely on a combination of trade secrets and employee contractual protections to establish and protect our proprietary rights. We believe that many elements of our solar power products and manufacturing processes involve proprietary know-how, technology or data that are not coverable by patents or patent applications, including technical processes, equipment designs, algorithms and procedures. We have taken security measures to protect these elements. All senior research and development personnel employed by us have entered into confidentiality, non-competition and proprietary information agreements with us. These agreements address intellectual property protection issues and require our employees to assign to us all of the inventions, designs and technologies they develop during their terms of employment with us.

 

We obtained an additional 102 patents in 2015. As of December 31, 2015, we had 671 issued patents, including eight jointly owned by third parties, and 484 patent applications pending in China. Our issued patents and our pending patent applications mainly relate to technology that we are currently using, including technology relating to improvements to the solar power product manufacturing process and integration of construction elements into our PV modules or solar systems. 105 of our issued patents and patent applications relate to technology that we do not use in our current production of solar power products. As we expand our product portfolio, continue our expansion into solar cell manufacturing and enter into polysilicon manufacturing in the future, we believe that the development and protection of our intellectual property will become more important to our business. We intend to continue to assess appropriate opportunities for patent protection of those aspects of our technology that we believe provide a significant competitive advantage to us.

 

We have registered as a trademark the logo “Trina” in China, the European Union, Japan, Singapore, Switzerland, Morocco, Taiwan, Thailand, Croatia, Canada, South Korea, the Philippines, Australia, the United States, the United Arab Emirates and Vietnam. We have registered as a trademark the logo “Trinasolar” in China, the United States, Canada, the European Union, Australia, the United Arab Emirates, Croatia, Thailand, the Philippines, Japan, Singapore, Switzerland, Morocco, Taiwan, South Korea, India, Vietnam and Turkey and the logo “TSM” in the European Union, Australia, China, Croatia, Japan, Morocco, South Korea, Singapore, Switzerland, Turkey, the United States and Vietnam. We have pending trademark registration applications for the logos “Trina” and “Trinasolar” in Pakistan, Indonesia and several other countries. We filed a trademark registration application for the logo “天合光能” in the PRC in December 2007 and in Taiwan in September 2009. We also registered as a trademark the logo “MeSolar” in China, Croatia, Singapore, Canada, Morocco, Turkey, the United Arab Emirates, Thailand, the European Union, Taiwan, Japan, Australia and Switzerland and registered as a trademark the logo “YouSolar” in China, the United States, Australia, Morocco, the United Arab Emirates, Taiwan, Japan, South Korea, Croatia, the European Union, Thailand, Philippines, Turkey, Vietnam, Switzerland and Singapore. We have filed trademark registration applications for the logo “Trinasolar 天合光能” in China, the European Union, Croatia, South Korea, Singapore, Japan and several other countries. We have also recently filed European Community Trade Mark (CTM) registration for the logo “Honey” and “Comax” in twenty-seven European Union member states and will extend the registration to other states afterwards. Additionally, we have filed the trademark registration applications for the logos “天合光能,”“天合,” “天和,” “天何,” “天河,” “天禾,” and “天核” individually with the trademark office in the PRC in November 2009, and we also filed the trademark registration applications for the logo “Smart energy together” with the trademark office in the PRC in September 2012. We filed trademark registrations for the logos “Trina” and “Trinasolar” in Brazil, Costa Rica, Malaysia, Jordan and Chile in 2013, and also filed trademark registrations in 80 countries and regions under the Madrid Agreement and the Madrid Protocol. We also filed trademark registration for the logo “合创智慧能源”, “Trinahome” and “Trinamap” in China during 2013. In December 2012, the trademarks “天合光能” and “TrinaSolar” were certified as well-known trademarks of Changzhou City. In December 2013, the trademark “天合光能” was certified as well-known trademark of Jiangsu Province. In 2014, we filed trademark registrations for the logos “Trinasmart” and “Dualglass” in China, and the logo “Smart energy together” was registered in Classes 6, 9, 11, 14, 19, 25, 28, 39 and 40 in China. In 2015, we filed trademark registrations in China for the logos “Trinabest,” “Trinastore,” “Trinastorage,” “Spacemax,”  “Airmax,” “Tallmax,” “Allmax,” “Trinaswitch,” “Sunbox,” “阳光宝盒,” “Splitmax,” “Duomax,” “Trinaflex,” “Trinapeak,” “天合能源,” “天合智慧能,” “Trina energy,” “Trina smart energy.”

 

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Competition

 

The market for solar power products is competitive and it evolves quickly. We expect to face increasing competition, which may result in price reductions, reduced margins or loss of market share. We believe that the key competitive factors in the market for PV modules include:

 

·                                          manufacturing efficiency;

 

·                                          power efficiency and performance;

 

·                                          price;

 

·                                          strength of supplier relationships;

 

·                                          aesthetic appearance of PV modules; and

 

·                                          brand name and reputation.

 

We compete with other PV module manufacturing companies, including dedicated PV manufacturers such as First Solar Inc., GCL, Canadian Solar, Inc., JinkoSolar Holding Co., Ltd., JA Solar Holdings Co., Ltd. and Xi’an LONGi Silicon Materials Corp. as well as multinational conglomerates such as Mitsubishi Electric Corporation. We may also face competition in the downstream solar power business from competitors such as Canadian Solar Inc., JinkoSolar Holding Co., Ltd., and GCL, as well as the large Chinese state-owned electric utility enterprises in the downstream solar power business in China. Some of our competitors may have a stronger market position than ours, more sophisticated technologies and products, greater resources and better name recognition than we do. Further, some of our competitors are developing and are currently producing products based on new solar power technologies, such as thin-film technology, which may ultimately have costs similar to, or lower than, our projected costs.

 

The barriers to entry are relatively low in the PV module manufacturing business, given that manufacturing PV modules is labor intensive and requires limited technology.  As the shortage of polysilicon has eased, supply chain management and financial strength have become less significant barriers to entry and many new competitors may enter the industry and cause it to become over-saturated. Some mid-stream solar power products manufacturers have been seeking to move downstream to strengthen their position in regional markets. In addition, we may also face new competition from manufacturers developing thin film and other PV technologies that are designed to offer economic or performance advantages, several of which have already announced their intention to start production of solar cells or module products. Decreases in polysilicon prices and increases in PV module production could result in substantial downward pressure on the price of PV modules and intensify the competition we face.

 

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Environmental Matters

 

We believe we have obtained the environmental permits necessary to conduct our business. Our manufacturing processes generate noise, waste water, gaseous wastes and other industrial wastes. However, we have devoted efforts to reduce such wastes to acceptable levels. We have installed various types of anti-pollution equipment in our facilities to reduce, treat and, where feasible, recycle the wastes generated in our manufacturing process. We maintain programs to reduce electricity consumption, water consumption, waste water and greenhouse gas emission since operation and aim to achieve sustainable development and a low carbon footprint. In connection with our module production activities, we have significantly reduced electricity consumption, water consumption, waste water emissions, and greenhouse gas emissions in our production.

 

Our solar power projects business is usually supported by environmental laws and policies, and receives government subsidies or other financial incentives because it produces clean and renewable energy.  For example, the Renewable Energy Law of the PRC sets forth policies to encourage the development and utilization of solar power and other renewable energy.  The Circular on Improving Policies on the On-grid Tariffs of Solar Power Generation issued by the NDRC of China provides that the FIT for solar power projects be RMB1.00 per kilowatt-hour, or kWh. See “Regulation” section below.  During our project development process, we often prepare environmental impact assessment reports as part of the permitting process. During the construction stage, we comply with environmental laws and regulations relating to construction. Once operational, our solar power projects do not generate industrial waste.

 

We believe we are currently in compliance with all applicable environmental laws and regulations. Our operations are subject to regulation and periodic monitoring by local environmental protection authorities. If we fail to comply with present or future environmental laws and regulations, we could be subject to fines, suspension of production or a cessation of operations.

 

Insurance

 

We maintain property insurance policies with reputable insurance companies for covering our equipment, facilities, buildings and their improvements, and office furniture. These insurance policies cover losses due to fire, earthquake, flood and a wide range of other natural disasters. We maintain director and officer liability insurance for our directors and executive officers. We have limited worldwide product liability insurance coverage for our products manufactured in China. We consider our insurance coverage to be in line with other manufacturing companies of similar size in China. However, significant damage to any of our manufacturing facilities, whether as a result of fire or other causes, could have a material adverse effect on our results of operation. We paid an aggregate of approximately $2.4 million in insurance premiums in 2015.

 

Some of our overseas credit sales are insured against non-payment by our customers. The amount of insurance coverage for each transaction is based on a rating assigned by the insurer to the customer, based on that customer’s credit history.

 

Regulation

 

This section sets forth a summary of the most significant regulations or requirements that affect our business activities in China or our shareholders’ right to receive dividends and other distributions from us.

 

Renewable Energy Law and Other Government Directives

 

In February 2005, China enacted its Renewable Energy Law, which became effective on January 1, 2006 and was amended on December 26, 2009. The Renewable Energy Law sets forth policies to encourage the development and use of solar energy and other non-fossil energy. The law sets forth the national policy to encourage and support the use of solar and other renewable energy and the use of on-grid generation. It also authorizes the relevant pricing authorities to set favorable prices for the purchase of electricity generated by solar and other renewable power generation systems. The law imposes mandatory obligations on grid enterprises to purchase the full amount of on-grid electricity generated by approved renewable energy plants whose power generation projects meet the grid connection technical standards in the areas covered by the grid enterprises’ power grids.

 

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The law also sets forth the national policy to encourage the installation and use of solar energy water-heating systems, solar energy heating and cooling systems, solar PV systems and other solar energy utilization systems. It also provides financial incentives, such as national funding, preferential loans and tax preferences for the development of renewable energy projects. In January 2006, NDRC promulgated two implementation directives of the Renewable Energy Law. These directives set forth specific measures in setting prices for electricity generated by solar and other renewal power generation systems and in sharing additional expenses occurred. The directives further allocate the administrative and supervisory authorities among different government agencies at the national and provincial levels and stipulate responsibilities of electricity grid companies and power generation companies with respect to the implementation of the Renewable Energy Law.

 

China’s Ministry of Construction also issued a directive in June 2005 that seeks to expand the use of solar energy in residential and commercial buildings, and encourages the increased application of solar energy in different townships. In addition, China’s State Council promulgated a directive in July 2005 that sets forth specific measures to conserve energy resources.

 

On September 4, 2006, China’s Ministry of Finance and Ministry of Construction jointly promulgated the Interim Measures for Administration of Special Funds for Application of Renewable Energy in Building Construction, which provides that the Ministry of Finance will arrange special funds to support the application of renewable energy in building construction in order to enhance building energy efficiency, protect the ecological environment and reduce the consumption of fossil energy. These special funds provide significant support for the application of solar energy in hot water supply, refrigeration and heating, PV technology and lighting integrated into building construction materials.

 

In August 2007, NDRC issued the Medium and Long-term Development Plan for Renewable Energy which describes the national government’s financial incentives for the renewable energy industry for the multi-year period ending 2020, with an estimated required investment amount of approximately $300 billion. The plan also calls for increasing the overall installation capacity for solar energy to 300 MW by 2010 and 1.8 GW by 2020. Recent policy statements have indicated that these targets may rise to 400 MW to 500 MW by 2010 and 2 GW by 2020.

 

On April 1, 2008, the PRC Energy Conservation Law came into effect. Among other objectives, this law encourages the utilization and installation of solar power facilities in buildings for energy-efficiency purposes.

 

In March 2009, China’s Ministry of Finance promulgated the Interim Measures for Administration of Government Subsidy Funds for Application of Solar Photovoltaic Technology in Building Construction, or the Interim Measures, to support the demonstration and the promotion of solar PV applications in China. Local governments are encouraged to issue and implement supporting policies for the development of solar PV technology. These Interim Measures, set forth subsidy funds set at RMB20 per watt for 2009 to cover solar PV systems integrated into building construction that have a minimum capacity of 50 kilowatt peak.

 

In April 2009, the Ministry of Finance and the Ministry of Housing and Urban-Rural Development jointly issued the “Guidelines for Declaration of Demonstration Project of Solar Photovoltaic Building Applications.” These guidelines created a subsidy of up to RMB20 per watt for BIPV projects using solar-integrated building materials and components and up to RMB15 per watt for BIPV projects using solar-integrated materials for rooftops or walls.

 

In July 2010, the Ministry of Housing and Urban-Rural Development issued the “City Illumination Administration Provisions” or the Illumination Provision. The Illumination Provisions encourage the installation and use of renewable energy system such as PV systems in the process of construction and re-construction of city illumination projects.

 

On July 24, 2011, NDRC released the “Notice Regarding the Pricing Policy of the Feed-in Tariffs” (NDRC Pricing [2011] No. 1594), or the Notice. According to the Notice, all solar energy projects that were approved before July 1, 2011 and completed construction and commenced manufacturing before December 31, 2011 shall price their feed-in tariff at RMB1.15 kWh (tax included), if such price had not been set by NDRC before the date of the Notice.  All other solar energy projects, except for the solar energy projects in Tibet which shall still price their feed-in tariff at RMB1.15 per kWh (tax included), shall price at RMB1 per kWh (tax included). The solar power projects granted through special auction procedures shall follow the auction price, which shall not exceed the relevant prices set forth in the Notice. In addition, according to the Notice, the solar power projects receiving governmental subsidies shall follow certain local feed-in tariff guidance.

 

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On March 1, 2013, China’s State Council issued the “Twelfth Five Year Plan.”  The plan supports the promotion and development of renewable energy, including the solar energy.  The plan also encourages the development of solar PV power stations in the areas with abundant solar power resource.

 

In July 2013, China’s State Council issued the “Several Opinions on Promoting the Healthy Development of the PV Industry.”  The opinions stress the importance of promoting the healthy development of the PV industry and set the goal that the total installed capacity reaches thirty-five million kWh by 2015.  The opinions also indicate the State Council’s intention to accelerate the adjustment of the PV industry’s structure and the advancement of PV technology.

 

In August 2013, the National Energy Administration promulgated the Interim Measures for the Administration of Solar Power Projects, which stipulated that solar power projects are subject to filings with the provincial NDRC. Such filing is subject to the national development plan for solar power generation, the regional scale index and implementation plan of the year as promulgated by the competent national energy authority and a pre-condition for connecting to power grid.

 

On August 26, 2013, the NDRC issued the Circular on Promoting the Healthy Development of PV Industry by Price Leverage, or the NDRC Pricing Circular. Under this Circular, the FIT (tax inclusive) for solar power projects approved or filed after September 1, 2013 or beginning operation after January 1, 2014 would be RMB0.90 per kWh, RMB0.95 per kWh or RMB1.00 per kWh, depending on the locations of the projects (excluding on-grid solar power projects located in Tibet). In addition, the NDRC Pricing Circular sets forth special rules that entitle distributed solar power projects (excluding the projects that have received an investment subsidy from the central budget) to a national subsidy of RMB0.42 per kWh. The difference (in amount) between the FIT for solar power projects and the desulphurized coal benchmark electricity price, or the subsidies paid to distributed solar power projects, are funded by the renewable energy development funds. The above FIT and subsidy policies are valid for 20 years for each power generation project since its formal operation, in principle.

 

In September 2013, the Ministry of Finance and the SAT jointly issued the “Notice on the Value-added Tax Policy for PV Power Generation.” This notice announces a new policy regarding value-added tax, effective from October 1, 2013 to December 31, 2015. Under the new policy, 50% of the value-added tax paid by taxpayers in connection with sales of self-produced electrical products generated by solar energy will be immediately refunded to the taxpayers when the value-add tax is collected.

 

On November 26, 2013, the National Energy Administration promulgated the “Interim Measures for the Administration of Distributed PV Power Generation.”  The interim measures clarify that the distributed solar projects are subject to filings with the provincial or regional NDRC. Such filing is subject to State Council’s rules for administration of investment projects and the regional scale index and implementation plan of the year as promulgated by the competent national energy authority. Distributed solar projects in the regional scale index of the year that are not completed or put into operation within two years from their respective filing date must be cancelled and disqualified to receive national subsidies. The interim measures also provide that the filing procedures should be simplified and the electric power business permit and permits in relation to land planning, environmental impact review, energy saving evaluation and other supporting documents may be waived. The interim measures are valid for three years starting from the date of promulgation.

 

In February 2014, the Certification and Accreditation Administration and the National Energy Administration jointly issued the “Implementation Opinions on Strengthening the Testing and Certification of PV Products.” The implementation opinions provide that only certified PV products may be connected to the public grid or receive government incentives.  The institutions that certify PV products must be approved by the Certification and Accreditation Administration.  According to the implementation opinions, PV products that are subject to certification include PV battery parts, inverters, control devices, confluence devices, energy storage devices and independent PV systems.

 

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In September 2014, the National Energy Administration promulgated the Notice on Further Implementation of Certain Policies in Relation to Distributed Solar Power, which aims to encourage the application of distributed solar power in various fields by improving subsidies, financing and supporting services.

 

In October 2014, the National Energy Administration released a succession of circulars on regulating the investment and development order of PV power stations and subduing the speculative behaviors. These circulars stipulates that the filings of solar power projects will be automatically invalidated if the construction of solar power projects has not commenced prior to the expiration of such filings and no application for extension has been made. The investor applying for solar power projects shall take the lead on the project investment and development as a controlling party. Prior to the commercial commencement, the investor shall not transfer the project without the consent from the filing authority. Also, in case of any material changes to the investing party or any changes to the location or details of the construction, the investor shall re-apply for the filing with the authority.

 

In March 2015, the National Energy Administration promulgated the Circular on Implementing Plans of PV Generation Construction for 2015, which announced that the total target for the increase in PV power generation capacity of ground-mounted projects for 2015 will be 17.8 GW and indicated that rooftop distributed solar projects and ground-mounted projects which are completely for self-use would no longer be subject to quota requirement.

 

On March 20, 2015, the NDRC and the National Energy Administration issued a directive opinion, which emphasizes that the competent provincial authorities must strengthen the implementation of the provisions with regard to the purchase of the full amount of electricity generated by renewable energy and avoid any curtailment of solar power projects. In addition, it also stated that electricity generated by clean energy is encouraged to be sold directly to the consumers in the regions where there is ample supply of clean energy, and the relevant parities must coordinate the trans-provincial supply of electricity and power transmission capability, in order to maximize the utilization of clean energy.

 

Electric Power Industry

 

The regulatory framework of the PRC power industry consists primarily of the Electric Power Law of the PRC, which became effective on April 1, 1996 (subsequently revised on August 27, 2009 and April 24, 2015) and the Electric Power Regulatory Ordinance, which became effective on May 1, 2005. One of the stated purposes of the Electric Power Law is to protect the legitimate interests of investors, operators and users and to ensure the safety of power operations. According to the Electric Power Law, the PRC government encourages PRC and foreign investment in the power industry. The Electric Power Regulatory Ordinance sets forth regulatory requirements for many aspects of the power industry, including, among others, the issuance of electric power business permits, the regulatory inspections of power generators and grid companies and the legal liabilities for violations of the regulatory requirements.

 

On January 5, 2006, the NDRC promulgated the Administrative Provisions on Renewable Energy Power Generation which set forth specific measures for setting the price of electricity generated from renewable energy sources, including solar and for allocating the costs associated with renewable power generation. The Administrative Provisions on Renewable Energy Power Generation also delegate administrative and supervisory authority among government agencies at the national and provincial levels and assign partial responsibility to electricity grid companies and power generation companies for implementing the Renewable Energy Law.

 

Pursuant to the Provisions on the Administration of the Electric Power Business Permit, which were issued by the State Electricity Regulatory Commission, or the SERC, and became effective on December 1, 2005 (subsequently revised on May 30, 2015), unless otherwise provided by the SERC, no company or individual in the PRC may engage in any aspect of electric power business (including power generation, transmission, dispatch and sales) without first obtaining an electric power business permit from the SERC. These provisions also require that if an applicant seeks an electric power business permit to engage in power generation, it must also obtain in advance all relevant government approvals for the project including construction, generation capacity and environmental compliance.

 

However, there are exceptions where the PV power generation projects may not need to obtain an electric power business permit from the SERC. On July 18, 2013, the NDRC issued the Interim Measures for the Administration of Distributed PV Power Generation, which waived the previous requirement to obtain an Electric Power Business Permit for distributed PV power generation project. On April 9, 2014, the National Energy Administration issued the Circular on Clarifying Issues concerning the Administration of Electric Power Business Permit, which waived requirement to obtain an Electric Power Business Permit for those solar power generation projects with installed capacity less than 6 MW and any distributed PV power generation project approved by or filed with the NDRC or its local branches, and required local National Energy Administration to simplify the Electric Power Business Permit application procedure for the solar power generation companies.

 

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All electric power generated in China is distributed through power grids, except for electric power generated by facilities not connected to a grid. The distribution of power to each grid is administered by dispatch centers, which the administration and dispatch of planned output by power plants connected to the grid. The Regulations on the Administration of Electric Power Dispatch to Networks and Grids, promulgated by the State Council and the former Ministry of Electric Power Industry, effective on November 1, 1993, as amended on January 8, 2011, and its implementation measures, regulate the operation of dispatch centers.

 

On November 29, 2011, the Ministry of Finance, NDRC and National Energy Administration jointly issued the Interim Measures for the Administration of Levy and Use of Renewable Energy Development Fund, which provides that development funds for renewable energy include designated funds arranged by the public budget of national finance, and renewable energy tariff surcharge collected from electricity consumers. Solar power projects can only receive central government subsidies after completing certain administrative and perfunctory procedures with the relevant authorities of finance, pricing and energy to be listed in the Subsidy Catalog issued by the Ministry of Finance, NDRC and National Energy Administration. These subsidies represent the difference between the FIT for solar power projects and the desulphurized coal benchmark electricity price. In order to be listed in the Subsidy Catalog, ground-mounted projects must submit applications to the relevant provincial authorities; and in accordance with the Circular on Issues Concerning Implementing Electric Quantity-based Subsidy Policy for Distributed Generation Projects issued by the Ministry of Finance on July 24, 2013, rooftop distributed solar power projects must submit applications to the grid enterprises in the area where the projects are located. After preliminary review of the applications, the provincial authorities will jointly report to the Ministry of Finance, NDRC and National Energy Administration, and the Ministry of Finance, NDRC and NEA will have final review on such applications to decide whether to list in the Subsidy Catalog.

 

The following flow chart illustrates the process for a utility-scale project to be listed in the Subsidy Catalog.

 

GRAPHIC

 

The Renewable Energy Law provides financial incentives, including national funding for the development of renewable energy projects. Pursuant to the Interim Measures for the Administration of Designated Funds for the Development of Renewable Energy issued by the Ministry of Finance and effective on April 2, 2015, the Ministry of Finance sets up designated funds to support the development and utilization of renewable energy in accordance with the national fiscal budget. According to the Implementing Measures for the Administration of Price of Renewable Energy and Cost Sharing Program and the Interim Measures for Adjustment to Additional On-grid Tariff for Renewable Energy issued by the NDRC, the gap between the FIT for solar power projects and the desulphurized coal benchmark electricity price is subsidized by collecting tariff surcharge from the electricity consumers within the service coverage of grid enterprises at or above provincial level.

 

Environmental Regulations

 

We are subject to a variety of governmental regulations related to environmental protection and the prevention and control of water, air, solid waste and noise pollution. The major environmental regulations applicable to us include the Environmental Protection Law of the PRC, the Law of PRC on the Prevention and Control of Water Pollution, Implementation Rules of the Law of PRC on the Prevention and Control of Water Pollution, the Law of PRC on the Prevention and Control of Air Pollution, the Law of PRC on the Prevention and Control of Solid Waste Pollution, and the Law of PRC on the Prevention and Control of Noise Pollution and the PRC Law on Appraising Environment Impacts.

 

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Labor Laws and Regulations

 

The Work Safety Law, or the WSL, was adopted at the 28th meeting of the Standing Committee of the Ninth People’s Congress on June 29, 2002, and was promulgated for implementation as of November 1, 2002 (subsequently revised on August 31, 2014). The WSL is applicable to the work safety for entities engaging in manufacturing and business operation activities within the PRC. Such entities must comply with the WSL and other relevant laws and regulations concerning work safety and strengthen the administration of work safety, establish and perfect the system of responsibility for work safety and ensure safe manufacturing conditions.

 

The PRC Labor Contract Law was promulgated on June 29, 2007 and became effective on January 1, 2008. On September 3, 2008, the PRC government promulgated the Implementing Rules on the PRC Labor Contract Law. On December 28, 2012, the Standing Committee of the National People’s Congress issued the amendments to the PRC Labor Contract Law, which became effective on July 1, 2013. Pursuant to the PRC Labor Contract Law, employers must enter into written labor contracts with employees. Employers must pay their employees’ wages equal to or above local minimum wage standards, establish labor safety and workplace sanitation systems, comply with government labor rules and standards and provide employees with appropriate training regarding workplace safety. In addition, the PRC Labor Contract Law imposes more stringent requirements on employers with regard to, among others, severance payment and non-fixed-term employment contracts, time limits for probation periods, as well as the duration and the times that an employee can be placed on a fixed-term employment contract. Violations of the PRC Labor Contract Law and the PRC Labor Law may result in liabilities to employees and subject employer to administrative sanctions including fines or, in the case of serious violations, criminal liability.

 

The PRC regulatory authorities have passed a variety of laws and regulations regarding statutory social welfare benefits, including, among others, the PRC Social Insurance Law, the Regulations of Insurance for Occupational Injury, the Regulations of Insurance for Unemployment, the Provisional Insurance Measures for Maternal Employees, and the Interim Provisions on Registration of Social Insurance. Pursuant to these laws and regulations, companies in China have to make sufficient contributions of statutory social welfare benefits for their employees, including medical care insurance, occupational injury insurance, unemployment insurance, maternity insurance, pension benefits and housing funds. Failure to comply with such laws and regulations may result in supplementary payments, surcharges or fines.

 

Restriction on Foreign Ownership

 

The principal regulation governing foreign ownership of solar power businesses in the PRC is the Foreign Investment Industrial Guidance Catalogue (effective as of April 10, 2015), or the Catalogue. The Catalogue classifies industries into four categories: encouraged, permitted, restricted and prohibited. As confirmed by the government authorities, Trina China, our operating subsidiary, is engaged in an encouraged industry. Trina China is permitted under the PRC laws to be wholly owned by a foreign company. Trina China is, accordingly, also entitled to certain preferential treatment granted by the PRC government authorities, such as exemption from tariffs on equipment imported for its own use.

 

Tax

 

China’s parliament, the National People’s Congress, adopted the Enterprise Income Tax Law on March 16, 2007. On December 6, 2007, the PRC State Council issued the Implementation Regulations of the Enterprise Income Tax Law, both of which became effective on January 1, 2008. The EIT Law imposes a uniform tax rate of 25% on all PRC enterprises, including foreign-invested enterprises, and eliminates or modifies most of the tax exemptions, reductions and preferential treatments available under the previous tax laws and regulations. Under the EIT Law, certain enterprises may benefit from a preferential tax rate of 15% if they qualify as “high and new technology enterprises strongly supported by the State,” subject to certain general factors and conditions described therein. In September 2008, Trina China obtained the High and New Technology Enterprise Certificate with a valid term of three years starting from 2008. In 2011, Trina China renewed its High and New Technology Enterprise Certificate, effective from 2011 to 2013, entitling it to a preferential income tax rate of 15% from 2008 through 2013. Also, in 2011, TST obtained the High and New Technology Enterprise Certificate, effective from 2011 to 2013, and is entitled to a preferential income tax rate of 15% during that period.  In 2014, Trina China and TST renewed their High and New Technology Enterprise Certificates, effective from 2014 to 2016, which entitle both of them to a preferential income tax rate of 15% from 2014 through 2016.

 

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Pursuant to the Provisional Regulation of China on Value Added Tax and its implementing rules, all entities and individuals that are engaged in the sale of goods, the provision of processing, repairs and replacement services and the importation of goods in China are generally required to pay value added tax, or VAT, at a rate of 17.0% of the gross sales proceeds received, less any deductible VAT already paid or borne by the taxpayer. Further, when exporting goods, the exporter is entitled to a portion or all of the refund of VAT that it has already paid or borne. Imported raw materials that are used for manufacturing export products and are deposited in bonded warehouses are exempt from import VAT.

 

Under the EIT Law, enterprises organized under the laws of jurisdictions outside China with “de facto management bodies” located within China may be considered PRC resident enterprises and therefore subject to a 25% PRC EIT on their worldwide income. The implementing rules define “de facto management body” as the management body that exercises full and substantial control and overall management over the business, productions, personnel, accounts and properties of an enterprise. In addition, SAT Circular 82 provides that a foreign enterprise controlled by a PRC company or a PRC company group will be classified as a “resident enterprise” with its “de facto management bodies” located within China if the following requirements are satisfied: (i) the senior management and core management departments in charge of its daily operations function mainly in the PRC; (ii) its financial and human resource decisions are subject to determination or approval by persons or bodies in the PRC; (iii) its major assets, accounting books, company seals, and minutes and files of its board and shareholders’ meetings are located or kept in the PRC; and (iv) more than half of the enterprise’s directors or senior management with voting rights reside in the PRC. On July 27, 2011, the SAT issued the Bulletin 45, which became effective on September 1, 2011, to provide further guidance on the implementation of SAT Circular 82. Bulletin 45 further prescribes the rules concerning the recognition, administration and taxation of an enterprise incorporated offshore and “controlled by a PRC enterprise or PRC enterprise group.” Bulletin 45 provides two ways for determining whether a foreign enterprise “controlled by a PRC enterprise or a PRC enterprise group” should be treated as a resident enterprise. First, the offshore enterprise may decide on its own whether its de facto management body is located in China based on the criteria set forth in Circular 82, and, if it makes such determination, it must apply to the competent tax bureau to be treated as a resident enterprise. Second, the tax authority may, after investigating, determine that the offshore enterprise is a resident enterprise.

 

Although the SAT Circular 82 only applies to offshore enterprises controlled by PRC enterprises and not those controlled by PRC individuals, foreigners or foreign enterprises, the determining criteria set forth in the Identification Circular may reflect the SAT’s general position on how the “de facto management body” test should be applied in determining the tax resident status of offshore enterprises, regardless of whether they are controlled by PRC or foreign enterprises or individuals.

 

Under the IITL, which was adopted and promulgated at the third meeting of the Standing Committee of the fifth People’s Congress on September 10, 1980 and amended on October 31, 1993, August 30, 1999, October 27, 2005, June 29, December 29, 2007 and June 30, 2011, if we are treated as a PRC resident enterprise, it is possible that non-resident individual investors of our shares or ADSs be subject to PRC individual income tax at a rate of 20% on dividends paid to such investors and any capital gains realized from the transfer of our ordinary shares or ADSs if such dividends or capital gains are deemed income derived from sources within the PRC, except in the case of individuals that qualify for a lower rate under a tax treaty. Under the PRC-U.S. tax treaty, a 10% preferential rate of withholding tax will apply to dividends provided that the recipients are U.S. tax residents that are eligible for the benefits of the PRC-U.S. tax treaty. A non-resident individual is an individual who has no domicile in the PRC and does not stay within the PRC or has stayed within the PRC for less than one year. Pursuant to the IITL and its implementation rules, for purposes of the PRC capital gains tax, the taxable income will be based on the total income obtained from the transfer of our ordinary shares or ADSs minus all the costs and expenses that are permitted under PRC tax laws to be deducted from the income.

 

Pursuant to SAT Circular 7, issued by the SAT on February 3, 2015, if a non-PRC resident enterprise indirectly transfers so-called PRC Taxable Properties, referring to properties of an establishment or a place of business in China, real estate properties in China and equity investments in a PRC tax resident enterprise, by disposition of the equity interests in an overseas non-public holding company without a reasonable commercial purpose and resulting in the avoidance of PRC EIT, the transfer will be re-characterized as a direct transfer of the PRC Taxable Properties and gains derived from the transfer may be subject to a PRC withholding tax of up to 10%. SAT Circular 7 has listed several factors to be taken into consideration by the tax authorities in determining if an indirect transfer has a reasonable commercial purpose. However, despite these factors, an indirect transfer satisfying all the following criteria will be deemed to lack reasonable commercial purpose and be taxable under the PRC laws: (i) 75% or more of the equity value of the intermediary enterprise being transferred is derived directly or indirectly from PRC Taxable Properties; (ii) at any time during the one year period before the indirect transfer, 90% or more of the asset value of the intermediary enterprise (excluding cash) is comprised directly or indirectly of investments in the PRC, or 90% or more of its income is derived directly or indirectly from the PRC; (iii) the functions performed and risks assumed by the intermediary enterprise and any of its subsidiaries that directly or indirectly hold the PRC Taxable Properties are limited and are insufficient to prove their economic substance; and (iv) the foreign tax payable on the gain derived from the indirect transfer of the PRC Taxable Properties is lower than the potential Chinese tax on the direct transfer of those assets. Nevertheless, the indirect transfers falling into the scope of the safe harbor under SAT Circular 7 may not be subject to PRC tax. The safe harbor includes qualified group restructurings, public market trades and exemptions under tax treaties.

 

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Foreign Currency Exchange

 

Pursuant to the Foreign Currency Administration Rules promulgated in 1996 and amended in 1997 and 2008 and various regulations issued by SAFE, and other relevant PRC government authorities, the Renminbi is freely convertible only to the extent of current account items, such as trade-related receipts and payments, interests and dividends. An enterprise can choose to either keep or sell its foreign exchange income under the current account to financial institutions authorized to engage in foreign exchange settlement or sales business. Capital account items, such as direct equity investments, loans and repatriation of investment, require the prior approval from SAFE or its local counterpart for conversion of Renminbi into a foreign currency, such as U.S. dollars, and remittance of the foreign currency outside the PRC.

 

Payments for transactions that take place within the PRC must be made in Renminbi. Absent circumstances specified under Chinese laws and regulations, upon approvals from SAFE, an enterprise can choose to either keep or sell its foreign exchange income under capital account to financial institutions authorized to engage in foreign exchange settlement and sales business. On the other hand, foreign-invested enterprises may retain foreign exchange in accounts with designated foreign exchange banks, subject to a cap set by SAFE or its local counterpart.

 

On August 29, 2008, SAFE promulgated Circular 142, a notice regulating the conversion by a foreign-invested company of foreign currency into Renminbi by restricting how the converted Renminbi may be used. Pursuant to Circular 142, the RMB fund from the settlement of foreign currency capital of a foreign-invested enterprise must be used within the business scope as approved by the examination and approval department of the government, and cannot be used for domestic equity investment unless it is otherwise provided for. Documents certifying the purposes of the RMB fund from the settlement of foreign currency capital, including a business contract, must also be submitted for the settlement of the foreign currency. In addition, SAFE strengthened its oversight of the flow and use of the RMB capital converted from foreign currency registered capital of a foreign-invested company. The use of such RMB capital may not be altered without SAFE’s approval, and such RMB capital may not in any case be used to repay RMB loans if the proceeds of such loans have not been used. Violations of the Circular 142 could result in severe monetary fines or penalties. Furthermore, on November 9, 2010 the SAFE promulgated a notice on relevant issues concerning strengthening the administration of foreign exchange business, which requires the authenticity of settlement of net proceeds from an offshore offering to be closely examined and the net proceeds to be settled in the manner described in the offering documents.  In order to further reform the foreign exchange administration system, SAFE issued Circular 19, which took effect from June 1, 2015 and replaced the SAFE Circular 142.  Circular 19 allows foreign invested enterprises to settle their foreign exchange capital on a discretionary basis according to the actual needs of their business operations and provides procedures by which a foreign-invested company may convert and use equity investments made in foreign currencies.  Circular 19 also reiterates, however, the principle that Renminbi converted from the foreign currency-denominated capital of a foreign-invested company may not be used, either directly or indirectly, for purposes beyond its business scope.  Thus, it is unclear whether SAFE will permit such capital to be used for equity investments in the PRC in practice.

 

Foreign Exchange in Certain Onshore and Offshore Transactions

 

In October 2005, SAFE promulgated a regulation known as SAFE Circular 75 that states that if PRC residents use assets or equity interests in their PRC entities as capital contributions to establish offshore companies or inject assets or equity interests of their PRC entities into offshore companies to raise capital overseas, they must register with local SAFE branches with respect to their overseas investments in offshore companies.

 

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On July 4, 2014, SAFE promulgated SAFE Circular 37, which replaced the SAFE Circular 75. SAFE Circular 37 requires PRC residents to register with local branches of SAFE in connection with their direct establishment or indirect control of an offshore entity, for the purpose of overseas investment and financing, with such PRC residents’ legally owned assets or equity interests in domestic enterprises or offshore assets or interests, referred to in SAFE Circular 37 as a “special purpose vehicle”. The term “control” under SAFE Circular 37 is broadly defined as the operation rights, beneficiary rights or decision-making rights acquired by the PRC residents in the offshore special purpose vehicles or PRC companies by such means as acquisition, trust, proxy, voting rights, repurchase, convertible bonds or other arrangements. SAFE Circular 37 further requires amendment to the registration in the event of any significant changes with respect to the special purpose vehicle, such as increase or decrease of capital contributed by PRC individuals, share transfer or exchange, merger, division or other material event. In the event that a PRC shareholder holding interests in a special purpose vehicle fails to fulfill the required SAFE registration, the PRC subsidiaries of that special purpose vehicle may be prohibited from distributing profits to the offshore parent and from carrying out subsequent cross-border foreign exchange activities, and the special purpose vehicle may be restricted in its ability to contribute additional capital into its PRC subsidiary. Moreover, failure to comply with the various SAFE registration requirements described above could result in liability under PRC law for evasion of foreign exchange controls.

 

While we believe our shareholders who have confirmed to us that they are PRC residents have taken actions available to them to comply with SAFE Circular 75 and they are still in the process of updating their SAFE registration to reflect the recent changes to our group structure, we have urged relevant shareholders and beneficial owners to make the necessary applications, filings and amendments as required under SAFE Circular 37 and other related rules. We cannot assure you that our current shareholders and/or beneficial owners or their shareholders or beneficial owners can successfully comply with registration requirements under SAFE Circular 37 and subsequent implementation rules in a timely fashion or at all. Any future failure by any of our shareholders who is a PRC resident, or controlled by a PRC resident, to comply with relevant requirements under these regulations could subject our company to fines or sanctions imposed by the PRC government, including restrictions on our PRC subsidiaries’ ability to pay dividends or make distributions to us and our ability to increase our investment in or to provide loans to such PRC subsidiaries.

 

On December 25, 2006, the People’s Bank of China promulgated the “Measures for Administration of Individual Foreign Exchange.” On January 5, 2007, the SAFE promulgated the Implementation Rules of Measures for Administration of Individual Foreign Exchange. On February 15, 2012, the SAFE promulgated the Notice on Issues concerning the Foreign Exchange Administration of Domestic Individuals’ Participation in Equity Incentive Plans of Overseas Listed Companies. According to the Individual Foreign Exchange Rules, PRC citizens who are granted shares or share options by a company listed on an overseas stock market according to its employee share option or share incentive plan are required to register with the SAFE or its local counterparts.

 

Dividend Distribution

 

The principal regulations governing distribution of dividends of wholly foreign-owned enterprises include the Wholly Foreign-owned Enterprise Law (1986), as amended by the Decision on Amending the Law of the People’s Republic of China on Wholly Foreign-owned Enterprise (2000), and the Implementing Rules of the Wholly Foreign-owned Enterprise Law (1990), as amended by the Decision of the State Council on Amending the Implementing Rules of the Law of the People’s Republic of China on Wholly Foreign-owned Enterprise (2001).

 

Under these regulations, foreign invested enterprises in China may pay dividends only out of their accumulated profits, if any, determined in accordance with Chinese accounting standards and regulations. In addition, wholly foreign-owned enterprises in China are required to set aside at least 10% of their respective after-tax profits based on PRC accounting standards each year, if any, to fund its general reserves fund, until the accumulative amount of such reserves reaches 50% of its registered capital. These reserves are not distributable as cash dividends. Wholly foreign-owned enterprises are also required to allocate a portion of its after-tax profits, as determined by its board of directors, to its staff welfare and bonus funds, which may not be distributed to equity owners. As of December 31, 2015, the restricted portion of our PRC subsidiaries’ net assets was $1,203.5 million, which consists of their registered capital and statutory reserves.

 

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Mergers and Acquisitions

 

On August 8, 2006, six PRC regulatory agencies, including the CSRC, promulgated the M&A Rules which became effective on September 8, 2006 and was amended on June 22, 2009. The M&A Rules, among other things, require offshore special purpose vehicles, formed for overseas listing purposes through acquisitions of PRC domestic companies and controlled by PRC enterprises or individuals, to obtain the approval of the CSRC prior to publicly listing their securities on an overseas stock exchange. On September 21, 2006, the CSRC published a notice specifying the documents and materials that are required to be submitted for obtaining CSRC approval. Based on the advice we received from Fangda Partners, our PRC counsel, we did not seek the CSRC approval in connection with our initial public offering as we believed that this regulation did not apply to us and that CSRC approval was not required because (1) Trina was not a special purpose vehicle formed for the purpose of acquiring a PRC domestic company because Trina China was a foreign-invested enterprise before it was acquired by Trina, and, accordingly, Trina China did not fall within the definition of a PRC domestic company as set forth in the M&A Rules; and (2) such acquisition was completed before the M&A Rules became effective. Uncertainty still exists as to how the M&A Rules will be interpreted and implemented, and the opinion of our PRC counsel is subject to any new laws, regulations, rules and their detailed implementations in the future in any form relating to the M&A Rules.

 

The regulations also established additional procedures and requirements that could make merger and acquisition activities by foreign investors more time-consuming and complex, including requirements in some instances that MOFCOM be notified in advance of any change-of-control transaction in which a foreign investor takes control of a PRC domestic enterprise.

 

In February 2011, the State Council promulgated Circular No. 6, a notice on the establishment of the security review system for mergers and acquisitions of domestic enterprises by foreign investors, which became effective on March 3, 2011. To implement Circular No. 6, the MOFCOM promulgated the MOFCOM Security Review Rules on August 25, 2011 which became effective on September 1, 2011. According to Circular No. 6 and the MOFCOM Security Review Rules, a national security review is required for certain mergers and acquisitions by foreign investors of enterprises relating to national defense and certain mergers and acquisitions by which foreign investors may acquire de facto control of domestic enterprises raising national security concerns. When deciding whether a specific merger or acquisition of a domestic enterprise by foreign investors is subject to the national security review, the MOFCOM will review the substance and actual impact of the transaction and the foreign investors are prohibited from bypassing the national security review requirement by structuring transactions through proxies, trusts, indirect investments, leases, loans, control through contractual arrangements or offshore transactions. In addition, if a merger or acquisition by foreign investors which was not submitted for national security review, or was determined to have no impact on national security after such review, but thereafter, due to changed elements, including modification of the merger, change of business activities or acquisition transaction or amendment of the relevant agreements or documents and other changes, involves an enterprise relating to national defense or a change of de facto control of a domestic enterprise raising national security concerns such that it becomes subject to national security review, the foreign investor to such merger or acquisition will be required to file an application for national security review with the MOFCOM.

 

C.                                    Organizational Structure

 

The following table sets out the details of our significant subsidiaries as of December 31, 2015.

 

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Name of Entity

 

Country of Incorporation

 

Ownership
Interest

Changzhou Trina Solar Energy Co., Ltd.

 

China

 

100%

Trina Solar (Singapore) Pte. Ltd.

 

Singapore

 

100%

Trina Solar (Luxembourg) Holdings S.A.R.L.

 

Luxembourg

 

100%

Trina Solar (U.S.) Inc.

 

United States

 

100%

Trina Solar (U.S.) Holding Inc.

 

United States

 

100%

Trina Solar (Germany) GmbH

 

Germany

 

100%

Trina Solar (Schweiz) AG

 

Switzerland

 

100%

Trina Solar (Luxembourg) S.A.R.L.

 

Luxembourg

 

100%

Trina Solar (Spain) S.L.U.

 

Spain

 

100%

Trina Solar (Italy) S.r.l.

 

Italy

 

100%

Trina Solar (Japan) Limited

 

Japan

 

100%

Trina Solar Energy Development Pte. Ltd.

 

Singapore

 

100%

Trina Solar (Changzhou) Science and Technology Co., Ltd.

 

China

 

100%

Trina Solar Energy (Shanghai) Co., Ltd.

 

China

 

100%

Trina Solar (U.S.) Development LLC

 

United States

 

100%

Trina Solar (Australia) Pty Ltd.

 

Australia

 

100%

Trina Solar Middle East Limited

 

United Arab Emirates

 

100%

Lucania S.r.l.

 

Italy

 

100%

Yancheng Trina Solar Science & Technology Co., Ltd.

 

China

 

100%

Changzhou Trina Solar PV Power System Co., Ltd.

 

China

 

100%

Jiangsu Trina Solar Electric Power Development Co., Ltd.

 

China

 

100%

Wuwei Trina Solar Electricity Generation Co., Ltd.

 

China

 

100%

Trina Solar (United Kingdom) Limited

 

United Kingdom

 

100%

Trina Solar (Canada) Inc.

 

Canada

 

100%

Hunan Trina Solar Electric Power Development Co., Ltd.

 

China

 

95%

Trina Solar (Luxembourg) Overseas Systems S.à r.I.

 

Luxembourg

 

100%

Tanagra Solar Energy S.A

 

Greece

 

100%

S. Aether Energy S.A.

 

Greece

 

100%

Lightleasing PTY LTD

 

Australia

 

100%

Trina Solar (Luxembourg) EU Systems S.à r.l.

 

Luxembourg

 

100%

Witherington Solar Farm Limited

 

United Kingdom

 

100%

TSF Constructions Limited

 

United Kingdom

 

100%

Turpan Trina Solar Energy Co., Ltd.

 

China

 

100%

Yunnan Matallurgical New Energy Co., Ltd.

 

China

 

90%

Hubei Trina Solar Energy Co., Ltd.

 

China

 

51%

Xiangshui Hengneng Electricity Generation Co., Ltd.

 

China

 

100%

Yongneng Trina Solar Electricity Generation Co., Ltd.

 

China

 

100%

Tuokexun Trina Solar Co., Ltd.

 

China

 

100%

Changzhou Trina Solar Yabang Energy Co., Ltd.

 

China

 

51%

Trina Solar Science & Technology (Thailand) Ltd.

 

Thailand

 

100%

Jiangsu Trina Solar Electric Power Development Holdings Ltd.

 

China

 

100%

Trina Solar New Energy Investment Co., Ltd.

 

China

 

100%

Trina Solar (Singapore) Science & Technology Pte. Ltd

 

Singapore

 

100%

Trina Solar (India) Private Limited

 

India

 

100%

 

D.                                    Property, Plants and Equipment

 

Manufacturing Segment

 

As of December 31, 2015, substantially all of our research, development and manufacturing of ingots, wafers, cells and PV modules are conducted at our facilities in Changzhou, Yancheng, Turpan and Xiantao China.  Our main campus is located in Changzhou, where we occupy an area of 545,248 square meters and further own the rights to develop and use an additional 297,696 square meters.  In Yancheng, we occupy an area of 53,333 square meters which we use for module production.  In Turpan, we occupy an area of 66,667 square meters which we use for the module production.  In Xiantao, we occupy an area of 174,920 square meters which we use for cell production. We plan to build or acquire new facilities to increase our annualized in-house manufacturing capacity of cells and modules from 3,500 MW and 5,000 MW, respectively, as of December 31, 2015 to 5,000 MW and 6,000 MW, respectively, as of December 31, 2016.  We plan to incur capital expenditures of up to $250 million to accomplish our 2016 expansion plans in our manufacturing segment. See “—B. Business Overview—Products and Projects—Manufacturing Segment” for more details. We believe our current and planned facilities will meet our current and foreseeable requirements.

 

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We selectively use automation to enhance the quality and consistency of our finished products and improve efficiency in our manufacturing processes. We use manufacturing equipment purchased primarily from solar equipment suppliers in Europe, North America and Asia, including China and Japan. Other critical equipment is also sourced worldwide. Key operating equipment used in our manufacturing facilities includes DSS furnaces, high-precision wafer sawing machines, diffusion furnaces (sets), screen print machine sets and automatic laminators. Set forth below is a list of our major equipment as of December 31, 2015:

 

Manufacturing Facility

 

Major Equipment

 

No. of Units in
Operation as of
December 31, 2015

 

Source (Country)

 

Silicon ingots

 

DSS furnaces

 

187

 

China, United States

 

Silicon wafers

 

Wafer sawing machines

 

179

 

Japan, Switzerland

 

Solar cells

 

Diffusion furnaces (sets)

 

76

 

China, Germany, the Netherlands

 

 

 

Screen print machine sets

 

79

 

Italy, China

 

PV modules

 

Automatic laminators

 

159

 

China

 

 

With respect to encumbrances, as of December 31, 2015, we pledged our plant and machinery of a total carrying value of $478.9 million and our land use rights of a total carrying value of $15.6 million to secure our borrowings of $516.5 million.

 

Solar Power Projects Segment

 

As of December 31, 2015, our project assets consisted of $531.3 million of build-to-sell project assets and $807.9 million of build-to-own project assets. In addition, our build-to-own project assets consisted of $681.1 million of completed build-to-own solar power projects and $126.8 million of build-to-own solar power projects under construction and our build-to-sell project assets consisted of $205.9 million of completed build-to-sell solar power projects and $325.4 million of build-to-sell solar power projects under construction.

 

With respect to encumbrances, as of December 31, 2015, we pledged build-to-own project assets with a total carrying amount of $196.8 million to secure our borrowings of $297.8 million

 

For a discussion of our capital expenditures targeted for our capacity expansion, see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Capital Expenditures.”

 

Item 4A.                                                UNRESOLVED STAFF COMMENTS

 

None.

 

Item 5.                                                         OPERATING AND FINANCIAL REVIEW AND PROSPECTS

 

The following discussion of our financial condition and results of operations is based upon and should be read in conjunction with our consolidated financial statements and their related notes included in this annual report. This report contains forward-looking statements. See “—G. Safe Harbor.” In evaluating our business, you should carefully consider the information provided under the caption “Item 3. Key Information—D. Risk Factors” in this annual report. We caution you that our businesses and financial performance are subject to substantial risks and uncertainties.

 

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A.                                    Operating Results

 

Overview

 

We are a large-scale integrated solar power products manufacturer and solar system developer based in China with a global distribution network covering Europe, Asia, North America, Australia and Africa. Since we began our solar power products business in 2004, we have integrated the manufacturing of ingots, wafers and solar cells for use in our PV module production. Our PV modules provide reliable and environmentally-friendly electric power for residential, commercial, industrial and other applications worldwide. We also develop, design, construct, operate and sell solar power projects that primarily use the solar modules we manufacture. Beginning in 2014, we have two reportable operating segments consisting of the manufacturing segment and the solar power projects segment.

 

We produce standard monocrystalline PV modules ranging from between 215 watts, or W, and 230 W to between 275 W and 295 W in power output for 60 cell and between 325 W and 350 W for 72 cell and multicrystalline PV modules ranging from between 260 W and 270 W to between 305 W to 320 W in power output. We build our PV modules to general specifications, as well as to our customers’ and end-users’ specifications. We sell and market our products worldwide, including China and the United States, where government incentives have accelerated the adoption of solar power. In recent years, we have also increased our sales in newer and emerging solar power markets, which include the United Kingdom and India, as well as other markets in Asia, Africa, the Middle East, Latin America, and the Caribbean Islands. We have established regional headquarters and offices located in Europe, North America and Asia to target sales and distribution in those markets. We primarily sell our products to wholesalers, power plant developers and operators and PV system integrators, including NVT, LLC dba SunEdison, Sanshin Electronics Co., Ltd., Solar City, SunEnergy1, FLS Energy, Welspun Energy Private Limited, Vivint Sloar Developer, LLC, Bluefield SIF Investments Limited, Consolidated Edison Development, TBEA Xinjiang Sunoasis Co., Ltd.

 

We have expanded into the downstream solar power projects market. In 2015, we completed and connected 425.0 MW of build-to-own projects in China, completed and connected 210.9 MW of build-to-sell projects in China, and completed and sold 50.0 MW of build-to-sell projects in Europe. We anticipate completing between 750 MW and 850 MW of projects during 2016, including significant projects in China and globally. Our integrated manufacturing model and experience as a provider of high quality solar solutions have allowed us to successfully grow our solar power projects business and develop a strong solar project pipeline to support future expansion.   In 2015, our net sales were $3,035.5 million, compared to $2,286.1 million in 2014 and $1,775.0 million in 2013.  We recorded a net income of $86.3 million in 2015, compared to a net income of $61.3 million in 2014 and a net loss of $72.2 million in 2013.

 

Factors Affecting Our Results of Operations

 

Beginning in 2014, we have two reportable operating segments consisting of the manufacturing segment and the solar power projects segment. Significant factors affecting the financial performance and results of operations of these two operating segments are as follows:

 

Manufacturing Segment

 

The most significant factors that affect the financial performance and results of operations of our manufacturing segment are:

 

·                                          industry demand;

 

·                                          government economic incentives and trade sanctions;

 

·                                          product pricing;

 

·                                          flexible vertically integrated manufacturing capabilities; and

 

·                                          availability and prices of polysilicon.

 

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Industry Demand

 

Solar energy generation systems use interconnected solar cells to generate electricity from sunlight through a process known as the photovoltaic effect.  Although solar power technology has been used for several decades, the global solar power market has grown significantly only in the past several years. The global solar power market continues to develop, in part aided by declining industry average selling prices, making solar power more affordable to users.

 

According to GTM Research, global PV end-market demand was estimated to grow 33% on a year-on-year basis to 54.6 GW in 2015 compared to 40.9 GW in 2014. This growth was driven mostly by the staggering growth in China and India. According to GTM Research, the market will keep growing at 21% to 66 GW in 2016 and experience slower growth of 4% to 68.7 GW in 2017. The market will resume a faster growth pace in 2018 onwards to reach 82.9 GW by 2019. The near-term growth is driven by a number of national policies benefiting the solar industry. For instance, in China, the National Energy Administration has started to develop its 13th five-year (2016-2020) plan, with plans of a 2020 target of 150 GW to 200 GW. In mid-December 2015, the United States legislators approved a major overhaul to the Investment Tax Credit policy, resulting in a five-year extension of the 30% tax credit (previously to reduce to 10% on January 1, 2017). This change in policy will boost the utility segment in the United States for years to come. India accelerated tender processes and set up other measures to speed up PV deployment in order to achieve the 100 GW target announced at the end of 2014. China remains the global leader of PV installations. As the target was raised, China installations are estimated to have taken a 73% leap in 2015 to approach 18.3 GW. Demand will then grow moderately to 20.5 GW by 2020. Japan peaked at 11.6 GW in 2015, as projects under previous FIT rates continued to be completed. Grid constraints and reduced FIT rates are expected to result in a projected 12% decline in demand in 2016, pending on-going regulatory discussions. India’s ambitious policy support on both the national and state levels raises the outlook. Based on announced construction activity and planned pipelines, GTM Research forecasts India demand to grow 150% in 2015 and to more than double again in 2016.

 

The demand for solar power is also influenced by macroeconomic factors such as global economic conditions, the supply and prices of other energy products, such as oil, coal and natural gas, as well as government regulations and policies concerning the electric utility industry. A decrease in oil prices, for example, may reduce demand for investment in alternative energy.  Please see “Item 3. Key Information—D. Risk Factors” for discussions of the risks related to declining industry demand for solar power products.

 

Government Economic Incentives and Trade Sanctions

 

We believe that the near-term growth of the market for on-grid applications depends in large part on the availability and size of government economic incentives. Today, when upfront system costs are factored in, the per kilowatt cost of solar power substantially exceeds that of power provided by the electric utility grid in many locations. As a result, national and local governmental bodies in many of our primary-targeted markets, notably, China, the United Kingdom, the United States, Japan, Germany, Italy, and other countries in Europe, Australia, India, and several Middle Eastern and African countries, have provided economic incentives in the form of capital cost rebates, feed-in tariffs, tax credits and other incentives to end users, distributors, system integrators and manufacturers of solar power products. Accordingly, demand for PV modules in our targeted or potential markets is affected significantly by government economic incentives. According to GTM Research, the three largest PV markets in 2015 were China, Japan and the United States, and these top three markets accounted for 34%, 21% and 13%, respectively, of the global market and collectively accounted for 68% of the global market.

 

We seek to counteract the impact of the expiring incentives and anti-dumping and anti-subsidy actions taken by existing major solar markets through enhancing our brand recognition and shifting some of our sales focus to newer and emerging solar power markets, which include the United Kingdom and India, as well as other markets in Asia, Africa, the Middle East, Latin America and the Caribbean Islands. To enhance our global sales capabilities, we established regional headquarters in San Jose, Zurich, Tokyo and Singapore, as well as sales and business development offices in Madrid, Beijing, Shanghai, Munich, Abu Dhabi, Sydney, Chengdu, Urumqi, Santiago and New Dehli.

 

On December 5, 2013, the Council of the European Union announced its final decision imposing anti-dumping and anti-subsidy duties on imports of CSPV cells and modules originating in or consigned from China. Both anti-dumping and anti-subsidy duties, are applicable for a period of two years beginning on December 6, 2013 to imports from Chinese solar panel exporters who, like us, cooperated with the European Commission’s investigations.  However, on the same day, the European Commission accepted a price undertaking by Chinese export producers in connection with the anti-dumping and anti-subsidy proceedings. As a result, imports from Chinese solar panel exporters that are made pursuant to the price undertaking are exempt from the final anti-dumping and anti-subsidy duties imposed by the European Union. We agreed to comply with the minimum price and other conditions set forth in the undertaking so that our exported products were exempt from the anti-dumping and anti-subsidy duties imposed by the European Commission, though effective from December 11, 2015, we have withdrawn from the price undertaking and started to supply the European Union markets through our tariff-free overseas manufacturing facilities.  During the time that we were subject to the undertaking, including nearly all of 2015,  the average selling price of our PV solar products in the European markets, as well as the products of the other Chinese solar panel exporters that entered into the undertaking, were higher than those that were not subject to the undertaking.

 

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On December 17, 2014, the Commerce, issued final rulings that imports of certain CSPV products were dumped in the United States from China and Taiwan and that imports of certain CSPV products from China received subsidies. Under these rulings, we received an anti-dumping duty of 26.71% and a countervailing duty of 49.79%. On January 21, 2015, the Commission affirmed that imports of certain CSPV cells and modules from mainland China and Taiwan materially injure the domestic industry. The Commission completed and filed its determinations in these investigations on February 5, 2015.  The actual duty rates at which entries of covered merchandise will be finally assessed may differ from the announced deposit rates, because they will be subject to completion of administrative reviews of these anti-dumping and countervailing duty orders.  In February 2016, we filed requests for review of the anti-dumping and countervailing orders on our exports of Chinese modules possessing non-Chinese CSPV cells. We expect the first administrative reviews to be completed around the third quarter of 2017. For additional information, see “Item 3. Key Information— D. Risk Factors—Risks Related to Our Company and Our Industry—The determination by U.S. and European Union authorities that our export sales are in violation of international fair trade rules could impede our access to important export markets and our overall competitiveness.”

 

According to GTM Research, global PV module spot prices declined by 8% on a year-over-year basis in 2015, which decline was smaller compared to previous years.  We believe reduced FITs and low PPA prices will force customers to concentrate more on quality and price, which will be to our advantage given our favorable rankings by third party sources, such as TÜV Reinland, a global independent safety and quality testing agency for PV modules, and DNV-GL, a U.S.-based testing lab specializing in long-term reliability testing.

 

Product Pricing

 

Our PV modules are priced based on the number of watts of electricity they generate as well as the market price per watt for PV modules. We price our standard PV modules based on the prevailing market prices at the time we enter into sales contracts with our customers or when our customers place their purchase orders with us, taking into account the size of the contract or the purchase order, the strength and history of our relationship with each customer, and our silicon-based raw materials costs. In the last several years, the average selling price of our PV modules declined as a result of market trends and conditions.  See “—Industry Demand” for more information. The industry average selling price of PV modules decreased from $0.71 per watt in the fourth quarter of 2013 to $0.63 per watt in the fourth quarter of 2014, and further to $0.59 per watt in the fourth quarter of 2015. We believe industry module average selling prices have begun to show signs of stabilization in several markets after a long period of significant decline across multiple markets. However, we continue to face intense competition from manufacturers of PV modules and other types of solar modules. We plan to mitigate the effects of decreased average selling prices by continuing to lower our silicon and non-silicon processing and supply chain costs, improve our inventory management control and increase sales of high-efficiency and other premium products for which we are able to charge higher prices. Further, we withdrew from the price undertaking in the European Union markets on December 11, 2015. Before the withdrawal, in European Union markets we were restricted from selling our products at prices below those agreed to in the price undertaking, making our products less competitive than those not subject to price restrictions.

 

We conduct our PV module sales typically through short-term and medium-term contracts with terms of one year or less or, to a lesser extent, long-term sales or framework agreements with terms of generally one to two years. Our short-term and medium-term contracts provide for an agreed sales volume at a fixed price. Our long-term sales or framework agreements provide for a fixed sales volume or a fixed range of sales volume to be determined generally two to three quarters before the scheduled shipment date. Prices for long-term sales or framework agreements are generally determined one month prior to the start of the quarter of the scheduled shipment date. Compared to short-term and medium-term contracts, we believe our long-term sales or framework agreements not only provide us with better visibility into future revenues, but also help us enhance our relationships with our customers. Our contracts with customers stipulate different post-delivery payment schedules based on the credit worthiness of the customer. We enhanced our credit control policy in 2015 and our accounts receivable turnover days were approximately 78 days in 2015, compared to 99 days in 2014. We have reviewed the credit limits applicable to our customers to reduce our credit exposure. More than 90% of our overseas credit sales are insured against non-payment by our customers. The amount of credit line insurance coverage for each transaction is based on a rating assigned by the insurer to the customer, based on that customer’s credit history.

 

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Flexible Vertically Integrated Manufacturing Capabilities

 

We believe that our flexible vertical integration strategy has allowed us, and will continue to allow us, to capture value throughout the solar power product value chain. Our flexible vertically integrated business model enables us to:

 

·                                          achieve better quality control of our products;

 

·                                          shorten production cycle and improve value chain coordination;

 

·                                          discontinue excess reliance on toll manufacturing;

 

·                                          capture upstream or downstream profit margins; and

 

·                                          adjust our capacity expansion plan by outsourcing certain products from third parties when we can obtain good prices.

 

In addition, we have developed relationships with various domestic and international suppliers of wafers and cells. In 2010, we began sourcing wafers from our suppliers and strategic partners in order to fill the gap between our PV cell and ingot and wafer manufacturing capacity and to achieve import cost advantages to certain markets.

 

Availability and Prices of Polysilicon

 

Polysilicon is an essential raw material for our business. We purchase polysilicon from our network of over ten suppliers. We have entered into long-term contracts with our principal suppliers of polysilicon, including several leading domestic and international producers, to secure favorable pricing for the majority of our raw material costs through long-term supply agreements.

 

In the past, increases in the price of polysilicon have increased our cost of sales and impacted our margins.  In addition, polysilicon production capacity has expanded rapidly in recent years, which led to an oversupply of high-purity silicon in 2009 and, together with the global economic downturn, a decrease in polysilicon prices. These factors contributed to an oversupply of solar wafers, cells and modules, resulting in substantial downward pressure on prices throughout the value chain in 2011, which continued until the second half of 2013.  According to PVinsights, as demand increased during 2013, polysilicon spot prices began to stabilize and during the second half of 2013 through the first half of 2014 spot prices increased. Polysilicon prices again fell during 2015, decreasing 28.6% by the end of 2015 compared to the beginning of the year. In March 2016, polysilicon prices increased to an average of $15.50 per kilogram due to production reduction by certain manufacturers outside China as a result of China’s anti-dumping and countervailing duties. According to PVinsights, annual polysilicon supply is forecasted to grow to 101 GW in 2016, compared with 95.18 GW in 2015, an increase of 6.7%, and prices are expected to stabilize during 2016. Further, the gap between average spot prices and contract prices for polysilicon used in PV applications has narrowed considerably beginning in 2014 as long-term contracts previously entered into expired, were renegotiated to be priced by referencing to the prevailing market price, or were cancelled.

 

We purchase polysilicon primarily from silicon manufacturers by contract. For procurement of polysilicon, we enter into short-term, medium-term and long-term contracts. Our short-term contracts have terms of no more than one year each and provide for a variable price and fixed quantity and generally require prepayment prior to shipment. Most of the contracts give us the right to reject any shipment by our suppliers that does not meet our quality standards based on grade levels, such as semiconductor grade or solar grade, of the polysilicon. The contracts also specify a time period during which we can inspect the goods to ensure their quality. Our medium-term contracts have terms ranging from one to four years, and our long-term contracts have terms ranging from five to ten years. Our medium-term and long-term suppliers include Jiangsu Zhongneng and GCL (Changzhou), among others. These medium-term and long-term contracts have delivery terms up to 2020 and variable prices. Generally we negotiate purchase quantities annually. These contracts also require us to make an advance payment of a certain negotiated amount.

 

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Suppliers of polysilicon typically require customers to make payments in advance of shipment. Some of our long-term suppliers require us to make a prepayment at a certain percentage of the order value prior to shipping. Due to the availability of polysilicon, prepayment as a percentage of the entire contract has been reducing. Except for those medium and long-term contracts, we normally use letter of credit or notes payment as settlement term for polysilicon procurement.

 

Solar Power Projects Segment

 

The solar power projects segment has grown rapidly, representing 1.0%, 6.1% and 5.6% of our net sales in 2013, 2014 and 2015, respectively. We consider the solar power segment to be strategically important to us and expect it to continue to grow significantly in the next few years. We categorize our solar power projects into build-to-sell projects and build-to-operate projects.  The most significant factors that affect the financial performance and results of operations of our solar power projects segment are:

 

·                                          FIT regime and other government subsidies or incentives for solar power projects;

 

·                                          mix of our project portfolio;

 

·                                          access to project financing;

 

·                                          growth of our project portfolio through project acquisition or development;

 

·                                          sale of build-to-sell projects and operation and maintenance of build-to-own projects; and

 

·                                          EPC costs.

 

FIT regime and other government subsidies or incentives for solar power projects

 

Government incentives, including FIT regimes, government subsidies and other incentives for solar power projects, or government mandates requiring electric utility companies to use renewable energy to produce a certain percentage of their power, are a significant factor in determining whether our solar power projects will be profitable. These government incentives and mandates vary from country to country and change over time. For example, the Japanese government has introduced an attractive FIT price support regime to encourage developing solar power projects while Greece’s government has reduced its support for the solar power industry. With respect to our build-to-sell projects, FIT regimes, which determine the price that utilities will pay for power generated from our projects, as well as other government incentives, directly impact the price at which we are able to sell our completed projects. We develop and sell solar power projects in a number of countries and regions, including our strategic markets in Europe, China, United States and Japan.  With respect to our build-to-own projects, most of which are located in China, the FIT regime provided by the PRC government determines the price that the national grid companies must pay us for the power our projects generate, which directly affects our revenue and profitability.  In light of growing environmental concerns and the increasing demand for energy, the PRC government has set aggressive targets for solar power generation and has adopted favorable policies to support these targets.

 

Mix of our project portfolio

 

Our build-to-sell projects and build-to-own projects have different revenue models and different risk and return profiles. Build-to-sell projects generate revenue from the sale of projects while the build-to-own projects generate revenue by selling electricity to the grid companies.  We entered the solar power projects market in 2009, and in 2013, 2014 and 2015, we derived 70.7%, 96.3% and 53.6% of total net sales of the solar power projects segment from selling build-to-sell projects.  We are also developing a number of build-to-own projects, especially in China, and as we complete construction on new build-to-own projects the amount of net sales that they generate will continue to increase. As of December 31, 2015, our project portfolio included 210.9 MW of build-to-sell projects and 698.3 MW of build-to-own projects.  Our results of operations and profitability may also be affected by the geographical mix of our project portfolio, because the financial incentives provided by national and local governments vary significantly depending on the location of the solar power projects.

 

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Access to project financing

 

Currently, we target to finance about 70% to 75% of our solar power projects externally. For our build-to-sell projects, we would typically borrow short-term bridge loans or use the project purchaser’s financing during the project construction phase. For our build-to-own projects, in addition to short-term bridge loans during the project construction phase, we may also enter into long-term project loans to refinance the bridge loans after the completion of project construction.

 

Growth of our project portfolio through project acquisition or development

 

We expect our solar power projects segment to grow significantly.  This growth will depend on our ability to grow our current project portfolio quickly and successfully, either through project acquisition or in-house development.  Developing projects entirely in-house is generally more cost-effective while acquiring existing projects at various stages of development is generally quicker.  The asset quality of any newly acquired or developed projects will directly affect the financial performance of our entire project portfolio as a whole.

 

Sale of build-to-sell projects and operation and maintenance of build-to-own projects

 

We recognize revenue and profits from our build-to-sell projects when they are successfully sold as we do not have any form of continuing involvement of the project asset after it is sold. If we retain continuing involvement of the project asset and do not transfer all of the ownership to the buyer, we recognize gross profit under a method determined by the nature and extent of the continuing involvement. Under certain arrangements, we provide customers with guarantees of system performance for a limited period of time and our exposure to loss is contractually limited based on the terms of the arrangement. Under such circumstances, the gross profit recognized is reduced by our maximum exposure to loss until such time that such exposure no longer exists. Therefore, our ability to identify and engage credible purchasers timely and to negotiate a favorable purchase price and payment terms directly affects our profitability.  Our build-to-own projects generate revenue by generating and selling electricity to the grid companies.  In order to maximize financial returns, in China, we operate and maintain these projects by our own operation and maintenance team to ensure the uninterrupted generation of electricity and to prolong the usable life of solar modules and other equipment.  For overseas build-to-own projects, we engage third party suppliers to provide operation and maintenance service.

 

EPC costs

 

The EPC costs of build-to-sell projects are capitalized as project assets and constitute a primary portion of the cost of sales at the time of sale. The EPC costs of build-to-own projects are capitalized as property, plant and equipment, and depreciated over 20 to 25 years after the project begins operating, representing a primary portion of cost of sales when the generated electricity is sold to the grid companies.  EPC costs include the costs of design, procurement, construction and connection costs of solar power projects.  The most significant cost is the procurement cost, which primarily consists of costs of solar modules, inverters and mounting systems. We use solar modules that we produce in our solar power projects, which give us a competitive advantage in controlling EPC costs.  Our industry experience and connections have enabled us to purchase high quality inverters and other equipment at relatively competitive prices and payment terms.  Our engineering team is responsible for designing our solar power projects. However, we engage third-party contractors to construct our projects.  We control the construction costs of our projects through contractual terms with and diligent monitoring of contractors.

 

Overview of Financial Results

 

We evaluate our business using a variety of key financial measures.

 

Net Sales

 

Our net sales are net of business tax, VAT and returns and exchanges, as applicable.

 

The following table sets forth our total net sales by operating segments:

 

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Year Ended December 31,

 

 

 

2013

 

2014

 

2015

 

Segment

 

Total Net
Sales

 

Percent

 

Total Net
Sales

 

Percent

 

Total Net
Sales

 

Percent

 

 

 

(in thousands, except for percentages)

 

Manufacturing

 

$

1,796,331

 

101.2

%

$

2,402,964

 

105.1

%

$

3,389,366

 

111.6

%

Intersegment