20120113Supplemental Statement of Facts.pdf

JASON B. WILLIAMS
Corporate Counsel
iwilliamsCiidahopower.com
1SIDA~POR~
An 10ACORP Company
January 13,2012
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilties Commission
472 West Washington Street
Boise, Idaho 83702
Re: Case No. IPC-E-11-28
HOKU MATERIALS, INC., COMPLAINANT, \I IDAHO POWER COMPANY,
RESPONDENT
Dear Ms. Jewell:
Enclosed for filng please find an original and seven (7) copies of Idaho Power
Company's Supplemental Statement of Facts in the above matter.
Very truly yours, '"! /t?~2//l/,-,-" Jason B. Wiliams
"'
JBW:csb
Enclosures
1221 W. Idaho St. (83702)
P.O. Box 70
Boise, 10 83707
LISA D. NORDSTROM (ISB No. 5733)
JASON B. WILLIAMS (ISB No. 8718)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
Inordstromcæidahopower.com
jwilliams(Eidahopower.com
2012 i 3 PN 12: 57
Attorneys for Idaho Power Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
HOKU MATERIALS, INC.,
Complainant,
)
) CASE NO. IPC-E-11-28
)
) IDAHO POWER COMPANY'S
) SUPPLEMENTAL STATEMENT OF
) FACTS
)
)
)
v.
IDAHO POWER COMPANY,
Respondent.
COMES NOW, Respondent Idaho Power Company ("Idaho Powet' or
"Company"), by and through its undersigned counsel, and in response to Complainant
Hoku Materials, Inc.'s ("Hoku") Supplemental Statement of Facts submitted on January
13, 2012 ("Hoku Supplement"), hereby advises the Idaho Public Utilties Commission.
("Commission") of the following facts, which were unknown at the time of Oral Argument
held on January 11 , 2012 ("Oral Argument"), but which are relevant to the
Commission's consideration of this matter:
IDAHO POWER COMPANY'S SUPPLEMENTAL STATEMENT OF FACTS - 1
1. The Hoku Supplement asserts that it instructed its bank, The Industrial
and Commercial Bank of China, to wire transfer to Idaho Power an amount equal to
$1,896,656.261 as payment for Idaho Powets November 2011 invoice to Hoku. Idaho
Power received that wire transfer at approximately 12:00 p.m. Mountain Standard Time
on January 13, 2012.
2. As was presented in the Company's Answer, Motion to Dismiss, and
Motion to Set Termination Date ("Answer and Motion"), Hoku's November 2011 invoice
was due to Idaho Power no later than December 21, 2011. Since that due date, the
November 2011 invoice has accrued interest in the amount of $13,453.04 through
January 13, 2012, which is due and payable immediately. As this amount is considered
part of Hoku's November 2011 invoice, Hoku's November 2011 remains past due, and
Idaho Power intends to terminate service to Hoku if that amount is not immediately paid,
unless otherwise ordered by the Commission.
3. As was presented in Idaho Powets Answer and Motion and at Oral
Argument, Hoku owes Idaho Power a $1.8 millon security deposit, which was payable
no later than December 31,2011. The Hoku Supplement makes no representation that
amount has been wired to Idaho Power nor has Idaho Power received any such
payment. Accordingly, Idaho Power intends to terminate service to Hoku if that security
deposit is not received immediately, unless otherwise ordered by the Commission.
4. At Oral Argument, Hoku failed to disclose a material fact to this
Commission, namely that it had closed a financing arrangement whereby, effective
January 11, 2012, Hoku had access to $10 milion designated to cover its operating
1 While the Hoku Supplement asserts the amount wired was $1,896,656.22, the actual amount
that was wired and the amount that was originally due on the November 2011 invoice was $1,895,656.22.
IDAHO POWER COMPANY'S SUPPLEMENTAL STATEMENT OF FACTS - 2
expenses. Attached hereto as Attachment No. 1 are a true and correct copy of the
Filng Detail from the United States Securities and Exchange Commission ("SEC")
website showing that the SEC accepted an 8-k filing from Hoku announcing the closing
of that financing transaction on "2012-01-11 14:10:28" Eastern Standard Time, or 12:10
p.m. Mountain Standard Time on January 11, 2012, nearly two hours before the Oral
Argument began in the Commission's hearing room, and a copy of the 8-k filing made
with the SEC announcing the financing agreement. Importantly, Mr. Scott Paul, Hoku's
CEO, signed the 8-k prior to the Oral Argument and was present at the Oral Argument.
Thus, Mr. Paul knew Hoku had access to $10 milion to pay its operating expenses but
failed to disclose that to this Commission.
Respectfully submitted this 13th day of January 2012.\
IDAHO POWER COMPANY'S SUPPLEMENTAL STATEMENT OF FACTS - 3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 13th day of January 2012 I served a true and
correct copy of the within and foregoing IDAHO POWER COMPANY'S
SUPPLEMENTAL STATEMENT OF FACTS upon the following named parties by the
method indicated below, and addressed to the following:
Commission Staff
Donald L. Howell, "
Deputy Attomeys General
Idaho Public Utilties Commission
472 West Washington (83702)
P.O. Box 83720
Boise, Idaho 83720-0074
-- Hand Delivered
U.S. Mail
_ Overnight Mail
FAX
-- Email Don.Howell(Çpuc.idaho.gov
Hoku Materials, Inc.
Dean J. Miler
McDEVITT & MILLER LLP
420 East Bannock (83702)
P.O. Box 2564
Boise, Idaho 83701
Hand Delivered
-LU.S. Mail
_ Overnight Mail
FAX
-- Email joe(Çmcdevitt-miler.com
heather(Çmcdevimiller.com
'¡¡Jp~~Willams
IDAHO POWER COMPANY'S SUPPLEMENTAL STATEMENT OF FACTS - 4
BEFORE THE
IDAHO PUBLIC UTiliTIES COMMISSION
CASE NO. IPC-E-11-28
IDAHO POWER COMPANY
ATTACHMENT NO.1
EDGAR Filing Documents for 0001437749-12-000447 Page 1 ofl
Home I Latest Filngs I Previous Page
U.S. SecurÎ:;les arìO Excr"lonCJ8 Cornrnis,);or'
Filng Detail
Search the Next-Generation
EDGAR System
SEC Home )) Search the Next-Generation EDGAR System )) Company Search )) Current Page
Form 8-K - Current report SEC Accession No. 0001437749-12-000447
Filng Date Period of Report Items
2012-01-11 2012-01-11 Item 1.01: Entry into aAC"Filng Date Changed Material Definitive
-01-11 14:10:28")2012-01-1,1 Agreement
Docum",.I.~Item 2.03: Creation of a
4 Direct Financial
Obligation or an
Obligation under an Of-
Balance Sheet
Arrangement of a
Registrant
Item 9.01: Financial
Statements and Exhibits
. Format Files
Seq Description Document Type Size
1 FORM8-K hoku_8k-011112.htm 8-K 39497
2 EXHIBIT 10.1 ex10-1.htm EX-10.1 324461
3 EXHIBIT 10.2 ex10-2.htm EX-10.2 16856
4 image.jpg GRAPHIC 16279
Complete submission text file 0001437749-12-404709000447.txt
Hoku Corp (Filer) CIK: 0001178336 (see all company
filngs)
IRS No.: 990351487 I State of Incorp.: DE I Fiscal Year End: 0331
Type: 8-K I Act: 341 File No.: 000-51458 I Film No.: 12521814
SIC: 3690 Miscellaneous Electrical Machinery, Equipment & Supplies
Assistant Director 10
Business Address
1288 ALA MOANA
BLVD., SUITE 220
HONOLULU HI 96814
808-682-7800
Mailing Address
1288 ALA MOANA
BLVD., SUITE 220
HONOLULU HI 96814
http://ww.sec.gov/Archives/edgar/data1178336/000143774912000447/0001437749-12-...1/13/2012
Hoku Corporation - Current Report Page 1 of5
FORM8-K
CURNT REPORT
Pursuant to Section 13 or 15( d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): Janua 11,2012
HOKU CORPORATION
(Exact name of registrant as specified in its charer)
Delaware
(State or other jurisdiction
Of incorporation)
000-51458
(Commission File Number)
99-0351487
(IRS Employer Identification No.)
1288 Ala Moana Blvd, Suite 220
Honolulu, Hawaü
(Address of pricipal executive offces)
96814
(Zip Code)
Registrant's telephone number, includig area code: [phone]
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K fiing is intended to simultaeously satisfy the filing obligation of the
registrt under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securties Act (17 CFR 230.425)
o Solicitig material puruat to Rule 14a-12 under the Exchange Act (17 CFR 240. 14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240. 14d-2(b))
o Pre-commencement communications puruant to Rule 13e-4( c) under the Exchange Act (17 CFR 240.13e-4( c))
htt://apps.shareholder.com/sec/viewerContent.aspx?companyid=HOKU&docid=8333288 1/13/2012
Hoku Corporation - Current Report Page 2 of5
Item 1.01.Entry into a Material Dermitive Ageement
Credit Agreement
On January i 1,2012, Hoku Corporation ("Hoku") entered into a Credit Agrement (the "Credit Agreement") with Industral
and Commercial Ban of China, Limited, New York Branch (the "Lendet'). The Credit Agreement provides for one or more
term loans (the "Loan") in an aggregate pricipal amount not to exceed $10.0 milion (the "Maximum Loan Amount"),
which must be borrowed by Januar 19,2012. The pricipal amount of the Loans and any unpaid interest thereon must be
paid in ful by Januar 11, 2017 or the tenth business day pnor to the date on which the stadby letter of credit expires or
otherwise terminates, whichever is earlier. Funds provided pursuat to the Credit Agreement are for the completion of the
constrction of the polysilicon production plant curently being constrcted by Hoku's subsidiar, Hoku Matenals, Inc., in
Pocatello, Idaho.
The Loans wil bear interest at a per anum rate equal to the LIBOR Rate (as set fort in the Credit Agreement) for the
applicable interest penod plus 4.0%. Hoku has also agreed to pay the Lender's reasonable costs and expenses in connection
with the preparation, negotiation and delivery of the Credit Agreement. Hoku may not prepay the Loans, in whole or in par,
at any time without the Lender's pnor wrtten consent (such consent to be given in the Leders' sole discretion). In addition,
the Credit Agreement provides for a prepayment fee ranging from 3% to 1% of the pricipal amounts prepaid depending
upon the timing of such prepayments.
The Credit Agreement includes customar representations, waranties, covenants, acceleration, indemnity, and events of
default provisions which may accelerate Hoku's payment obligations under the Credit Agreement.
The Loan are secured by a stadby letter of credit issued by Industral and Commercial Ban of Chia Limited, Sichua
Branch, which was procured by Tianwei New Energy Holdings Co., Ltd., Hoku's parent company ("Tianwei"), in favor of
the Lender and which has an aggregate drawable amount of not less than $12.4 millon.
The foregoing descnption of the Credit Agreement does not purort to be complete and is qualified in its entirety by
reference to the Credit Agreement, a copy of which is attched as Exhibit 10.1 to this Current Report on Form 8-K and
incorporated herein by reference.
Related Arrangements between Hoku and Tianwei
As previously disclosed in Hoku's penodic reports fied with the Secunties and Exchage Commission, Tianwei and Hoku
have been discussing what would constitute fair compensation for Tianwei for the financial servces it is providing
Hoku. Tianwei has and wil provide stadby letters of credit to secure the Loans in reliance on an understading with Hoku
that Tianwei wil receive fair compensation for providig the letters of credit. Hoku and Tianwei are stil discussing the
amount and tye of compensation; however Hoku believes the compensation wil be in the form of a common stock wart.
In addition, on Januar 11, 2012, in consideration of Tianwei's procurement of the intial stadby letter of credit and its
efforts to obtain additional stadby letters of credit to secure Loans under the Credit Agreement, Hoku entered into a
Reimbursement Agreement with Tianwei obligating it to repay Tianwei for all interest, fees and expenses incured by
Tianwei in connection with the negotiation, execution and performance of the stadby letter of credit contemplated by the
Credit Agreement.
The foregoing descnption of the Reimbursement Agreement does not purport to be complete and is qualified in its entirety by
reference to the Reimbursement Agreement, a copy of which is attched as Exhbit 10.2 to ths Curent Report on Form 8-K
and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
http://apps.shareholder.com/sec/viewerContent.aspx?companyid=HOKU&docid=8333288 1/13/2012
Hoku Corporation - Current Report
The inormation set fort in Item 1.01 above is incorporated by reference into ths Item 2.03.
Page 3 of5
http://apps.shareholder.com/sec/viewerContent.aspx?companyid=HOKU&docid=8333288 1/13/2012
Hoku Corporation - Curent Report Page 4 of5
Item 9.01.Financial Statements and Exhibits.
(d) Exhibits.
Exhbit No.Description
10.1 Credit Agreement, dated Januar 11,2012, betwee Hoku Coipmtion and Industral and Commercial
Ban of Chia, Limited, New York Brach.
10.2 Reimbursement Agreement, dated January 11,2012, between Hoku Corporation and Tianwei New
Energy Holdings Co., Ltd.
http://apps.shareholder.com/sec/viewerContent.aspx?companyid=HOKU&docid=8333288 1/13/2012
Hoku Corporation - Curent Report Page 5 of5
SIGNATUR
Puuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused ths report to be
signed on its behalfby the undersigned, thereunto duly authorized.
Dated: Janua 11,2012
Hoku Corporation
By:/s/ Scott Paul
Scott Paul
Chief Executive Officer
http://apps.shareholder.comlsec/viewerContent.aspx?companyid=HOKU&docid=8333288 1/13/2012