FORMFACTOR INC - Quarter Report: 2008 September (Form 10-Q)

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UNITED STATES SECURITIES AND EXCHANGE

COMMISSION

Washington, D.C. 20549

 

Form 10-Q

 

 

Commission file number: 000-50307

 

FormFactor, Inc.

(Exact name of registrant as specified in its charter)

 

 

7005 Southfront Road, Livermore, California 94551

(Address of principal executive offices, including zip code)

 

(925) 290-4000

(Registrant’s telephone number, including area code)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.   Yes x  No o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes o  No x

 

As of October 25, 2008, 49,062,308 shares of the registrant’s common stock, par value $0.001 per share, were outstanding.

 

 

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FORMFACTOR, INC.

 

FORM 10-Q FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 27, 2008

 

INDEX

 

Part I.	Financial Information	3
Item 1.	Financial Statements:	3
	Unaudited Condensed Consolidated Statements of Operations for the three and nine months ended September 27, 2008 and September 29, 2007	3
	Unaudited Condensed Consolidated Balance Sheets as of September 27, 2008 and December 29, 2007	4
	Unaudited Condensed Consolidated Statements of Cash Flows for the nine months ended September 27, 2008 and September 29, 2007	5
	Notes to Unaudited Condensed Consolidated Financial Statements	6
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	18
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	26
Item 4.	Controls and Procedures	27
Part II.	Other Information	28
Item 1.	Legal Proceedings	28
Item 1A.	Risk Factors	28
Item 6.	Exhibits	32
Signature		33
Exhibit Index		34

 

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PART I. FINANCIAL INFORMATION

 

Item 1. Financial Statements

 

FORMFACTOR, INC.

 

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(In thousands, except per share amounts)

(Unaudited)

 

		Three Months Ended						Nine Months Ended
		September 27,			September 29,			September 27,			September 29,
		2008			2007			2008			2007
Revenues		$	52,584		$	125,291		$	170,300		$	341,686
Cost of revenues		40,583			58,609			134,626			156,563
Gross margin		12,001			66,682			35,674			185,123
Operating expenses:
Research and development		17,079			16,219			49,288			44,704
Selling, general and administrative		23,675			23,365			69,038			69,349
Restructuring charges		141			—			8,684			—
Total operating expenses		40,895			39,584			127,010			114,053
Operating (loss) income		(28,894		)	27,098			(91,336		)	71,070
Interest income, net		2,805			5,766			10,808			16,767
Other income		263			415			404			234
(Loss) income before income taxes		(25,826		)	33,279			(80,124		)	88,071
(Benefit) provision for income taxes		(11,785		)	11,056			(29,463		)	29,532
Net (loss) income		$	(14,041	)	$	22,223		$	(50,661	)	$	58,539
Net (loss) income per share:
Basic		$	(0.29	)	$	0.46		$	(1.04	)	$	1.23
Diluted		$	(0.29	)	$	0.45		$	(1.04	)	$	1.19
Weighted-average number of shares used in per share calculations:
Basic		48,988			48,291			48,855			47,757
Diluted		48,988			49,729			48,855			49,335

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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FORMFACTOR, INC.

 

CONDENSED CONSOLIDATED BALANCE SHEETS

(In thousands, except share and per share amounts)

(Unaudited)

 

		September 27,			December 29,
		2008			2007
ASSETS
Current assets:
Cash and cash equivalents		$	427,614		$	315,232
Marketable securities		107,839			254,814
Accounts receivable, net		40,094			69,486
Inventories		22,205			29,309
Deferred tax assets		18,447			17,995
Refundable income taxes		27,179			2,043
Prepaid expenses and other current assets		13,553			13,461
Total current assets		656,931			702,340
Restricted cash		680			2,250
Property and equipment, net		121,382			130,882
Deferred tax assets		14,927			10,038
Other assets		7,518			9,812
Total assets		$	801,438		$	855,322
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable		$	30,043		$	42,893
Accrued liabilities		20,768			30,029
Income tax payable		1,840			1,328
Deferred revenue		5,437			5,535
Deferred rent		455			462
Total current liabilities		58,543			80,247
Long-term income tax payable		7,414			12,248
Deferred rent and other liabilities		5,955			5,877
Total liabilities		71,912			98,372
Commitments and contingencies (Note 10)
Stockholders’ equity
Preferred stock, $0.001 par value:
10,000,000 shares authorized; no shares issued and outstanding at September 27, 2008 and December 29, 2007, respectively		—			—
Common stock, $0.001 par value:
250,000,000 shares authorized; 49,062,308 and 48,642,258 shares issued and outstanding at September 27, 2008 and December 29, 2007, respectively		49			49
Additional paid-in capital		597,556			573,553
Accumulated other comprehensive income		163			929
Retained earnings		131,758			182,419
Total stockholders’ equity		729,526			756,950
Total liabilities and stockholders’ equity		$	801,438		$	855,322

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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FORMFACTOR, INC.

 

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

(Unaudited)

 

		Nine Months Ended
		September 27, 2008			September 29, 2007
Cash flows from operating activities:
Net (loss) income		$	(50,661	)	$	58,539
Adjustments to reconcile net (loss) income to net cash (used in) provided by operating activities:
Depreciation and amortization		24,063			19,570
Stock-based compensation expense		17,905			19,960
Deferred income taxes		(9,727		)	(2,950		)
Excess tax benefits from equity based compensation plans		(266		)	(7,486		)
Provision for excess and obsolete inventories		12,307			9,540
Loss on disposal and impairment of property and equipment		982			576
Changes in assets and liabilities:
Accounts receivable		29,389			(31,619		)
Inventories		(5,302		)	(23,094		)
Prepaid expenses and other current assets		510			(2,555		)
Refundable income taxes		(22,942		)	—
Other assets		830			(8,950		)
Accounts payable		(3,779		)	7,612
Accrued liabilities		(7,811		)	(8,833		)
Income taxes payable		1,046			11,745
Deferred rent		(302		)	484
Deferred revenue		(99		)	(538		)
Net cash (used in) provided by operating activities		(13,857		)	42,001
Cash flows from investing activities:
Acquisition of property and equipment		(26,418		)	(37,107		)
Purchase of marketable securities		(181,004		)	(164,397		)
Proceeds from maturities of marketable securities		49,015			24,085
Proceeds from sales of marketable securities		277,331			94,406
Release of restricted cash		1,570			—
Net cash provided by (used in) investing activities		120,494			(83,013		)
Cash flows from financing activities:
Proceeds from issuance of common stock		5,678			32,906
Excess tax benefits from equity based compensation plans		266			7,486
Net cash provided by financing activities		5,944			40,392
Effect of exchange rate changes on cash and cash equivalents		(199		)	(120		)
Net increase (decrease) in cash and cash equivalents		112,382			(740		)
Cash and cash equivalents, beginning of the period		315,232			284,131
Cash and cash equivalents, end of the period		$	427,614		$	283,391
Supplemental disclosure of significant non-cash investing activities:
Purchases of property and equipment through accounts payable and accrued liabilities		$	(11,400	)	$	7,130

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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FORMFACTOR, INC.

 

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)

 

Note 1 — Basis of Presentation

 

Basis of presentation. The accompanying unaudited condensed consolidated interim financial statements of FormFactor, Inc. and its subsidiaries (the “Company”) have been prepared in accordance with accounting principles generally accepted in the United States of America and pursuant to the instructions to Form 10-Q and Article 10 of Regulation S-X of the Securities and Exchange Commission (the “SEC”). The Company’s interim financial statements do not include all of the information and footnotes required by generally accepted accounting principles for annual financial statements. In the opinion of management, all adjustments (consisting only of normal recurring adjustments) considered necessary for a fair statement have been included. Operating results for the three and nine months ended September 27, 2008 are not necessarily indicative of the results that may be expected for the year ending December 27, 2008, or for any other period. The balance sheet at December 29, 2007 has been derived from the audited consolidated financial statements at that date but does not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements. These financial statements and notes should be read with the consolidated financial statements and notes thereto for the year ended December 29, 2007 included in the Company’s Annual Report on Form 10-K filed with the SEC on February 27, 2008.

 

Fiscal Year. The Company operates on a 52/53 week fiscal year, whereby the year ends on the last Saturday of December. Fiscal year 2008 will end on December 27, 2008, and will consist of 52 weeks.

 

Note 2 — Significant Accounting Policies

 

The Company’s significant accounting policies are disclosed in the Company’s Annual Report on Form 10-K for the fiscal year ended December 29, 2007. As described in Note 4, the Company adopted certain provisions of Financial Accounting Standards Board (“FASB”) Statement of the Financial Accounting Standards (“SFAS”) No. 157, “Fair Value Measurements” as of the first day of the first quarter of fiscal 2008.

 

Note 3 — Restructuring Charges

 

Fiscal 2008 Quarter 1 Cost Reduction Plan

 

On February 5, 2008, the Company announced a cost reduction plan that included reducing its global workforce. The worldwide reduction in workforce involved approximately 114 employees, or 14% of the headcount prior to the reduction. The plan was designed to restructure the Company to better align with the market environment. The majority of the activities comprising the quarter 1 cost reduction plan were completed by the end of the first quarter of fiscal 2008 and consisted primarily of global workforce reductions and property and equipment impairments. During the three months ended March 29, 2008 the Company recorded a charge of $5.3 million related to the quarter 1 cost reduction plan. In addition, the Company and Jorge L. Titinger, its former Senior Vice President, Product Business Group, mutually agreed to eliminate Mr. Titinger’s position as part of the Company’s quarter 1 restructuring activities in light of market and business conditions. In connection with his departure, at March 29, 2008, the Company recorded charges of approximately $613,000, consisting primarily of a severance payment of $204,000 and approximately $287,000 in stock-based compensation resulting from the accelerated vesting of a portion of his unvested restricted stock units representing an aggregate of 18,680 shares. These charges were recorded as components of restructuring in the Condensed Consolidated Statements of Operations.

 

During the three and nine months ended September 27, 2008, the Company paid approximately $8,000 and $3.8 million, respectively, related to accrued severance, benefits and other costs. Additionally, during the nine months ended September 27, 2008, the Company recognized a reduction of $345,000 as adjustments to costs previously accrued for the quarter 1 cost reduction plan. These charges are recorded as components of restructuring in the Condensed Consolidated Statements of Operations.

 

Fiscal 2008 Quarter 2 Cost Reduction Plan

 

On April 8, 2008, the Company announced its commitment to implement a second global cost reduction plan that included reducing its global workforce by approximately 12%, with reductions primarily coming from the Company’s North America operations. The plan also included the consolidation of a facility in Livermore, California. The plan was designed to

 

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restructure the Company to better align with the market environment. A substantial portion of the activities comprising the quarter 2 cost reduction plan was completed by the end of the second quarter of fiscal 2008 with the remaining activities to be completed in the next nine months.

 

During the three and nine months ended September 27, 2008, the Company recorded charges of approximately $141,000 and $3.7 million, respectively, related to the quarter 2 cost reduction plan which includes $86,000 and $415,000, respectively, associated with the facility consolidation. During the three and nine months ended September 27, 2008 the Company paid approximately $319,000 and $3.1 million related to accrued severance, benefits and other costs and $248,000 and $336,000, respectively, related to the facility consolidation. These charges are recorded as components of restructuring in the Condensed Consolidated Statements of Operations.

 

The following table summarizes the activities related to both cost reduction plans as of September 27, 2008 (in thousands):

 

		Fiscal 2008 Restructuring
		Quarter 1 Cost Reduction Plan						Quarter 2 Cost Reduction Plan
		Employee			Property			Employee			Contract
		Severance and			and Equipment			Severance and			Termination and
		Benefits			Impairment			Benefits			Other			Total
Accrual at December 29, 2007		$	—		$	—		$	—		$	—		$	—
Restructuring charges		4,680			640			—			—			5,320
Cash payments		(1,508		)	—			—			—			(1,508		)
Non-cash settlements		(477		)	(640		)	—			—			(1,117		)
Accrual at March 29, 2008		$	2,695		$	—		$	—		$	—		$	2,695
Restructuring (reversals) charges		(345		)	—			3,239			329			3,223
Cash payments		(2,277		)	—			(2,781		)	(88		)	(5,146		)
Non-cash settlements		—			—			(173		)	—			(173		)
Accrual at June 28, 2008		$	73		$	—		$	285		$	241		$	599
Restructuring charges		—			—			55			86			141
Cash payments		(8		)	—			(319		)	(248		)	(575		)
Non-cash settlements		—			—			—			—			—
Accrual at September 27, 2008		$	65		$	—		$	21		$	79		$	165

 

The charges above have been reflected separately as restructuring in the Condensed Consolidated Statements of Operations. The remaining accrual, as of September 27, 2008 relates to severance benefits and other costs associated with the facility consolidation which will be paid within the next nine months. As such, the restructuring accrual is recorded as a current liability within accrued liabilities in the Condensed Consolidated Balance Sheets.

 

Note 4 – Fair Value

 

Effective December 30, 2007, the Company adopted SFAS No. 157, “Fair Value Measurements.” In February 2008, FASB issued FASB Staff Position No. FAS 157-2, “Effective Date of FASB Statement No. 157,” which provides a one year deferral of the effective date of SFAS 157 for non-financial assets and non-financial liabilities, except those that are recognized or disclosed in the financial statements at fair value at least annually. The Company adopted the provisions of SFAS 157 with respect to its financial assets and liabilities only. SFAS No. 157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosures about fair value measurements. SFAS No. 157 applies under other accounting pronouncements that require or permit fair value measurements and does not require any new fair value measurements. The standard describes a fair value hierarchy based on three levels of inputs, the first two of which are considered observable and the last unobservable, that may be used to measure fair value:

 

·                  Level 1 - Quoted prices in active markets for identical assets or liabilities.

 

·                  Level 2 - Observable inputs other than Level 1 prices, such as quoted prices for similar assets or liabilities; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities. The Company’s Level 2 assets primarily include U.S. government and agency securities and municipal securities, whose values are determined using pricing models with inputs that are observable in the market or can be derived principally from or corroborated by observable market data.

 

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·                  Level 3 - Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

 

The Company measures and reports certain financial assets and liabilities at fair value on a recurring basis, including money market funds, U. S. government securities, municipal bonds, agency securities and foreign currency derivatives. In accordance with SFAS 157, the following table represents the Company’s fair value hierarchy for its financial assets (cash equivalents and marketable securities) measured at fair value on a recurring basis as of September 27, 2008:

 

		Level 1			Level 2			Total
		(In thousands)
Cash equivalents
Money market funds		$	198,500		$	—		$	198,500
U. S. government securities					99,007			99,007
Marketable securities
U. S. government securities		—			31,706			31,706
Municipal bonds		—			20,908			20,908
Agency securities		—			55,225			55,225
Total cash equivalents and marketable securities		$	198,500		$	206,846		$	405,346

 

Note 5 — Inventories

 

Inventories are stated at the lower of cost (principally standard cost which approximates actual cost on a first-in, first-out basis) or market value. Provision for estimated excess and obsolete inventories are made based on management’s analysis of inventory levels and future sales forecasts. Once the value is adjusted, the original cost of the Company’s inventory less the related inventory write-down represents the new cost basis of such products. Reversal of these write-downs is recognized only when the related inventory has been scrapped or sold.

 

Inventories consisted of the following:

 

		September 27,			December 29,
		2008			2007
		(In thousands)
Raw materials		$	3,514		$	12,442
Work-in-progress		12,882			12,971
Finished goods		5,809			3,896
		$	22,205		$	29,309

 

Note 6 — Warranty

 

The Company offers warranties on its products, other than certain evaluation and early adopter products that are not offered with warranty, and records a liability for the estimated future costs associated with customer warranty claims, which is based upon historical experience and the Company’s estimate of the level of future costs. Warranty costs are reflected in the Condensed Consolidated Statements of Operations as a cost of revenues.

 

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A reconciliation of the changes in the Company’s warranty liability (included in accrued liabilities in the Condensed Consolidated Balance Sheets) follows:

 

		Three Months Ended						Nine Months Ended
		September 27,			September 29,			September 27,			September 29,
		2008			2007			2008			2007
		(In thousands)
Warranty accrual beginning balance		$	1,480		$	1,140		$	1,383		$	778
Accrual for warranties issued during the period		1,398			1,867			3,886			4,500
Settlements made during the period		(985		)	(1,294		)	(3,376		)	(3,565		)
Warranty accrual ending balance		$	1,893		$	1,713		$	1,893		$	1,713

 

Note 7 — Stock-Based Compensation

 

The Company recorded stock-based compensation as follows:

 

		Three Months Ended						Nine Months Ended
		September 27,			September 29,			September 27,			September 29,
		2008			2007			2008			2007
		(In thousands)						(In thousands)
Stock-based compensation expense by type of award:
Employee stock options (1) (2)		$	4,024		$	5,501		$	13,591		$	16,940
Employee stock purchase plan		347			623			2,169			2,225
Restricted stock units (3) (4)		758			32			2,039			880
Net change in amounts capitalized as inventory		(35		)	(36		)	106			(85		)
Total stock-based compensation		5,094			6,120			17,905			19,960
Tax effect on stock-based compensation		(1,751		)	(2,383		)	(5,581		)	(7,016		)
Effect on net (loss) income		$	3,343		$	3,737		$	12,324		$	12,944

 

(1)		The nine months ended September 27, 2008 includes approximately $256,000 in net stock-based compensation benefit resulting from the modification and acceleration of the vesting of a portion of the Company’s former Chief Financial Officer’s stock options in conjunction with his separation agreement and general release.
(2)		The nine months ended September 29, 2007 includes approximately $575,000 in stock-based compensation resulting from the accelerated vesting of a portion of the Company’s former President’s stock options in conjunction with his separation agreement and general release.
(3)		The nine months ended September 27, 2008 includes approximately $287,000 in stock-based compensation resulting from the acceleration of the vesting of a portion of the Company’s former Senior Vice President, Product Business Group’s restricted stock units in conjunction with his separation agreement and general release (See Note 3 – Restructuring Charges.)
(4)		The nine months ended September 29, 2007 includes approximately $798,000 in incremental stock-based compensation resulting from the acceleration of the Company’s former President’s remaining unvested restricted stock units in conjunction with his separation agreement and general release.

 

Equity Incentive Plans

 

The Company has four equity incentive plans: 1996 Stock Option Plan, Incentive Option Plan and Management Incentive Option Plan (collectively, the “Prior Plans”), and 2002 Equity Incentive Plan (“2002 Plan”), which became effective in June 2002. Upon the effectiveness of the 2002 Plan, the Company ceased granting any equity awards under the Prior Plans, although forfeited Prior Plan shares are transferred to the 2002 Plan.

 

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Stock Options

 

The following weighted average assumptions were used in the estimated grant-date fair value calculations using the Black-Scholes option pricing model for stock options:

 

		Three Months Ended				Nine Months Ended
		September 27,		September 29,		September 27,		September 29,
		2008		2007		2008		2007
Stock Options:
Dividend yield		—		—		—		—
Expected volatility		52.7	%	45.0	%	53.1	%	44.4	%
Risk-free interest rate		3.27	%	4.44	%	3.06	%	4.62	%
Expected term (in years)		4.75		4.75		4.75		4.71

 

Stock option activity under the Prior Plans and the 2002 Plan during the nine months ended September 27, 2008 is set forth below:

 

		Shares		Options		Weighted Average
		Available		Outstanding		Exercise Price
Balances, December 29, 2007		4,930,527		6,611,496		$	29.18
Additional shares reserved		2,432,112		—		—
Options granted		(1,123,510	)	1,123,510		20.90
Awards granted		(625,680	)	—		—
Options exercised		—		(119,674	)	5.97
Options cancelled:
Forfeited		636,520		(636,520	)	35.98
Expired		194,080		(194,080	)	31.34
Awards cancelled		53,245		—		—
Balances, September 27, 2008		6,497,294		6,784,732		$	27.52

 

Restricted Stock Units

 

Restricted stock units are converted into shares of the Company’s common stock upon release on a one-for-one basis. The vesting of restricted stock units is subject to the employee’s continuing service to the Company. The cost of these awards is determined using the fair value of the Company’s common stock on the date of the grant, and compensation cost is recognized over the vesting period. Restricted stock units generally vest over four years.

 

Activity of the restricted stock units under the 2002 Plan during the nine months ended September 27, 2008 is set forth below:

 

				Weighted
				Average Grant
		Units		Date Fair Value
Restricted stock units at December 29, 2007		22,150		$	32.76
Awards granted		625,680		20.17
Awards released		(27,180	)	30.27
Awards cancelled		(53,245	)	19.36
Restricted stock units at September 27, 2008		567,405		$	20.10

 

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Employee Stock Purchase Plan

 

The Company’s 2002 Employee Stock Purchase Plan (the “ESPP”) provides that eligible employees may contribute up to 15% of their eligible earnings toward the semi-annual purchase of the Company’s common stock, subject to certain limitations. Under the ESPP, employees may purchase the Company’s common stock through payroll deductions at a price equal to 85% of the lower of the fair market value at the beginning of the applicable offering period or at the end of each applicable purchase period. Until February 1, 2007, each offering period was generally two years in length, consisting of four six month purchase periods. Effective from February 1, 2007, the offering periods under the ESPP are a 12 month fixed offering period commencing on February 1 of each calendar year and ending on January 31st of the subsequent calendar year, and a six month fixed offering period commencing on August1^st of each calendar year and ending on January 31st of the subsequent calendar year. The 12 month offering period consists of two six month purchase periods and the six month offering period consists of one six month purchase period. During the nine months ended September 27, 2008 and September 29, 2007, 286,349 shares and 253,253 shares, respectively, were issued under the ESPP. As of September 27, 2008, the Company had $0.4 million of total unrecognized deferred stock-based compensation related to ESPP grants, which will be recognized over the weighted average period of 0.3 years. Compensation expense is calculated using the fair value of the employees’ purchase rights under the Black-Scholes model.

 

The following assumptions were used in the estimated fair value calculations for the employees’ purchase rights:

 

		Three Months Ended				Nine Months Ended
		September 27, 2008		September 29, 2007		September 27, 2008		September 29, 2007
ESPP:
Dividend yield		—		—		—		—
Expected volatility		56.2	%	37.9	%	52.2	%	41.1	%
Risk-free interest rate		1.88	%	4.96	%	2.10	%	5.02	%
Expected term (in years)		0.5		0.5		.74		0.73

 

Note 8 — Net Income (Loss) per Share

 

Basic net income (loss) per share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding for the period. Diluted net income (loss) per share is computed giving effect to all potential dilutive common stock, including stock options, restricted stock units and common stock subject to repurchase.

 

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A reconciliation of the numerator and denominator used in the calculation of basic and diluted net income (loss) per share follows:

 

		Three Months Ended						Nine Months Ended
		September 27,			September 29,			September 27,			September 29,
		2008			2007			2008			2007
		(In thousands)
Basic net income (loss) per share
Numerator:
Net (loss) income		$	(14,041	)	$	22,223		$	(50,661	)	$	58,539
Denominator:
Weighted-average common stock outstanding		48,988			48,291			48,855			47,757
Diluted net income (loss) per share
Numerator:
Net (loss) income		$	(14,041	)	$	22,223		$	(50,661	)	$	58,539
Denominator:
Weighted-average shares used in computing basic net income (loss) per share		48,988			48,291			48,855			47,757
Add: Dilutive potential common shares used in computing diluted net income (loss) per share		—			1,438			—			1,578
Weighted-average number of shares used in computing diluted net income (loss) per share		48,988			49,729			48,855			49,335

 

The following table sets forth the weighted-average potentially dilutive securities excluded from the computation in the table above because their effect would have been antidilutive:

 

		Three Months Ended				Nine Months Ended
		September 27,		September 29,		September 27,		September 29,
		2008		2007		2008		2007
		(In thousands)
Options to purchase common stock		6,788		2,947		6,865		2,635
Restricted stock units		571		—		509		—
Employee stock purchase plan		16		—		5		—
Total potentially dilutive securities		7,375		2,947		7,379		2,635

 

Note 9 — Income Taxes

 

The Company estimates its annual effective tax rate at the end of each quarterly period. The Company’s estimate takes into account estimations of annual pre-tax income or loss, the geographic mix of pre-tax income or loss, non-temporary differences and the Company’s interpretations of tax laws and possible outcomes of audits.

 

The amount of income taxes the Company pays is subject to ongoing audits by federal, state and non-U.S tax authorities which might result in proposed assessments. The Company’s estimates for the potential outcome for any uncertain tax issue are judgmental in nature. However, the Company believes that it has adequately provided for any reasonably foreseeable outcome related to those matters. The Company’s future results may include favorable or unfavorable adjustments to its estimated tax liabilities in the period the assessments are made or resolved or when statutes of limitation on potential assessments expire. As of September 27, 2008, changes to the Company’s uncertain tax positions in the next 12 months would be from the results of audits or statute of limitation expirations. These amounts are not estimable at this time.

 

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Under FASB Interpretation No. 48 “Accounting for Uncertainty in Income Taxes – an Interpretation of FAS 109”, the Company classifies interest and penalties related to uncertain tax positions as part of income tax expense. The Company recognized interest expense of $56,000 and $305,000 for the three and nine months ended September 27, 2008, respectively, and $145,000 and $540,000 for the three and nine months ended September 29, 2007, respectively. As of September 27, 2008, the Company had approximately $293,000 of interest and zero penalties related to uncertain tax positions.

 

The Company and its subsidiaries file income tax returns in the U.S. federal jurisdiction, various U.S. states and non-U.S. jurisdictions. The Company is no longer subject to U.S. federal, state and local, or non-U.S. income tax examinations by tax authorities for years prior to 2001. The Company has been under examination by the Internal Revenue Service (IRS) for fiscal years 2004, 2005 and 2006. The IRS has completed the field examination portion of this audit. The IRS issued a notice of proposed assessment in August 2008. The Company has agreed to this assessment. The Company has included the net results, a credit of $2.9 million, from the settlement of the IRS audit in its tax provision for the three months ended September 27, 2008. The Company is currently under examination by the State of California Franchise Tax Board for fiscal years 2004 and 2005.

 

At September 27, 2008, the Company added an additional $2.6 million gross unrecognized tax benefit of which $2.0 million of unrecognized tax benefits would impact its effective tax rate if recognized.  During the quarter ended September 27, 2008 the Company released $5.9 million of liability related to settlements with tax authorities.

 

The Company intends to file a carryback claim for its projected fiscal 2008 net operating loss. The expected tax benefits of this carryback claim are reported as Refundable Income Taxes in the Condensed Consolidated Balance Sheets.

 

Subsequent to the Company’s fiscal quarter end, the “Emergency Economic Stabilization Act of 2008” which contains the “Tax Extenders and Alternative Minimum Tax Relief Act of 2008” was signed into law on October 3, 2008.  Under the act, the research tax credit was retroactively extended for qualifying amounts after December 31, 2007 and before January 1, 2010.  On September 30, 2008, California enacted Assembly Bill 1452 which, among other provisions, suspends net operating loss deductions for 2008 and 2009 and limits the utilization of tax credits to fifty percent of taxpayers’ income.  The Company is currently in the process of analyzing the impact of these law changes on its financial statements.

 

Note 10 — Commitments and Contingencies

 

Environmental Matters

 

The Company is subject to U.S. federal, state and local, and foreign governmental laws and regulations relating to the protection of the environment, including those governing the discharge of pollutants into the air and water, the management and disposal of hazardous substances and wastes, the clean-up of contaminated sites and the maintenance of a safe workplace. The Company believes that it complies in all material respects with the environmental laws and regulations that apply to it, including those of the California Department of Toxic Substances Control, the Bay Area Air Quality Management District, the City of Livermore Water Resources Division and the California Division of Occupational Safety and Health. The Company received two notices of violation in fiscal 2007 and one notice of violation in the first quarter of fiscal 2008 from the City of Livermore regarding violation of certain applicable waste water discharge limits. For each notice received, the Company promptly investigated the violation, took appropriate steps to address the cause of the violation, and implemented corrective measures to prevent a recurrence. The Company implemented additional waste water treatment capability in consultation with the City of Livermore, and purchased additional waste water discharge capacity, which the Company required as a result of its increased manufacturing capacity, through the City of Livermore. No provision has been made for loss from environmental remediation liabilities associated with the Company’s Livermore facility because the Company believes that it is not probable that a liability has been incurred as of September 27, 2008.

 

While the Company believes that it is in compliance in all material respects with the environmental laws and regulations that apply to it, in the future, the Company may receive additional environmental violation notices, and if received, final resolution of the violations identified by these notices could harm the Company’s operations, which may adversely impact its operating results and cash flows. New laws and regulations, stricter enforcement of existing laws and regulations, the discovery of previously unknown contamination at the Company or others’ sites or the imposition of new cleanup requirements could also harm the Company’s operations, thereby adversely impacting its operating results and cash flows.

 

Legal Matters

 

From time to time, the Company may be subject to legal proceedings and claims in the ordinary course of business. For the fiscal quarter ended September 27, 2008, the Company was not involved in any material legal proceedings, other than the proceedings summarized below. In the future the Company may become a party to additional legal proceedings, including proceedings designed to protect its intellectual property rights that require the Company to spend significant resources.

 

Patent Litigation

 

The Company has initiated patent infringement litigation in the United States against Phicom Corporation, a Korea corporation, and its U.S. subsidiary, both collectively “Phicom”, and against Micronics Japan Co., Ltd., a Japan corporation, and its U.S. subsidiary, both collectively “Micronics Japan.”  In 2005, the Company filed a patent infringement lawsuit in the

 

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United States District Court for the District of Oregon against Phicom charging that it is willfully infringing four U.S. patents that cover key aspects of the Company’s wafer probe cards — U.S. Patent Nos. 5,974,662, entitled “Method of Planarizing Tips of Probe Elements of a Probe Card Assembly,” 6,246,247, entitled “Probe Card Assembly and Kit, and Methods of Using Same,” 6,624,648, entitled “Probe Card Assembly” and 5,994,152, entitled “Fabricating Interconnects and Tips Using Sacrificial Substrates.” In 2006, the Company also filed an amended complaint in the same Oregon district court that adds two additional patents to the litigation — U.S. Patent Nos. 7,073,254, entitled “Method for Mounting a Plurality of Spring Contact Elements” and 6,615,485, entitled “Probe Card Assembly and Kit, And Methods of Making Same.” Phicom answered the complaint and the amended complaint by denying infringement, alleging defenses and asserting counterclaims seeking adjudications on the validity and enforceability of the Company’s patents and whether Phicom is infringing those patents. Also in 2006, the Company filed a patent infringement lawsuit in the United States District Court for the Northern District of California against Micronics Japan charging that it is willfully infringing four U.S. patents that cover key aspects of the Company’s wafer probe cards—U.S. Patent Nos. 6,246,247, entitled “Probe Card Assembly and Kit, and Methods of Using Same,” 6,509,751, entitled “Planarizer for a Semiconductor Contactor,” 6,624,648, entitled “Probe Card Assembly” and 7,073,254, entitled “Method for Mounting a Plurality of Spring Contact Elements.” Micronics Japan answered the complaint by denying infringement, alleging defenses and asserting counterclaims seeking adjudications on the validity and enforceability of the Company’s patents and whether Micronics Japan is infringing those patents. The complaints in these actions seek both injunctive relief and monetary damages. These two district court actions have been stayed pending resolution of the complaint that the Company filed with the United States International Trade Commission, which is described below.

 

On or about November 13, 2007, the Company filed a complaint with the United States International Trade Commission, or ITC, seeking institution of a formal investigation by the ITC into the activities of Micronics Japan and Phicom. The requested investigation encompasses U.S. Patent Nos. 5,994,152, entitled “Fabricating Interconnects and Tips Using Sacrificial Substrates,” 6,509,751, entitled “Planarizer for a Semiconductor Contactor,” 6,615,485, entitled “Probe Card Assembly and Kit, And Methods of Making Same,” 6,624,648, entitled “Probe Card Assembly,” 7,168,162, entitled “Method of Manufacturing a Probe Card” and 7,225,538, entitled “Resilient Contact Structures Formed and Then Attached to a Substrate,” and alleges that infringement by each of Micronics Japan and Phicom of certain of the identified patents constitute unfair acts in violation of 19 U.S.C. Section 1337. In the ITC complaint, the Company alleges violations of Section 337 of the Tariff Act of 1930 in the importation into the United States of certain probe card assemblies, components thereof, and certain tested DRAM and NAND flash memory devices and products containing such devices that infringe patents owned by the Company, and requests a permanent exclusion order banning importation into the United States of infringing products and certain downstream products.

 

On or about December 13, 2007, the ITC provided public notice that it voted to institute an investigation of certain probe card assemblies, components thereof, and certain tested DRAM and NAND flash memory devices and products containing such devices. The products at issue in this investigation are probe card assemblies, which are used to test semiconductor devices that have been fabricated on silicon wafers, memory chips that have been so tested, and products containing such chips.

 

The investigation (337-TA-621) was originally referred to the Honorable Theodore R. Essex, an ITC administrative law judge, and in July 2008 was reassigned to the Honorable Charles E. Bullock, an ITC administrative law judge, who will make an initial determination as to whether there is a violation of Section 337; that initial determination is subject to review by the ITC. The ITC has announced a scheduled hearing date commencing on January 7, 2009; which would likely result in the issuance of an initial determination by the administrative law judge on or before April 17, 2009. The target date for the ITC’s final determination is July 17, 2009. ITC remedial orders in Section 337 cases are effective when issued and become final 60 days after issuance, subject to Presidential review.

 

In addition to the United States litigations, the Company also initiated actions in Seoul, Korea against Phicom. In 2004 the Company filed two actions in Seoul Southern District Court, located in Seoul, South Korea, against Phicom alleging infringement of the Company’s Korean Patent Nos. 252,457, entitled “Method of Fabricating Interconnections Using Cantilever Elements and Sacrificial Substrates,” 324,064, entitled “Contact Tip Structures for Microelectronic Interconnection Elements and Methods of Making Same,” 278,342, entitled “Method of Altering the Orientation of Probe Elements in a Probe Card Assembly” and 399,210, entitled “Probe Card Assembly;” as well as two actions the Company filed in 2006 in Seoul Central District Court against Phicom alleging infringement of certain claims of its Korean Patent No. 252,457 and seeking injunctive relief. These actions are all pending, except that (i) in February 2007, the Seoul Central District Court dismissed the Company’s preliminary injunction complaint related to Korean Patent No. 252,457 (ii) in April 2008, the Seoul Southern District Court dismissed the Company’s complaint as it related to Korean Patent Nos. 252,457 and 324,064, and (iii) in July 2008, the Seoul Central District Court dismissed the Company’s merit complaint related to Korean Patent No. 252,457. The Company appealed the dismissals to the Seoul High Court except the dismissal of the preliminary injunction claim.

 

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In response to the Company’s initiation of the infringement actions in Korea, Phicom filed in the Korean Intellectual Property Office, or KIPO, invalidity actions challenging the validity of some or all of the claims of each of the Company’s four patents at issue in the Seoul Southern District Court infringement actions. KIPO dismissed Phicom’s challenges against all four of the patents-at-issue. Phicom appealed the dismissals of the challenges to the Korea Patent Court. In 2005 the Korea Patent Court issued rulings holding invalid certain claims of the Company’s Korean Patent Nos. 278,342 and 399,210. In 2006, the Korea Patent Court issued a ruling holding invalid certain claims of the Company’s Korean Patent No. 324,064, and also issued a ruling upholding the validity of the Company’s Korean Patent No. 252,457. The Company appealed the Patent Court invalidity rulings to the Korea Supreme Court. Phicom appealed the Patent Court ruling on Korean Patent No. 252,457 to the Korea Supreme Court. In September 2007, the Korea Supreme Court affirmed the Patent Court rulings holding invalid certain claims of the Company’s Korean Patent Nos. 278,342 and 399,210. In April 2008, the Korea Supreme Court affirmed the Patent Court ruling holding invalid certain claims of the Company’s Korean Patent No. 324,064. In June 2008, the Korea Supreme Court reversed the Patent Court ruling and invalidated certain claims of the Company’s Korean Patent No. 252,457 and remanded the case for further trial to the Patent Court.

 

Additionally, one or more third parties have initiated challenges in the U.S. and foreign patent offices against other of the Company’s patents. These actions include re-examination proceedings filed in the U.S. Patent and Trademark Office against certain of the Company’s U.S. Patents that are at issue in the ITC investigation, and proceedings in Korea against two of the Company’s Korean patents and proceedings filed in Taiwan against four of the Company’s Taiwan patents.

 

No provision has been made for patent-related litigation because the Company believes that it is not probable that a liability had been incurred as of September 27, 2008. The Company will incur material attorneys’ fees in prosecuting and defending the various identified actions.

 

Securities Litigation

 

On October 31, 2007, a plaintiff filed a purported stockholder class action in the United States District Court for the Northern District of California in which the Company and certain of its then officers, including one former officer who is a current director, are named as defendants under the caption “Danny McCasland, Individually and on Behalf of All Others Similarly Situated v. FormFactor, Inc., Igor Y. Khandros, Ronald C. Foster and Richard M. Freeman.” Subsequently, plaintiffs filed two other purported stockholder class actions in the United States District Court for the Northern District of California under the captions “Yuk Ling Lui, on Behalf of Herself and All Others Similarly Situated v. FormFactor, Inc., Igor Y. Khandros, Ronald C. Foster and Richard M. Freeman,” and “Victor Albertazzi, Individually and on Behalf of All Others Similarly Situated v. FormFactor, Inc., Igor Y. Khandros, Ronald C. Foster and Richard M. Freeman.” The three actions have been consolidated. The plaintiffs filed these actions following the Company’s restatement of its financial statements for the fiscal year ended December 30, 2006, for each of the fiscal quarters for that year, and for the fiscal quarters ended March 31 and June 30, 2007. In April 2008, the designated lead plaintiffs filed a Consolidated Amended Complaint. The plaintiffs claimed violations of Sections 10(b) and 20(a), and Rule 10b-5 of the Securities Exchange Act of 1934, alleging that the defendants knowingly issued materially false and misleading statements regarding the Company’s business and financial results prior to the restatements. On July 25, 2008, the court granted the defendant’s motion to dismiss the Consolidated Amended Complaint with leave to amend. On August 22, 2008 the designated lead plaintiffs filed a Second Amended Complaint. The Second Amended Complaint also alleges violations of Sections 10(b) and 20(a), and Rule 10b-5 of the Securities Exchange Act of 1934. The plaintiffs again claim that defendants knowingly issued materially false and misleading statements regarding the Company’s business and financial results prior to the restatement, as well as regarding the development of the Harmony product line. Plaintiffs seek to recover unspecified monetary damages, equitable relief and attorneys’ fees and costs. Defendants filed a motion to dismiss the Second Amended Complaint on October 6, 2008, and a hearing on the motion has been set for January 16, 2009.

 

No provision has been made for the securities litigation because the Company believes that it is not probable that a liability had been incurred as of September 27, 2008.

 

Stockholder Derivative Litigation

 

On November 19, 2007, a plaintiff filed a purported stockholder derivative action in the Superior Court of the State of California for the County of Alameda in which the Company is named as a nominal defendant and certain of its directors and then officers are named as defendants under the caption “John King, Derivatively on Behalf of Nominal Defendant FormFactor, Inc. v. Dr. Igor Y. Khandros, Dr. Homa Bahrami, Dr. Thomas J. Campbell, G. Carl Everett, Jr., Lothar Maier, James A. Prestridge, Harvey A. Wagner, Ronald C. Foster and Richard M. Freeman, and FormFactor, Inc.” Subsequently,

 

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another plaintiff filed a second purported stockholder class action in the Superior Court of the State of California for the County of Alameda under the caption “Joseph Priestley, Derivatively on Behalf of FormFactor, Inc. v. Igor Y. Khandros, Mario Ruscev, James A. Prestridge, Thomas J. Campbell, Harvey A. Wagner, G. Carl Everett, Jr., Homa Bahrami, Lothar Maier, William H. Davidow and Joseph R. Bronson, and FormFactor, Inc.” The plaintiffs filed these two later actions following the Company’s restatement of its financial statements for the fiscal year ended December 30, 2006, for each of the fiscal quarters for that year, and for the fiscal quarters ended March 31 and June 30, 2007. The plaintiffs allege that the defendants breached their fiduciary duties and violated applicable law by issuing, and permitting the Company to issue, materially false and misleading statements regarding the Company’s business and financial results prior to the restatements. The plaintiffs seek to recover monetary damages, and attorneys’ fees and costs. The two derivative actions have been consolidated, and a consolidated amended complaint is expected to be filed on or about February 23, 2009.

 

No provision has been made for the stockholder derivative litigation because the Company believes that it is not probable that a liability had been incurred as of September 27, 2008.

 

The Company believes that the factual allegations and circumstances underlying the legal proceedings in this Note 10 filed against the Company are without merit. The Company also believes that it does not have a material monetary damages exposure in these legal proceedings that would individually or in the aggregate have a material adverse effect on its financial condition, liquidity or results of operations; however, these legal proceedings have been costly and it is possible the Company will incur significant, and possibly material, attorneys’ fees, which may not be covered by its insurance policies. These legal proceedings may also divert the Company’s management’s time and attention away from business operations, which could prove to be disruptive to the Company’s business operations. In addition, an unfavorable outcome or settlement of these proceedings, particularly if it is not covered by or exceeds our insurance coverage, could individually or in the aggregate adversely impact the Company’s financial condition, liquidity or results of operations.

 

Indemnification Arrangements

 

The Company from time to time in the ordinary course of its business enters into contractual arrangements with third parties that include indemnification obligations. Under these contractual arrangements, the Company has agreed to defend, indemnify and/or hold the third party harmless from and against certain losses. These arrangements may limit the time within which an indemnification claim can be made, type of claim and the total amount that the Company can be required to pay in connection with the indemnification obligation. In addition, the Company has entered into indemnification agreements with its directors and certain of its officers, and the Company’s bylaws contain indemnification obligations in favor of the Company’s directors, officers and agents. It is not possible to determine or reasonably estimate the maximum potential amount of future payments under these indemnification obligations due to the varying terms of such obligations, the history of prior indemnification claims and the unique facts and circumstances involved in each particular contractual arrangement and in each potential future claim for indemnification. The Company has not had any requests for indemnification under these arrangements. The Company has not recorded any liabilities for these indemnification arrangements on the Company’s Condensed Consolidated Balance Sheets as of September 27, 2008.

 

Note 11 — Stockholders’ Equity

 

Comprehensive Income (Loss)

 

Comprehensive income (loss) includes foreign currency translation adjustments and unrealized gains (losses) on available-for-sale securities, the impact of which has been excluded from net income and reflected as components of stockholders’ equity.

 

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Components of comprehensive income (loss) were as follows:

 

		Three Months Ended						Nine Months Ended
		September 27,			September 29,			September 27,			September 29,
		2008			2007			2008			2007
		(In thousands)						(In thousands)
Net (loss) income		$	(14,041	)	$	22,223		$	(50,661	)	$	58,539
Change in unrealized gain (loss) on marketable securities, net of tax		116			1,209			(719		)	772
Cumulative translation adjustments		(273		)	112			(47		)	49
Comprehensive (loss) income		$	(14,198	)	$	23,544		$	(51,427	)	$	59,360

 

Components of accumulated other comprehensive income were as follows:

 

		September 27,			December 29,
		2008			2007
		(In thousands)
Unrealized gain on marketable securities		$	113		$	832
Foreign currency translation adjustments		50			97
Accumulated other comprehensive income		$	163		$	929

 

 

Note 12 — Derivative Financial Instruments

 

The Company uses derivative instruments to manage its exposure to foreign currencies. As of September 27, 2008, there were three outstanding foreign exchange forward contracts to sell Japanese Yen, Korean Won and Taiwan Dollars. The following table provides information about our foreign currency forward contracts outstanding as of September 27, 2008:

 

		Contract Amount (Local Currency)		Contract Amount (U.S. Dollars)
		(In thousands)
Japanese Yen		1,676,275		$	15,820
Taiwan Dollar		34,336		1,067
Korean Won		1,174,760		1,007
Total USD notional amount of outstanding foreign exchange contracts				$	17,894

 

The contracts were entered into on September 26, 2008 and matured on October 24, 2008. No gain or loss relating to the outstanding derivative contracts was recorded as of September 27, 2008.

 

Note 13 — Recent Accounting Pronouncements

 

In October 2008, the FASB issued FASB Staff Position (“FSP”) No 157-3 “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active” which clarifies the application of SFAS No. 157 when the market for a financial asset is not active and illustrates how an entity would determine fair value when the market for a financial asset is not active. The FSP is effective immediately and applies to prior periods for which financial statements have not been issued, including interim or annual periods ending on or before September 30, 2008. The adoption of FAS 157-3 did not have any impact on the Company’s consolidated financial statements

 

In September 2008, the FASB issued FASB FSP No. 133-1 and FIN 45-4 (“FSP FAS 133-1 and FIN 45-4”), “Disclosures about Credit Derivatives and Certain Guarantees: An Amendment of FASB Statement No. 133 and FASB Interpretation No. 45; and Clarification of the Effective Date of FASB Statement No. 161”. FSP FAS 133-1 and FIN 45-4 amends FASB Statement No. 133 (“SFAS 133”), “Accounting for Derivative Instruments and Hedging Activities”, to require disclosures by sellers of

 

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credit derivatives, including credit derivatives embedded in hybrid instruments. FSP FAS 133-1 and FIN 45-4 also amend FASB Interpretation No. 45 (“FIN 45”), “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness to Others”, to require additional disclosure about the current status of the payment/performance risk of a guarantee. The provisions of the FSP that amend SFAS 133 and FIN 45 are effective for reporting periods ending after November 15, 2008. FSP FAS 133-1 and FIN 45-4 also clarifies the effective date in FASB Statement No. 161 (“SFAS 161”), “Disclosures about Derivative Instruments and Hedging Activities”. Disclosures required by SFAS 161 are effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. The Company is currently assessing the impact of FSP FAS 133-1 and FIN 45-4 on its consolidated financial results.

 

In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement No. 133.” SFAS No. 161 amends and expands the disclosure requirements of SFAS No. 133 with the intent to provide users of financial statements with an enhanced understanding of: (i) how and why an entity uses derivative instruments; (ii) how derivative instruments and related hedged items are accounted for under SFAS No. 133 and its related interpretations and (iii) how derivative instruments and related hedged items affect an entity’s financial position, financial performance and cash flows. This statement is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008, with early adoption encouraged. The Company is currently assessing the impact of SFAS No. 161 on its consolidated financial results.

 

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities–Including an amendment of FASB Statement No. 115.” This statement permits entities to choose to measure many financial instruments and certain other items at fair value.  Entities shall report unrealized gains and losses on items for which the fair value option has been elected in earnings at each subsequent reporting date.  This statement is effective as of the beginning of an entity’s first fiscal year that begins after November 15, 2007. The adoption of SFAS No. 159, effective January 1, 2008, did not have a material impact on the Company’s financial position, results of operations or cash flows as the Company did not elect the fair value measurement option for any additional financial instruments or other items.

 

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Cautionary Statement Regarding Forward-Looking Statements

 

This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of the Securities Exchange Act of 1934 and the Securities Act of 1933, which are subject to risks, uncertainties and assumptions that are difficult to predict. The forward-looking statements include statements concerning, among other things, our business strategy, including anticipated trends and developments in and management plans for our business and the markets in which we operate, financial results, operating results, revenues, gross margin, operating expenses, products, projected costs and capital expenditures, research and development programs, sales and marketing initiatives, and competition. In some cases, you can identify these statements by forward-looking words such as “may,” “might,” “will,” “could,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “intend” and “continue,” the negative or plural of these words and other comparable terminology.

 

The forward-looking statements are only predictions based on our current expectations and our projections about future events. All forward-looking statements included in this Quarterly Report are based upon information available to us as of the filing date of this Quarterly Report. You should not place undue reliance on these forward-looking statements. We undertake no obligation to update any of these statements for any reason. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially from those expressed or implied by these statements. These factors include the matters discussed in the section titled “Risk Factors” in our Annual Report on Form 10-K for the year ended December 29, 2007, and in the section titled “Risk Factors” and elsewhere in this Quarterly Report. You should carefully consider the numerous risks and uncertainties described under these sections.

 

The following discussion and analysis should be read in conjunction with our condensed consolidated financial statements and the accompanying notes contained in this Quarterly Report. Unless expressly stated or the context otherwise requires, the terms “we,” “our,” “us” and “FormFactor” refer to FormFactor, Inc. and its subsidiaries.

 

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