FORMFACTOR INC - Quarter Report: 2010 March (Form 10-Q)

Table of Contents

 

 

UNITED STATES SECURITIES AND EXCHANGE

COMMISSION

Washington, D.C. 20549

 

Form 10-Q

 

(Mark one)

 

For the quarterly period ended March 27, 2010

 

Or

 

 

For the transition period from            to            

 

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 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 the Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes o  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):

 

Large Accelerated filer o		Accelerated filer x
Non-accelerated filer o		Smaller reporting company o
(Do not check if a smaller reporting company)

 

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

 

As of April 30, 2010, 50,002,619 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 MARCH 27, 2010

 

INDEX

 

Part I.	Financial Information	3
Item 1.	Financial Statements:	3
	Unaudited Condensed Consolidated Statements of Operations for the three months ended March 27, 2010 and March 28, 2009	3
	Unaudited Condensed Consolidated Balance Sheets as of March 27, 2010 and December 26, 2009	4
	Unaudited Condensed Consolidated Statements of Cash Flows for the three months ended March 27, 2010 and March 28, 2009	5
	Notes to Unaudited Condensed Consolidated Financial Statements	6
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	21
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	29
Item 4.	Controls and Procedures	30
Part II.	Other Information	30
Item 1.	Legal Proceedings	30
Item 1A.	Risk Factors	30
Item 6.	Exhibits	33
Signature		34
Exhibit Index		35

 

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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
		March 27,			March 28,
		2010			2009
Revenues		$	39,666		$	27,369
Cost of revenues		41,994			31,048
Gross loss		(2,328		)	(3,679		)
Operating expenses:
Research and development		15,091			14,110
Selling, general and administrative		17,867			26,310
Restructuring		3,550			7,679
Total operating expenses		36,508			48,099
Operating loss		(38,836		)	(51,778		)
Interest income		775			1,115
Other income (expense), net		117			(416		)
Loss before income taxes		(37,944		)	(51,079		)
Provision for (benefit from) income taxes		240			(13,136		)
Net loss		$	(38,184	)	$	(37,943	)
Net loss per share:
Basic		$	(0.77	)	$	(0.77	)
Diluted		$	(0.77	)	$	(0.77	)
Weighted-average number of shares used in per share calculations:
Basic		49,890			49,201
Diluted		49,890			49,201

 

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)

 

		March 27, 2010			December 26, 2009
		(In thousands, except share and per share amounts) (Unaudited)
ASSETS
Current assets:
Cash and cash equivalents		$	92,978		$	122,043
Marketable securities		339,850			327,192
Accounts receivable, net of allowance for doubtful accounts of $9,113 at March 27, 2010 and $9,260 at December 26, 2009, respectively		34,519			29,412
Inventories		31,880			25,548
Deferred tax assets		3,317			3,296
Refundable income taxes		318			26,774
Prepaid expenses and other current assets		12,616			12,346
Total current assets		515,478			546,611
Restricted cash		680			680
Property and equipment, net		97,108			97,758
Deferred tax assets		2,255			2,202
Other assets		8,211			8,717
Total assets		$	623,732		$	655,968
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable		$	29,876		$	29,250
Accrued liabilities		21,667			23,417
Income taxes payable		173			481
Deferred revenue		11,557			10,856
Total current liabilities		63,273			64,004
Long-term income taxes payable		6,423			6,423
Deferred rent and other liabilities		5,468			5,626
Deferred tax liability		2,134			2,134
Total liabilities		77,298			78,187
Commitments and contingencies (Note 16)
Stockholders’ equity
Preferred stock, $0.001 par value:
10,000,000 shares authorized; no shares issued and outstanding at March 27, 2010 and December 26, 2009, respectively		—			—
Common stock, $0.001 par value:
250,000,000 shares authorized; 49,996,082 and 49,762,008 shares issued and outstanding at March 27, 2010 and December 26, 2009, respectively		51			50
Additional paid-in capital		637,273			630,333
Accumulated other comprehensive income		1,149			1,253
Retained earnings (accumulated deficit)		(92,039		)	(53,855		)
Total stockholders’ equity		546,434			577,781
Total liabilities and stockholders’ equity		$	623,732		$	655,968

 

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)

 

		Three Months Ended
		March 27, 2010			March 28, 2009
Cash flows from operating activities:
Net loss		$	(38,184	)	$	(37,943	)
Adjustments to reconcile net income to net cash used in operating activities:
Depreciation and amortization		8,662			8,113
Stock-based compensation expense		5,258			4,787
Deferred income tax provision (benefit)		(96		)	(4,408		)
Excess tax benefits from equity based compensation plans		—			(15		)
Provision for doubtful accounts receivable		(147		)	5,245
Provision for excess and obsolete inventories		1,200			5,062
Loss on disposal of property and equipment		175			144
Non-cash restructuring		—			366
Foreign currency transaction (gains) / losses		332			—
Changes in assets and liabilities:
Accounts receivable		(5,034		)	4,020
Inventories		(7,399		)	(6,083		)
Prepaids and other current assets		(288		)	2,570
Refundable income taxes		26,458			18,921
Other assets		—			6,383
Accounts payable		89			(4,355		)
Accrued liabilities		(1,478		)	(6,559		)
Income tax payable		(317		)	(834		)
Deferred rent		(149		)	(128		)
Deferred revenues		701			3,956
Net cash used in operating activities		(10,217		)	(758		)
Cash flows from investing activities:
Acquisition of property and equipment		(7,342		)	(4,966		)
Purchases of marketable securities		(66,504		)	(199,307		)
Proceeds from maturities of marketable securities		53,771			53,515
Proceeds from sales of marketable securities		—			2,755
Net cash used in investing activities		(20,075		)	(148,003		)
Cash flows from financing activities:
Proceeds from issuances of common stock and awards, net		1,550			1,791
Excess tax benefits from equity based compensation plans		—			15
Net cash provided by financing activities		1,550			1,806
Effect of exchange rate changes on cash and cash equivalents		(323		)	(116		)
Net decrease in cash and cash equivalents		(29,065		)	(147,071		)
Cash and cash equivalents, beginning of period		122,043			337,926
Cash and cash equivalents, end of period		$	92,978		$	190,855
Supplemental cash flow disclosures:
Purchases of property and equipment through accounts payable and accruals		$	285		$	(2,133	)
Income taxes paid (refunded), net		$	(25,820	)	$	(27,391	)

 

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 our subsidiaries have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) and pursuant to the instructions to Form 10-Q and Article 10 of Regulation S-X of the Securities and Exchange Commission (the “SEC”). Our 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 to fairly present our financial position, results of operations and cash flows have been included. Operating results for the three months ended March 27, 2010 are not necessarily indicative of the results that may be expected for the year ending December 25, 2010, or for any other period. The balance sheet at December 26, 2009 has been derived from the audited consolidated financial statements at that date but does not include all of the information and footnotes required by GAAP for complete financial statements. The condensed consolidated financial statements include our accounts as well as those of our wholly-owned subsidiaries after elimination of all significant inter-company balances and transactions.

 

The preparation of condensed consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in our condensed consolidated financial statements and accompanying notes. Actual results could differ from those estimates, and material effects on our consolidated operating results and financial position may result.

 

These financial statements and notes should be read with the consolidated financial statements and notes thereto for the year ended December 26, 2009 included in our Annual Report on Form 10-K filed with the SEC on February 24, 2010.

 

Fiscal Year.  We operate on a 52/53 week fiscal year, whereby the year ends on the last Saturday of December. Fiscal 2010 will end on December 25, 2010, and will consist of 52 weeks.

 

Note 2 —Recent Accounting Pronouncements and Other Reporting Considerations

 

In January 2010, the FASB issued guidance to amend the disclosure requirements related to recurring and nonrecurring fair value measurements. The guidance requires new disclosures on the transfers of assets and liabilities between Level 1 (quoted prices in active market for identical assets or liabilities) and Level 2 (significant other observable inputs) of the fair value measurement hierarchy, including the reasons and the timing of the transfers.  Additionally, the guidance requires a roll forward of activities on purchases, sales, issuance, and settlements of the assets and liabilities measured using significant unobservable inputs (Level 3 fair value measurements). The guidance is effective for interim or annual financial reporting periods beginning after December 15, 2009, except for the disclosures about purchases, sales, issuances and settlements in the roll forward activity in Level 3 fair value measurements, which are effective for fiscal years beginning after December 15, 2010 and for interim periods within those fiscal years. Therefore, we have not yet adopted the guidance with respect to the roll forward activity in Level 3 fair value measurements. Other than requiring additional disclosures, adoption of this new guidance did not have a material impact on our financial statements.

 

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Note 3 — Concentration of Credit and Other Risks

 

Financial instruments that potentially subject us to concentrations of credit risk consist primarily of cash equivalents, investments and trade receivables. Our cash equivalents and marketable securities are held in safekeeping by large, creditworthy financial institutions. We invest our excess cash primarily in U.S. banks, government and agency bonds, money market funds and corporate obligations. We have established guidelines relative to credit ratings, diversification and maturities that seek to maintain safety and liquidity.

 

We sell our products to large multinational semiconductor manufacturers primarily located in Asia and North America. Four customers represented 18.6%, 15.3%, 13.0% and 12.1% of total revenues during the three months ended March 27, 2010, and one customer represented 71.0% of total revenues for the three months ended March 28, 2009. No other customer accounted for more than 10% of total revenues in either of these fiscal periods.

 

We have significant accounts receivables concentrated with a few customers in the semiconductor industry. While our allowance for doubtful accounts balance is based on historical loss experience along with anticipated economic trends, unanticipated financial instability in the semiconductor industry could lead to higher than anticipated losses. As of March 27, 2010, four customers accounted for approximately 18.4%, 16.2%, 14.9%, and 11.8% of gross accounts receivable. At December 26, 2009, three customers accounted for approximately 20.9%, 16.4% and 12.1% of gross accounts receivable.

 

Note 4 — Restructuring Charges

 

Restructuring charges include costs related to employee termination benefits, cost of long-lived assets abandoned, as well as contract termination costs. The determination of when we accrue for employee termination benefits and which standard applies depends on whether the termination benefits are provided under a one-time benefit arrangement or under an on-going benefit arrangement. For restructuring charges recorded as an ongoing benefit arrangement, a liability for post-employment benefits is recorded when payment is probable, the amount is reasonably estimable, and the obligation relates to rights that have vested or accumulated. For restructuring charges recorded as a one-time benefit arrangement, we recognize a liability for employee termination benefits when a plan of termination, approved by management and establishing the terms of the benefit arrangement, has been communicated to employees. The timing of the recognition of one-time employee termination benefits is dependent upon the period of time the employees are required to render service after communication. If employees are not required to render service in order to receive the termination benefits or if employees will not be retained to render service beyond the minimum legal notification period, a liability for the termination benefits is recognized at the communication date. In instances where employees will be retained to render service beyond the minimum legal notification period, the liability for employee termination benefits is measured initially at the communication date based on the fair value of the liability as of the termination date and is recognized ratably over the future service period. We record charges related to long-lived assets to be abandoned when the assets cease to be used. We record a liability for contract termination costs that will continue to be incurred under a contract for its remaining term without economic benefit to us at the cease-use date.

 

We recorded restructuring charges of $3.6 million and $7.7 million for the first quarters of fiscal 2010 and 2009, respectively. The restructuring plan implemented in the first quarter of 2010 is discussed in detail below. For a complete discussion of all restructuring actions that were implemented prior to fiscal 2010, please refer to the Notes to Consolidated Financial Statements included in our Annual Report on Form 10-K filed on February 24, 2010.

 

Restructuring charges of $3.6 million in the first quarter of fiscal 2010 consist of termination benefits related to reductions in work force of approximately 106 full-time positions (the “Q1 2010 Plan”). The Q1 2010 Plan is intended to align resources in continuation of our global regionalization strategy to place more decision-making in regions close to our semiconductor customers. As part of this regionalization strategy, we are moving certain assembly and test operations from our back-end manufacturing processes from Livermore, California to Asia, and are bringing up and plan to qualify our back-end manufacturing operations in Singapore in the third quarter of fiscal 2010.  The activities comprising the reduction in force are expected to be completed by the end of the first quarter of fiscal 2011. We also expect to record further charges of approximately $1.1 million for the Q1 2010 Plan in the second through fourth quarters of fiscal 2010 associated with retention bonuses. The amounts we have accrued represent our best estimate of the obligations we expect to incur and could be subject to adjustment as market conditions change. The cash payments associated with the reduction in force are expected to be paid out in the first quarter of fiscal 2011.

 

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The activity in the restructuring accrual for the three months ended March 27, 2010 was as follows (in thousands):

 

		Restructuring
		Employee
		Severance			Property			Contract
		and			and Equipment			Termination
		Benefits			Write-down			and Other			Total
Accrual at December 26, 2009		$	973		$	—		$	76		$	1,049
Q1’10 Restructuring charges		3,550			—			—			3,550
Cash payments		(991		)	—			—			(991		)
Accrual at March 27, 2010		$	3,532		$	—		$	76		$	3,608

 

Restructuring charges are reflected separately as “Restructuring” in the Condensed Consolidated Statements of Operations. The remaining accrual as of March 27, 2010 relates primarily to severance benefits which will be paid by the end of the first quarter of fiscal 2011. As such, the restructuring accrual is recorded as a current liability within “Accrued liabilities” in the Condensed Consolidated Balance Sheets.

 

Note 5 — Fair Value

 

We use fair value measurements to record fair value adjustments to certain financial and non-financial assets and to determine fair value disclosures. Our marketable securities are financial assets recorded at fair value on a recurring basis.  We also have a building held for sale in Livermore, California and certain manufacturing equipment held for sale, which are measured at fair value on a non-recurring basis and included within ‘Prepaid expenses and other current assets’ in the accompanying Condensed Consolidated Balance Sheets.

 

The accounting standard for fair value defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and requires disclosures about fair value measurements. Fair value is defined as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required to be recorded at fair value, we consider the principal or most advantageous market in which we would transact and consider assumptions that market participants would use when pricing the asset or liability, such as inherent risk, transfer restrictions, and risk of nonperformance. The accounting standard for fair value establishes a fair value hierarchy that requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. 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 - Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly.

 

·                  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.

 

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Assets Measured at Fair Value on a Recurring Basis

 

We measure and report certain 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. The following table represents our fair value hierarchy for our financial assets (cash equivalents and marketable securities) measured at fair value on a recurring basis as of March 27, 2010 (in thousands):

 

		Level 1			Level 2			Total
Assets:
Cash equivalents
Money market funds		$	73,106		$	—		$	73,106
Commercial paper		—			7,999			7,999
Marketable securities
U. S. Treasury		—			140,361			140,361
Municipal bonds		—			2,068			2,068
Agency securities		—			192,423			192,423
Commercial paper		—			4,998			4,998
Total		$	73,106		$	347,849		$	420,955

 

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The Level 1 assets consist of our money market fund deposits. The Level 2 assets consist of our available-for-sale investment portfolio, which are valued utilizing a market approach. Our investments are priced by pricing vendors who provided observable inputs for their pricing without applying significant judgments. Broker’s pricing is used mainly when a quoted price is not available, the investment is not priced by our pricing vendors or when a broker price is more reflective of fair values in the market in which the investment trades. Our broker-priced investments are labeled as Level 2 investments because fair values of these investments are based on similar assets without applying significant judgments. In addition, all of our investments have a sufficient level of trading volume to demonstrate that the fair values used are appropriate for these investments.

 

Assets Measured at Fair Value on a Nonrecurring Basis

 

The Level 3 assets include a building held for sale in Livermore, California. The building held for sale is classified as Level 3 as we used unobservable inputs in its valuation reflecting our assumptions that market participants would use in pricing this asset due to the absence of recent comparable market transactions and inherent lack of liquidity. The building held for sale was valued at $0.9 million as of March 27, 2010 and December 26, 2009. We also classified certain manufacturing equipment located in Livermore, CA as held for sale as of March 27, 2010. The equipment was classified as Level 3 as we used unobservable inputs in our valuation reflecting our assumptions that market participants would use in pricing this asset due to the absence of observable market data on pricing and inherent lack of liquidity. The manufacturing equipment held for sale was valued at $0.4 million at March 27, 2010 and at $0.6 million at December 26, 2009.

 

Our fair value processes include controls that are designed to ensure appropriate fair values are recorded. Such controls include model validation, review of key model inputs, and analysis of period-over-period fluctuations and independent recalculation of prices.

 

Note 6 — Marketable Securities

 

We classify our marketable debt securities as “available-for-sale”. All marketable securities represent the investment of funds available for current operations, notwithstanding their contractual maturities. Such marketable securities are recorded at fair value and unrealized gains and losses are recorded to accumulated other comprehensive income until realized.

 

Marketable securities at March 27, 2010 consisted of the following (in thousands):

 

					Gross			Gross
		Amortized			Unrealized			Unrealized			Market
		Cost			Gains			Losses			Value
U. S. Treasury		$	140,067		$	325		$	(31	)	$	140,361
Agency Securities		192,315			220			(112		)	192,423
Obligations of states and political subdivisions		2,058			10			—			2,068
Commercial Paper		4,998			—			—			4,998
		$	339,438		$	555		$	(143	)	$	339,850

 

Marketable securities at December 26, 2009 consisted of the following (in thousands):

 

					Gross			Gross
		Amortized			Unrealized			Unrealized			Market
		Cost			Gains			Losses			Value
U. S. Treasury		$	135,061		$	300		$	(67	)	$	135,294
Agency Securities		172,670			339			(192		)	172,817
Commercial Paper		16,992			—			—			16,992
Obligations of states and political subdivisions		2,071			18			—			2,089
		$	326,794		$	657		$	(259	)	$	327,192

 

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The marketable securities with gross unrealized losses have been in a loss position for less than 12 months as of March 27, 2010 and December 26, 2009, respectively.

 

We typically invest in highly-rated securities with low probabilities of default. Our investment policy requires investments to be rated single-A or better, limits the types of acceptable investments, concentration as to security holder and duration of the investment. The net unrealized gains on our investments during the three months ended March 27, 2010 were caused primarily by changes in interest rates. When evaluating the investments for other-than-temporary impairment, we review factors such as the length of time and extent to which fair value has been below the amortized cost basis, review of current market liquidity, interest rate risk, the financial condition of the issuer, as well as credit rating downgrades.

 

We believe that the unrealized losses are not other-than-temporary. We do not have a foreseeable need to liquidate the portfolio and anticipate recovering the full cost of the securities either as market conditions improve, or as the securities mature.

 

Contractual maturities of marketable securities as of March 27, 2010 were as follows (in thousands):

 

		Amortized Cost			Market Value
Due in one year or less		$	161,029		$	161,262
Due after one year to three years		178,409			178,588
		$	339,438		$	339,850

 

Realized losses on sales and maturities of marketable securities were immaterial for the three months ended March 27, 2010 and March 28, 2009.

 

Note 7 — Allowance for Doubtful Accounts

 

A majority of our trade receivables are derived from sales to large multinational semiconductor manufacturers throughout the world. In order to monitor potential credit losses, we perform ongoing credit evaluations of our customers’ financial condition. An allowance for doubtful accounts is maintained for probable credit losses based upon our assessment of the expected collectability of all accounts receivable. The allowance for doubtful accounts is reviewed on a quarterly basis to assess the adequacy of the allowance. We take into consideration (1) any circumstances of which we are aware of a customer’s inability to meet its financial obligations; and (2) our judgments as to prevailing economic conditions in the industry and their impact on our customers. If circumstances change, and the financial condition of our customers are adversely affected and they are unable to meet their financial obligations to us, we may need to take additional allowances, which would result in an increase in our net loss.

 

We recorded a reduction in provision for doubtful debts of $0.1 million in the first quarter of fiscal 2010 primarily due to the payment of accounts receivable that was previously reserved. The allowance for doubtful accounts consisted of the following activity (in thousands):

 

		Three Months Ended
		March 27,			March 28,
		2010			2009
Beginning balance		$	9,260		$	4,220
Additions		—			5,246
Deductions		(147		)	—
Ending balance		$	9,113		$	9,466

 

Note 8 — 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 our management’s analysis of inventory levels and future sales forecasts. Once the value is adjusted, the original cost of our 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.

 

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We design, manufacture and sell a fully custom product into a market that has been subject to cyclicality and significant demand fluctuations. Probe cards are complex products, custom to a specific chip design and must be delivered on short lead-times. Probe cards are manufactured in low volumes; therefore, material purchases are often subject to minimum purchase order quantities in excess of the actual demand. It is not uncommon for us to acquire production materials and start certain production activities based on estimated production yields and forecasted demand prior to or in excess of actual demand for our wafer probe cards. These factors make inventory valuation adjustments part of our normal recurring cost of revenue. Aggregate inventory write downs were $1.2 million, and $5.1 million for the quarters ended March 27, 2010, and March 28, 2009, respectively. We retain a portion of the excess inventory until the customer’s design is discontinued. The inventory may be used to satisfy customer warranty obligations.

 

When our products have been delivered, but the revenue associated with that product is deferred because the related revenue recognition criteria have not been met, we defer the related cost of revenue. The deferred inventory costs do not exceed the deferred revenue amounts.

 

Inventories consisted of the following (in thousands):

 

		March 27,			December 26,
		2010			2009
Raw materials		$	5,600		$	2,405
Work-in-progress		14,590			11,457
Finished goods:
Deferred cost of revenue		7,143			6,097
Manufactured finished goods		4,547			5,589
		$	31,880		$	25,548

 

Note 9 — Warranty

 

We offer warranties on our products, other than certain evaluation and early adopter products that are not offered with warranty.  We also record a liability for the estimated future costs associated with customer warranty claims, which is based upon historical experience and our estimate of the level of future costs. Warranty costs are reflected in the Condensed Consolidated Statements of Operations as a cost of revenues.

 

A reconciliation of the changes in our warranty liability (included in “Accrued liabilities” in the Condensed Consolidated Balance Sheets) is as follows (in thousands):

 

		Three Months Ended
		March 27,			March 28,
		2010			2009
Warranty accrual beginning balance		$	732		$	1,098
Accrual for warranties issued during the period		(396		)	172
Settlements made during the period		(29		)	(356		)
Warranty accrual ending balance		$	307		$	914

 

Note 10 — Long Lived Assets

 

Property and equipment consisted of the following (in thousands):

 

				Fiscal Years Ended
		Useful Life		March 27,			December 26,
		(in years)		2010			2009
Machinery and equipment		5 to 7		$	117,290		$	115,938
Computer equipment and software		3 to 5		36,231			34,810
Furniture and fixtures		5		7,287			7,172
Leasehold improvements		1 to 15		75,659			71,816
				236,467			229,736
Less: Accumulated depreciation and amortization				(153,132		)	(146,365		)
				83,335			83,371
Construction-in-progress				13,773			14,387
				$	97,108		$	97,758

 

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In October 2009, we completed the acquisition of certain assets from Electroglas, Inc. (“Electroglas”).  The assets acquired included intellectual property assets representing developed technology rights related to precision motion control automation and all of the intellectual property rights of Electroglas, with the exception of certain trademark rights.  Of the total purchase price, $7.8 million was allocated to intellectual property assets, which are included in “Other Assets” in the Condensed Consolidated Balance Sheets.  Prior to this acquisition, we did not have any other intangible assets.

 

The amortization of the purchased intellectual property assets was $0.5 million for the quarter ended March 27, 2010, of which $0.3 million was charged to cost of revenues and $0.2 million was charged to selling, general and administrative expense. The purchased intellectual property assets had a weighted average amortization period of 3.97 years at March 27, 2010 and the net book value was $6.9 million at March 27, 2010.

 

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Note 11 — Comprehensive loss

 

Comprehensive 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.

 

Components of comprehensive loss were as follows (in thousands):

 

		Three Months Ended
		March 27,			March 28,
		2010			2009
Net loss		$	(38,184	)	$	(37,943	)
Unrealized gain/(loss) on investments, net		14			(412		)
Cumulative translation adjustments		(118		)	(659		)
Comprehensive loss		$	(38,288	)	$	(39,014	)

 

Components of accumulated other comprehensive income was as follows (in thousands):

 

		March 27,			December 26,
		2010			2009
Unrealized gain on marketable securities, net of tax of $299 and $299 at March 27, 2010 and December 26,2009 respectively		$	113		$	99
Cumulative translation adjustments		1,036			1,154
Accumulated other comprehensive income		$	1,149		$	1,253

 

Note 12 — Stockholders’ Equity

 

Stock Option Plans

 

We have three equity incentive plans: Incentive Option Plan and Management Incentive Option Plan (together, the “Prior Plans”), and 2002 Equity Incentive Plan (“2002 Plan”), which became effective in June 2002. Upon the effectiveness of the 2002 Plan, we ceased granting any equity awards under the Prior Plans, although forfeited, repurchased, cancelled or terminated Prior Plan shares are transferred to the 2002 Plan.

 

Stock option activity under the Prior Plans and the 2002 Plan during the three months ended March 27, 2010 is set forth below:

 

							Weighted
							Average
							Remaining		Aggregate
		Options		Weighted Average			Contractual		Intrinsic
		Outstanding		Exercise Price			Life in Years		Value
Balances, December 26, 2009		5,859,820		$	26.17
Options granted		—		—
Options exercised		(11,763	)	7.98
Options cancelled:
Forfeited		(58,170	)	35.67
Expired		(25,094	)	37.95
Balances, March 27, 2010		5,764,793		$	26.06		3.96		$	6,180,392
Vested and expected to vest at March 27, 2010		5,537,128		$	26.21		3.90		$	6,127,963
Ending Exercisable at March 27, 2010		4,334,903		$	25.80		3.63		$	5,946,310

 

There were no options granted during the quarter ended March 27, 2010. The intrinsic value of option exercises during the quarter ended March 27, 2010 was $0.1 million and cash received from stock option exercises during the quarter ended March 27, 2010 was $0.1 million. We did not realize any gross tax benefits in connection with these exercises.

 

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Restricted Stock Units

 

Activity of the restricted stock units under the 2002 Plan during the three months ended March 27, 2010 is set forth below:

 

				Weighted
				Average Grant
		Units		Date Fair Value
Restricted stock units at December 26, 2009		1,491,678		$	18.51
Awards granted		48,640		16.58
Awards released		(101,872	)	20.18
Awards cancelled		(85,127	)	18.18
Restricted stock units at March 27, 2010		1,353,319		$	18.33

 

Note 13 — Stock-Based Compensation

 

We account for all stock-based compensation to employees and directors, including grants of stock options, as stock-based compensation costs in the Condensed Consolidated Financial Statements based on the fair value measured as of the date of grant. These costs are recognized as an expense in the Condensed Consolidated Statements of Operations over the requisite service period and increase additional paid-in capital.

 

The table below shows the stock-based compensation charges included in the Condensed Consolidated Statement of Operations (in thousands):

 

		Three Months Ended
		March 27,			March 28,
		2010			2009
Stock-based compensation expense included in:
Cost of revenues		$	971		$	758
Research and development		1,393			989
Selling, general and administrative		2,894			2,824
Restructuring		—			216
Total stock-based compensation		5,258			4,787
Tax effect on stock-based compensation		—			(1,618		)
Total stock-based compensation, net of tax		$	5,258		$	3,169

 

Stock Options

 

No options were granted during the quarter ended March 27, 2010.  The following weighted-average assumptions were used in the estimated grant-date fair value calculations for stock options:

 

		Three Months Ended
		March 27,		March 28,
		2010		2009
Stock Options:
Dividend yield		—		—
Expected volatility		—	%	56.9	%
Risk-free interest rate		—	%	1.65	%
Expected term (in years)		—		4.75

 

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Employee Stock Purchase Plan

 

During the three months ended March 27, 2010 and March 28, 2009, 157,961 shares and 154,145 shares, respectively, were issued under the Employee Stock Purchase Plan (“ESPP”). The following assumptions were used in the estimated fair value calculations for the employees’ purchase rights:

 

		Three Months Ended
		March 27,		March 28,
		2010		2009
ESPP:
Dividend yield		—		—
Expected volatility		38.9 - 62.2	%	59.3 — 62.2	%
Risk-free interest rate		0.15 - 0.48	%	0.39 — 0.48	%
Expected term (in years)		0.50 - 1.00		0.50 - 1.00

 

Unrecognized Compensation Costs

 

At March 27, 2010, the unrecognized stock-based compensation, adjusted for estimated forfeitures, was as follows (in thousands):

 

					Average Expected
		Unrecognized			Recognition Period
		Expense			in years
Stock options		$	10,251		1.8
Restricted stock units		15,498			2.5
Employee Stock Purchase Plan		452			0.3
Total unrecognized share-based compensation expense		$	26,201

 

Note 14 — Net Loss per Share

 

Basic net (loss) per share is computed by dividing net (loss) by the weighted-average number of common shares outstanding for the period. Diluted net (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. Diluted loss per share for the first quarter of fiscal 2010 as well as the first quarter of fiscal 2009 was based only on the weighted-average number of shares outstanding during that period as the inclusion of any common stock equivalents would have been anti-dilutive.

 

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

 

		Three Months Ended
		March 27,			March 29,
		2010			2008
Basic net loss per share
Numerator:
Net loss		$	(38,184	)	$	(37,943	)
Denominator:
Weighted average common stock outstanding		49,890			49,201
Diluted net loss per share
Numerator:
Net loss		$	(38,184	)	$	(37,943	)
Denominator:
Weighted-average shares used in computing basic net loss per share		49,890			49,201
Add stock options, restricted stock units, ESPP, warrants and common stock subject to repurchase		—			—
Weighted average shares used in computing diluted net loss per share		49,890			49,201

 

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

 

		Three Months Ended
		March 27,		March 28,
		2010		2009
Options to purchase common stock		4,979		5,781
Restricted stock units		75		46
Employee Stock Purchase Plan		52		50
Total potentially dilutive securities		5,106		5,877

 

Note 15 — Income Taxes

 

The income tax provision for the three months ended March 27, 2010 primarily reflects taxes on our non-U.S. operations.  We maintain a valuation allowance for our Federal, state, and certain non-U.S. jurisdictions’ deferred tax assets.  The income tax benefit for the three months ended March 28, 2009 primarily reflects our realizable tax benefit from loss carrybacks.

 

For the quarter ended June 27, 2009, we established a valuation allowance of $44.7 million against the excess tax benefits, associated with Federal and state, to reduce them to their estimated net realizable value.  Significant management judgment is required in determining any valuation allowance recorded against deferred tax assets.  In evaluating the ability to recover deferred tax assets, we considered available positive and negative evidence giving greater weight to recent cumulative losses, ability to carryback losses against prior taxable income and lesser weight to projected financial results commensurate with its objective verifiability, the forecast of future taxable income including the reversal of temporary differences and the implementation of feasible and prudent tax planning strategies.  The valuation allowance is reviewed quarterly and will be maintained until sufficient positive evidence exists to support the reversal of the valuation allowance.  Under current tax laws, this valuation allowance will not limit our ability to utilize Federal and state deferred tax assets provided we can generate sufficient future taxable income.

 

Accounting standards related to accounting for uncertainty in income taxes recognized in an enterprise’s financial statements prescribe a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return as well as guidance on derecognition of tax benefits.  We classify interest and penalties related to uncertain tax positions as part of the income tax provision. Related to the unrecognized tax benefits, we accrued interest of approximately $83,000 and zero penalties and approximately $120,000 and zero penalties for the three months ended March 27, 2010 and March 28, 2009, respectively, and total accrued interest and penalties related to the unrecognized tax benefits was $0.9 million as of March 27, 2010.

 

The amount of income taxes we pay is subject to ongoing audits by Federal, state and non-U.S. tax authorities which might result in proposed assessments.  Our estimate for the potential outcome for any uncertain tax issue is judgmental in nature. However, we believe that we have adequately provided for any reasonably foreseeable outcome related to those matters. Our future results may include favorable or unfavorable adjustments to our estimated tax liabilities in the period the assessments are made or resolved or when statutes of limitation on potential assessments expire. As of March 27, 2010, changes to our uncertain tax positions in the next 12 months, that are reasonably possible, are not expected to have a significant impact on our financial position or results of operations.

 

Our effective tax rate may vary from period to period based on changes in estimated taxable income or loss by jurisdiction, changes to the valuation allowance, changes to Federal, state or foreign tax laws, future expansion into areas with varying country, state, and local income tax rates, deductibility of certain costs and expenses by jurisdiction.

 

Note 16 — Commitments and Contingencies

 

Environmental Matters

 

We are 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. We

 

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believe that we comply in all material respects with the environmental laws and regulations that apply to us, 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. No provision has been made for loss from environmental remediation liabilities associated with our facilities because we believe that it is not probable that a liability has been incurred as of March 27, 2010.

 

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

 

Legal Matters

 

From time to time, we may be subject to legal proceedings and claims in the ordinary course of business. For the fiscal quarter ended March 27, 2010, we were not involved in any material legal proceedings, other than the proceedings summarized below. In the future we may become a party to additional legal proceedings, including proceedings designed to protect our intellectual property rights that require us to spend significant resources.

 

Patent Litigation

 

We initiated patent infringement litigation in the United States against Phicom Corporation, a Korea corporation, with a current operating name of TSC Memsys Corp., here referred to as Phicom, and against Micronics Japan Co., Ltd., a Japan corporation, and its U.S. subsidiary, both collectively ‘‘Micronics Japan.’’ In 2005, we filed a patent infringement lawsuit in the 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 our wafer probe cards—U.S. Patent Nos. 5,974,662, 6,246,247, 6,624,648, and 5,994,152. In 2006, we also filed an amended complaint in the same Oregon district court adding two additional patents to the litigation—U.S. Patent Nos. 7,073,254 and 6,615,485. Also in 2006, we 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 our wafer probe cards—U.S. Patent Nos. 6,246,247, 6,509,751, 6,624,648, and 7,073,254.  The relief sought in the complaints includes past damages and injunctive relief.

 

These two district court actions were stayed pending resolution of the complaint that we filed with the United States International Trade Commission, or ITC, on or about November 13, 2007, seeking institution of a formal investigation into the activities of Micronics Japan and Phicom. The requested investigation as filed encompassed U.S. Patent Nos. 5,994,152, 6,509,751, 6,615,485, 6,624,648 and 7,225,538 and alleged 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 and alleged 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 us.

 

In November 2009 in response to a request for review of prior decisions by an ITC Administrative Law Judge, the Commission issued a decision, which is termed a ‘‘final determination,’’ finding certain of FormFactor’s asserted patent claims valid, but not infringed, and other asserted patent claims invalid.  The Commission did not find a violation of Section 337 of the Tariff Act of 1930 and terminated the investigation without issuing an exclusionary order against any products. We did not appeal the final determination to the Court of Appeals for the Federal Circuit. The stay in the disctrict court action against Micronics has been lifted and we anticipate that the stay in the district court action against Phicom will also be lifted in the next several weeks, in which case both actions will proceed forward.

 

In addition to the United States litigations, we also initiated actions in Seoul, South Korea against Phicom. In 2004 we filed two actions in Seoul Southern District Court, located in Seoul, South Korea, against Phicom alleging infringement of our Korean Patent Nos. 252,457, 324,064, 278,342 and 399,210. In the action alleging infringement of our Korean Patent Nos. 278,342 and 399,210, the Seoul Southern District Court closed the case after rejecting our petition. We filed an appeal to the Seoul High Court regarding the decisions on our Korean Patent Nos. 278,342 and 399,210, but elected to voluntarily withdraw the appeal. The Seoul Southern District Court also rendered decisions unfavorable to us related to our Korean Patent Nos. 252,457 and 324,064 and the Seoul High Court dismissed our appeals of those decisions. The Seoul High Court decisions are subject to a final appeal to the Korea Supreme Court but we elected not to file such appeals. We also in 2006 filed in the Seoul Central District Court two actions, including a preliminary injunction action, against Phicom alleging infringement of certain claims of our Korea Patent No. 252,457. The Seoul Central District Court did not accept the preliminary injunction action and both actions have been closed.

 

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In response to our 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 our 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 our Korean Patent Nos. 278,342 and 399,210; and in 2006, issued a ruling holding invalid certain claims of our Korean Patent No. 324,064. We appealed those rulings to the Korea Supreme Court, which affirmed the Korea Patent Court rulings and dismissed our appeals. In 2006, the Korea Patent Court issued a ruling upholding the validity of our Korean Patent No. 252,457. Phicom appealed the Patent Court ruling on Korean Patent No. 252,457 to the Korea Supreme Court. In June 2008, the Korea Supreme Court reversed the Patent Court ruling, finding invalid certain claims of our Korean Patent No. 252,457 and remanding the case for further trial. We also filed a correction trial with KIPO on certain claims of Korean Patent No. 252,457. KIPO has issued decisions unfavorable to us in both of the actions relating to our Korean Patent No. 252,457, and those actions are now pending before the Korea Patent Court.

 

Additionally, one or more third parties have initiated challenges in the U.S. and in foreign patent offices against certain of the above and other of our patents. These actions include re-examination proceedings filed in the U.S. Patent and Trademark Office, USPTO, against three of our U.S. patents that were at issue in the ITC investigation. In two of the USPTO reexamination proceedings, all of the challenged claims have been finally rejected as non-patentable, and we have requested a review of those rejections; in the third USPTO reexamination proceeding, the challenged claims have not been finally rejected. The foreign actions include proceedings in Korea against two of our Korean patents, and proceedings in Taiwan against four of our Taiwan patents.

 

No provision has been made for patent-related litigation because we believe that it is not probable that a liability had been incurred as of March 27, 2010. We 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 we and certain of our then officers, including one former officer who was a director at the time of filing, 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 were consolidated.  The plaintiffs filed these actions following our restatement of our 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. On July 25, 2008, the court granted the defendants’ 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 again alleged violations of Sections 10(b) and 20(a), and Rule 10b-5 of the Securities Exchange Act of 1934. Plaintiffs sought to recover unspecified monetary damages, equitable relief and attorneys’ fees and costs. On July 14, 2009, the court issued a ruling granting motions to dismiss the Second Amended Complaint without leave to amend. On July 28, 2009, plaintiffs filed a Motion to Alter or Amend the Judgment and to Uphold a Revised, Narrowed Second Amended Complaint. On September 14, 2009, the court issued a ruling denying plaintiffs’ Motion to Alter or Amend the Judgment and to Uphold a Revised, Narrowed Second Amended Complaint. Plaintiffs appealed to the Court of Appeals for the Ninth Circuit the Judgment dismissing the case and the Court’s ruling denying their Motion to Alter or Amend the Judgment, but thereafter determined to withdraw the appeal. Upon motion by the plaintiffs/appellants, the Ninth Circuit dismissed the appeal, with each side bearing its own costs.

 

No provision was made for the securities litigation because we believe that it is not probable that a liability had been incurred as of March 27, 2010.

 

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 we were named as a nominal defendant and certain of our then directors and then officers were 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, another plaintiff filed a second purported stockholder derivative 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,

 

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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 derivative actions following our 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 alleged that the individual defendants breached their fiduciary duties and violated applicable law by issuing, and permitting our company to issue, materially false and misleading statements regarding our company’s business and financial results prior to the restatements. The plaintiffs sought to recover monetary damages, and attorneys’ fees and costs. Plaintiffs thereafter voluntarily dismissed without prejudice the two derivative actions, which had been consolidated. Although the cases have been dismissed, plaintiffs have the right to re-file the actions in the future. The two derivative actions, which had been consolidated, have been dismissed without prejudice, though two plaintiffs have the right to re-file the actions at some point in the future.

 

No provision was made for the stockholder derivative litigation because we believe that it is not probable that a liability had been incurred as of March 27, 2010.

 

Commercial Litigation

 

On February 20, 2009, we filed a complaint for breach of contract, common counts, account stated and injunctive relief against Spansion, LLC, a Delaware limited liability company (‘‘Spansion’’), in the state superior court located in Santa Clara County, California. The complaint alleges that Spansion, in breach of Spansion’s obligations under a purchase agreement entered into by us and Spansion, has failed to pay us for probe cards that we designed, developed and manufactured pursuant to several purchase orders placed by Spansion with us pursuant to the agreement. The complaint states that as of February 13, 2009, Spansion owed us $8,094,533 for probe cards delivered by us and not paid for by Spansion. In the complaint, we are seeking (i) payment of at least $8,094,533, (ii) a temporary protective order and an injunction enjoining Spansion from assigning or in any way divesting itself of any monies that we believe Spansion received from a certain third party entity, (iii) a prejudgment writ of attachment in favor of us over Spansion’s corporate assets and property, (iv) costs and (v) attorney’s fees. Prior to making any appearance or filing any answer in the action, Spansion filed for protection under Chapter 11 of the Bankruptcy Laws of the United States, which served to stay our complaint against Spansion. In November 2009, we sold all rights, title and interest in the bankruptcy claim to a third party in exchange for net proceeds of less than full value of the asserted claim.

 

Indemnification Arrangements

 

We from time to time in the ordinary course of our business enter into contractual arrangements with third parties that include indemnification obligations. Under these contractual arrangements, we have agreed to defend, indemnify and/or hold the third party harmless from and against certain liabilities. These arrangements include indemnities in favor of customers in the event that our wafer probe cards infringe a third party’s intellectual property and our lessors in connection with facility leasehold liabilities that we may cause. In addition, we have entered into indemnification agreements with our directors and certain of our officers, and our bylaws contain indemnification obligations in favor of our directors, officers and agents. These indemnity arrangements may limit the type of the claim, the total amount that we can be required to pay in connection with the indemnification obligation and the time within which an indemnification claim can be made. The duration of the indemnification obligation may vary, and for most arrangements, survives the agreement term and is indefinite. 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, the unique facts and circumstances involved in each particular contractual arrangement and in each potential future claim for indemnification, and the contingency of any potential liabilities upon the occurrence of events that are not reasonably determinable. We have not had any requests for indemnification under these arrangements. We have not recorded any liabilities for these indemnification arrangements on our condensed consolidated balance sheet as of March 27, 2010.

 

Substantially all of our indemnities and commitments provide for limitations on the maximum potential future payments we could be obligated to make. However, we are unable to estimate the maximum amount of liability related to our indemnities and commitments because such liabilities are contingent upon the occurrence of events which are not reasonably determinable. Our management believes that any liability for these indemnities and commitments would not be material to our accompanying consolidated financial statements.

 

Note 17 — Derivative Financial Instruments

 

We operate and sell our products in various global markets. As a result, we are exposed to changes in foreign currency exchange rates. We utilize foreign currency forward contracts to hedge against future movements in foreign

 

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exchange rates that affect certain existing foreign currency denominated assets and liabilities. Under this program, our strategy is to have increases or decreases in our foreign currency exposures offset by gains or losses on the foreign currency forward contracts to mitigate the risks and volatility associated with foreign currency transaction gains or losses. We do not use derivative financial instruments for speculative or trading purposes. Our derivative instruments, which are generally settled in the same quarter, are not designated as hedging instruments. We record the fair value of these contracts as of the end of our reporting period to our consolidated balance sheet with changes in fair value recorded in our consolidated statement of operations in “Other income (expense), net” for both realized and unrealized gains and losses.

 

As of March 27, 2010, 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 March 27, 2010 (in thousands):

 

		Contract Amount (Local Currency)		Contract Amount (U.S. Dollars)
Japanese Yen		509,321		$	5,497
Taiwan Dollar		4,492		141
Korean Won		1,584,462		1,382
Total USD notional amount of outstanding foreign exchange contracts				$	7,020

 

The contracts were entered into on March 26, 2010 and mature on March 30, 2010. There was no change in the value of these contracts as of March 27, 2010. Additionally, no gains or losses relating to the outstanding derivative contracts were recorded in the three months ending March 27, 2010.

 

The location and amount of gains and losses related to non-designated derivative instruments that matured in the three months ended March 27, 2010 and March 28, 2009 in the Condensed Consolidated Statement of Operations are as follows (in thousands):

 

Derivatives Not Designated as Hedging		Location of Gain or (Loss) Recognized		Amount of Gain or (Loss) Recognized on Derivatives
Instruments		on Derivatives		March 27, 2010			March 28, 2009
Foreign exchange forward contracts		Other Income (expense), net		$	(181	)	$	2,205

 

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 26, 2009, 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

 

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