UTSTARCOM HOLDINGS CORP. - Quarter Report: 2010 June (Form 10-Q)

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

(Mark One)

 

x

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

 

For the quarterly period ended June 30, 2010

 

OR

 

o

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

 

For the transition period from     to                        

 

COMMISSION FILE NUMBER 000-29661

 

UTSTARCOM, INC.

(Exact name of registrant as specified in its charter)

 

 

Registrant’s telephone number, including area code: (510) 864-8800

 

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 has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  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 the definitions 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 July 30, 2010 there were 131,905,838 shares of the registrant’s common stock outstanding, par value $0.00125.

 

 

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TABLE OF CONTENTS

 

PART I—FINANCIAL INFORMATION	3
ITEM 1—CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)	3
ITEM 2—MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS	23
ITEM 3—QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK	38
ITEM 4—CONTROLS AND PROCEDURES	39
PART II—OTHER INFORMATION	41
ITEM 1—LEGAL PROCEEDINGS	41
ITEM 1A—RISK FACTORS	41
ITEM 2—UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS	41
ITEM 3—DEFAULTS UPON SENIOR SECURITIES	42
ITEM 4—REMOVED AND RESERVED	42
ITEM 5—OTHER INFORMATION	42
ITEM 6—EXHIBITS	42
SIGNATURES	44

 

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PART I—FINANCIAL INFORMATION

 

ITEM 1—CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

UTSTARCOM, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)

 

		June  30,			December 31,
		2010			2009
		(In thousands, except par value)
ASSETS
Current assets:
Cash and cash equivalents		$	306,841		$	265,843
Short-term investments		1,155			1,038
Accounts receivable, net of allowances for doubtful accounts of $30,135 and $26,065, respectively		44,274			42,346
Notes receivable		930			1,427
Inventories		59,090			72,300
Deferred costs		102,231			130,453
Prepaids and other current assets		56,970			47,906
Short-term restricted cash		22,162			26,448
Total current assets		593,653			587,761
Property, plant and equipment, net		5,186			130,612
Long-term investments		9,062			8,402
Long-term deferred costs		180,777			184,978
Long-term deferred tax assets		5,601			4,822
Other long-term assets		19,016			12,536
Total assets		$	813,295		$	929,111
LIABILITIES AND EQUITY
Current liabilities:
Accounts payable		$	30,159		$	54,115
Income taxes payable		—			1,130
Customer advances		147,398			120,364
Deferred revenue		162,443			170,777
Deferred tax liabilities		3,890			3,890
Other current liabilities		97,207			142,894
Total current liabilities		441,097			493,170
Long-term deferred revenue		108,232			160,932
Other long-term liabilities		26,927			18,858
Total liabilities		576,256			672,960
Commitments and contingencies (Note 10)
Equity:
UTStarcom, Inc. stockholders’ equity:
Common stock: $0.00125 par value; 750,000 authorized shares; 131,905 and 130,095 shares issued and outstanding at June 30, 2010 and December 31, 2009, respectively		154			153
Additional paid-in capital		1,256,049			1,251,532
Accumulated deficit		(1,092,102		)	(1,067,174		)
Accumulated other comprehensive income		72,156			70,848
Total UTStarcom, Inc. stockholders’ equity		236,257			255,359
Noncontrolling interests		782			792
Total equity		237,039			256,151
Total liabilities and equity		$	813,295		$	929,111

 

See accompanying notes to the condensed consolidated financial statements.

 

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UTSTARCOM, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)

 

		Three months ended June 30,						Six months ended June 30,
		2010			2009			2010			2009
		(in thousands, except per share data)
Net sales
Products		$	62,615		$	65,735		$	131,795		$	171,247
Services		10,550			14,428			22,217			28,256
		73,165			80,163			154,012			199,503
Cost of net sales
Products		43,507			87,265			89,789			174,302
Services		6,786			8,736			14,142			19,387
Gross profit (loss)		22,872			(15,838		)	50,081			5,814
See Note 16 for net sales to related party and associated cost of net sales
Operating expenses:
Selling, general and administrative		21,162			26,971			51,352			81,151
Research and development		9,078			16,229			19,101			37,737
Restructuring		(216		)	27,757			7,291			32,576
Net gain on divestitures		(2,056		)	(1,357		)	(3,808		)	(1,357		)
Total net operating expenses		27,968			69,600			73,936			150,107
Operating loss		(5,096		)	(85,438		)	(23,855		)	(144,293		)
Interest income		450			599			798			1,348
Interest expense		(68		)	(230		)	(138		)	(520		)
Other income (expense), net		(4,767		)	5,429			100			(1,785		)
Loss before income taxes		(9,481		)	(79,640		)	(23,095		)	(145,250		)
Income tax benefit (expense)		510			(4,659		)	(1,843		)	(6,483		)
Net loss		(8,971		)	(84,299		)	(24,938		)	(151,733		)
Net loss attributable to noncontrolling interests		6			16			10			17
Net loss attributable to UTStarcom, Inc.		$	(8,965	)	$	(84,283	)	$	(24,928	)	$	(151,716	)
Net loss per share attributable to UTStarcom, Inc.- Basic and Diluted		$	(0.07	)	$	(0.66	)	$	(0.19	)	$	(1.20	)
Weighted average shares used in per-share calculation - Basic and Diluted		130,311			127,160			129,866			126,450

 

See accompanying notes to the condensed consolidated financial statements.

 

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UTSTARCOM, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)

 

		Six months ended June 30,
		2010			2009
		(In thousands)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss		$	(24,938	)	$	(151,733	)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization		3,410			6,918
Amortization of deferred gain on sale-leaseback		(107		)	—
Provision for (recovery of) doubtful accounts		4,161			(2,129		)
Deferred income taxes		(712		)	1,752
Stock-based compensation expense		4,547			6,427
Other-than-temporary impairment of equity investment		—			3,798
Net gain on divestitures		(3,808		)	(1,357		)
Gain on settlement of an investment interest		(481		)	—
Other		42			(503		)
Changes in operating assets and liabilities, net of dispositions:
Accounts receivable		(9,928		)	96,273
Inventories and deferred costs		44,111			30,024
Other assets		(9,468		)	61,086
Accounts payable		(25,341		)	(119,405		)
Income taxes payable		207			2,182
Customer advances		27,313			33,606
Deferred revenue		(53,489		)	(21,133		)
Other liabilities		(40,483		)	17,058
Net cash used in operating activities		(84,964		)	(37,136		)
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment		(1,826		)	(1,337		)
Proceeds from divestiture		1,500			—
Proceeds from sale of building (net of tax payments)		123,955			—
Change in restricted cash		2,998			1,404
Proceeds from settlement of an investment interest		481			—
Purchase of an investment interest		(550		)	—
Purchase of short-term investments		(9,252		)	(5,613		)
Proceeds from sale of short-term investments		5,415			6,421
Other		971			392
Net cash provided by investing activities		123,692			1,267
CASH FLOWS FROM FINANCING ACTIVITIES:
Repurchase of common stock		(30		)	—
Other		—			(389		)
Net cash used in financing activities		(30		)	(389		)
Effect of exchange rate changes on cash and cash equivalents		2,300			(749		)
Net increase (decrease) in cash and cash equivalents		40,998			(37,007		)
Cash and cash equivalents at beginning of period		265,843			309,603
Cash and cash equivalents at end of period		$	306,841		$	272,596

 

See accompanying notes to the condensed consolidated financial statements.

 

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UTSTARCOM, INC.

 

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

 

NOTE 1 - BASIS OF PRESENTATION AND LIQUIDITY

 

The accompanying unaudited condensed consolidated financial statements include the accounts of UTStarcom, Inc. (“Company”) and its wholly and majority owned subsidiaries. All significant intercompany accounts and transactions have been eliminated in the preparation of the condensed consolidated financial statements. The noncontrolling interests in consolidated subsidiaries are shown separately in the condensed consolidated financial statements.

 

The accompanying unaudited condensed consolidated financial statements have been prepared by the Company pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) have been condensed or omitted pursuant to such rules and regulations. The December 31, 2009 condensed consolidated balance sheet was derived from audited financial statements, but does not include all disclosures required by accounting principles generally accepted in the United States. However, the Company believes that the disclosures are adequate to make the information presented not misleading. These condensed consolidated financial statements should be read in conjunction with the Company’s December 31, 2009 financial statements, including the notes thereto, and the other information set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results may be different. See the Company’s 2009 Annual Report for discussion of the Company’s critical accounting policies and estimates.

 

In the opinion of management, the accompanying unaudited condensed consolidated financial statements reflect all adjustments (consisting of only normal recurring adjustments) considered necessary for a fair statement of the Company’s financial condition, the results of its operations and its cash flows for the periods indicated. The results of operations for the three and six months ended June 30, 2010 are not necessarily indicative of the operating results for the full year.

 

In December 2009, the Company entered into a Sales Leaseback Agreement for the sale of its manufacturing, research and development, and administrative offices facility in Hangzhou, China to a third party for approximately $138.8 million with leaseback of approximately one-third of the facility. On May 31, 2010, the Company and the buyer agreed that all conditions precedent to the closing had been met, the sale was consummated and the leaseback commenced on June 1, 2010. As of May 31, 2010, the Company had received all of the sales proceeds. See Note 7 for additional information on sale-leaseback transaction.

 

On February 1, 2010, the Company entered into agreements for a strategic relationship with Beijing E-town International Investment and Development Co., Ltd (“BEIID”) which includes an investment of $48.5 million in the Company’s common stock by BEIID, and two unrelated investment funds, Elite Noble Limited and Shah Capital Opportunity Fund LP. These investments are expected to close in the third quarter of 2010.

 

Management believes that both the Company’s China and non-China operations have sufficient liquidity to finance working capital and capital expenditure needs during the next 12 months. There can be no assurance that additional financing, if required, will be available on terms satisfactory to the Company or at all, and if funds are raised in the future through issuance of preferred stock or debt, these securities could have rights, privileges or preference senior to those of the Company’s common stock and newly issued debt could contain debt covenants that impose restrictions on the Company’s operations. Further, any sale of newly issued debt or equity securities could result in additional dilution to the Company’s current shareholders.

 

NOTE 2 - ACCOUNTING POLICIES AND RECENT ACCOUNTING PRONOUNCEMENTS

 

Earnings Per Share

 

Basic earnings per share (“EPS”) is computed by dividing net income (loss) available to common stockholders by the weighted average number of shares of the Company’s common stock outstanding during the period, which excludes nonvested restricted stock. Diluted EPS presents the amount of net income (loss) available to each share of common stock outstanding during the period plus each share of common stock that would have been outstanding assuming the Company had issued shares of common stock for all dilutive potential common shares outstanding during the period. The Company’s potentially dilutive common shares include

 

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outstanding stock options, nonvested restricted stock, restricted stock units and Employee Stock Purchase Plan (“ESPP”) shares prior to termination of the ESPP effective May 15, 2009, which are reflected in diluted net income per share by application of the treasury stock method. Under the treasury stock method, the amount that the employee must pay for exercising stock options, the amount of stock-based compensation cost for future services that the Company has not yet recognized, and the amount of tax benefit that would be recorded in additional paid-in capital upon exercise are assumed to be used to repurchase shares. For the three and six months ended June 30, 2010 and 2009, no potential common shares were dilutive because of the net loss in the periods. Potential shares of common stock of approximately 8.5 million and 13.6 million were excluded from the diluted per share calculation for the three months ended June 30, 2010 and 2009, respectively, while 8.9 million and 14.4 million were excluded from the diluted per share calculation for the six months ended June 30, 2010 and 2009, respectively, because to include them would have been anti-dilutive for the periods.

 

Fair Value

 

Pursuant to the accounting guidance for fair value measurements and its subsequent updates, 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. As such, fair value is a market-based measurement that should be determined based on assumptions that market participants would use in pricing an asset or liability. The accounting guidance also establishes a three-tier fair value hierarchy which requires the Company to use observable market data, when available, and to minimize the use of unobservable inputs when determining fair value. The fair value hierarchy prioritizes the inputs into three levels that may be used in measuring fair value as follows:

 

Level 1 - observable inputs such as quoted prices in active markets for identical assets or liabilities.

 

Level 2 - inputs other than the quoted prices in active markets for identical assets or liabilities that are observable either directly or indirectly.

 

Level 3 - unobservable inputs based on the Company’s assumptions.

 

In January 2010, the Financial Accounting Standards Board (“FASB”) issued amended standards that require additional fair value disclosures. These disclosure requirements are effective in two phases. In the first quarter of 2010, the Company adopted the requirements for disclosures about inputs and valuation techniques used to measure fair value as well as disclosures about significant transfers between hierarchy levels. Beginning in the first quarter of 2011, these amended standards will require presentation of disaggregated activity within the reconciliation for fair value measurements using significant unobservable inputs (Level 3). These amended standards do not significantly impact the Company’s consolidated financial statements.

 

At June 30, 2010, the Company had no assets and liabilities measured at fair value on a recurring basis. The Company’s money market funds, which are included in cash and cash equivalents, are recorded at cost which approximates fair value, classified within Level 1 of the fair value hierarchy. The fair value of certain of the Company’s financial instruments that are not measured at fair value, including accounts receivable, accounts payable, and other current liabilities, approximates the carrying amount because of their short maturities.

 

During the six months ended June 30, 2010, the Company had no assets and liabilities measured at fair value on a non-recurring basis. At December 31, 2009, the Company determined as a result of the sale leaseback transaction entered into in December 2009 (see Note 7) that the net book value of its Hangzhou facility was in excess of its fair value. Due to the apparent decline in value, the Company conducted a recoverability test for this entity-wide asset and determined the carrying value of the net assets of the Company exceeded the undiscounted cash flows expected to result from the use and eventual disposition of the asset group. In the Company’s assessment of fair value, management placed primary reliance on the market approach (the third party offer). The result of this analysis reduced the Company’s overall assessment of fair value of the property by $33.3 million. Accordingly, the Company recorded a non-cash impairment charge of $33.3 million during the fourth quarter of 2009. The Company’s overall assessment of fair value of the property at December 31, 2009 was based on Level 2 inputs.

 

Variable Interest Entities

 

In June 2009, the FASB issued authoritative guidance requiring an enterprise to perform an analysis to determine whether the enterprise’s variable interest or interests give it a controlling financial interest in a variable interest entity. This analysis identifies the primary beneficiary of a variable interest entity as one with the power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance and the obligation to absorb losses of the entity that could potentially be significant to the variable interest. The Company adopted this new standard in the first quarter of fiscal year 2010. See Note 17 for the impact of the adoption of the guidance on the Company’s consolidated financial statements.

 

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Recent Accounting Pronouncements Not Yet Adopted

 

In September 2009, the FASB issued new standards for revenue recognition with multiple deliverables. These new standards impact the determination of when the individual deliverables included in a multiple-element arrangement may be treated as separate units of accounting. Additionally, these new standards modify the manner in which the transaction consideration is allocated across the separately identified deliverables by no longer permitting the residual method of allocating arrangement consideration. These new standards are effective for the Company beginning in the first quarter of fiscal year 2011, however early adoption is permitted. The Company is currently assessing the potential impact, if any, of the guidance on its consolidated financial statements.

 

In September 2009, the FASB issued new standards for the accounting for certain revenue arrangements that include software elements. These new standards amend the scope of pre-existing software revenue guidance by removing from the guidance non-software components of tangible products and certain software components of tangible products. These new standards are effective for the Company beginning in the first quarter of fiscal year 2011, however early adoption is permitted. The Company is currently assessing the potential impact, if any, of the guidance on its consolidated financial statements.

 

NOTE 3—DIVESTITURES

 

IP Messaging and US PDSN Assets

 

In June 2010, the Company completed a sale of its non-core IP Messaging and US PDSN Assets as part of its strategy to focus on core IP-based product offerings. The divested assets were located in North America, Caribbean, and Latin America regions and were part of the Multimedia Communications segment. Consideration for the approximately $1.7 million of net liabilities transferred included approximately $0.4 million cash proceeds plus potential additional contingent consideration of up to $1.6 million. A gain of $2.1 million, net of taxes, was recognized in June 2010 as a reduction to operating expenses. The Company determined that the sale of these non-core product lines did not meet the criteria for presentation as a discontinued operation as these non-core product lines did not meet the definition of a component of an entity.

 

Sale of Remote Access Server product line

 

In January 2010, the Company completed a sale of certain assets and liabilities related to its Remote Access Server (“RAS”) product line and received total consideration of approximately $1.5 million. The primary RAS product was the Total Control 1000 Transaction Gateway, which offers the market a proven processing platform for carrier-class transaction network service providers and enterprises for dial-up connectivity. In the first quarter of 2010, the Company transferred net liabilities of approximately $0.3 million in connection with this transaction and recorded a net gain of $1.8 million as a reduction of operating expenses. The Company determined that the divestiture of the RAS product line did not meet the criteria for presentation as a discontinued operation as the RAS product line did not meet the definition of component of an entity.

 

UTStarcom Personal Communications LLC (PCD)

 

On July 1, 2008, the Company completed the sale of UTStarcom Personal Communications LLC, a wholly-owned subsidiary of the Company (“PCD”), to Personal Communications Devices, LLC (“PCD LLC”). Concurrent with the closing of the divestiture transaction, the Company entered into a three-year supply agreement with PCD LLC whereby the Company indicated its intent to supply handset products to PCD LLC. In connection with the wind down of our Korea operations, in December 2008, we furnished PCD LLC with 180-day’s notice of termination of the supply agreement.

 

On June 30, 2009, the Company entered into a Settlement Agreement and Release (the “Settlement Agreement”) with PCD LLC. Under the Settlement Agreement, the Company waived its right to any earnout payments and granted a call option to PCD LLC for the Company’s $1.6 million investment in the equity securities of PCD LLC.  The Company also agreed to pay PCD LLC a total of $11.1 million which included warranty costs of approximately $8.4 million (see Note 8) and a reduction of revenue of approximately $2.7 million. In addition to the $11.1 million claim settlement, the Company recorded an additional $17.6 million of costs for inventory write-downs to net realizable value, write-downs of excess inventory and warranty reserves related to transactions with PCD LLC. The Company recorded these transactions in the second quarter of 2009, resulting in a decrease in revenue of approximately $2.7 million and an increase in cost of net sales of $26.0 million.

 

Korea operations

 

On July 31, 2009, the Company completed a sale of its Korea operations to an entity founded by a former employee and received total consideration of approximately $2.0 million. In connection with this transaction, the Company recorded a net loss of $1.3 million during 2009. Included in this amount was $2.2 million of foreign currency losses previously carried in accumulated other

 

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comprehensive income that were realized upon completion of sale and liquidation of the subsidiary. The Company determined that the divestiture of Korea operations did not meet the criteria for presentation as a discontinued operation as the Korea operations did not meet the definition of component of an entity.

 

Sale of Assets to Marvell Technology Group Ltd

 

In February 2006, the Company sold substantially all of the assets and selected liabilities of its semiconductor design business division to Marvell Technology Group Ltd. (“Marvell”). In connection with the sale of assets, the Company entered into a supply agreement with Marvell to purchase chipsets for the Company’s handset products over the next five years. The value allocated to the supply agreement of $20.2 million has been amortized in proportion to the quantities of chipsets purchased under the supply agreement. During the first quarter of 2009, the Company revised its estimates of customer demand for certain handset products and determined that future chipset purchases from Marvell would be negligible. As a result, the Company fully amortized against cost of goods sold the remaining value of the supply agreement of $8.5 million in the three months ended March 31, 2009.

 

NOTE 4 - COMPREHENSIVE LOSS

 

Total comprehensive loss for the three and six months ended June 30, 2010 and 2009 consisted of the following:

 

		Three months ended June 30,						Six months ended June 30,
		2010			2009			2010			2009
		(in thousands)
Net loss		$	(8,971	)	$	(84,299	)	$	(24,938	)	$	(151,733	)
Other Comprehensive income
Reclassification for realization of previously unrealized (gains) losses, net of tax		—			4,011			—			3,313
Foreign currency translation		3,609			(2,657		)	1,308			(2,084		)
Comprehensive loss		(5,362		)	(82,945		)	(23,630		)	(150,504		)
Comprehensive loss attributable to noncontrolling interests (1)		(6		)	(16		)	(10		)	(17		)
Comprehensive loss attributable to UTStarcom, Inc.		$	(5,356	)	$	(82,929	)	$	(23,620	)	$	(150,487	)

 

(1)    Comprehensive loss attributable to noncontrolling interests consisted solely of net loss.

 

The changes in noncontrolling interests during the six months ended June 30, 2010 and 2009 were as follows:

 

		Six months ended June 30,
		2010			2009
		(in thousands)
Balance at beginning of period		$	792		$	808
Comprehensive loss attributable to noncontrolling interests		(10		)	(17		)
Balance at end of period		$	782		$	791

 

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NOTE 5 — BALANCE SHEET DETAILS

 

The following tables provide details of selected balance sheet items:

 

		June 30,			December 31,
		2010			2009
		(in thousands)
Inventories:
Raw materials		$	8,861		$	18,863
Work in process		21,715			12,881
Finished goods (1)		28,514			40,556
Total		$	59,090		$	72,300

 

(1)                                  Includes finished goods at customer sites of approximately $21.8 million and $33.8 million at June 30, 2010 and December 31, 2009, respectively, for which the customer has taken possession, but based on specific contractual terms, title has not yet passed to the customer.

 

Inventories of approximately $2.9 million held by the Company’s manufacturing outsource partner are recorded in prepaids and other current assets in the condensed consolidated balance sheet at June 30, 2010.

 

		June 30,			December 31,
		2010			2009
		(in thousands)
Property, plant and equipment, net:
Buildings		$	234		$	184,436
Leasehold improvements		14,272			15,422
Automobiles		4,126			4,243
Software		36,936			37,240
Equipment and Furniture		145,914			172,214
Others		2,716			1,690
Total			204,198			415,245
Less: accumulated depreciation and impairment		(199,012		)	(284,633		)
Total (see Note 7)		$	5,186		$	130,612

 

		June 30,			December 31,
		2010			2009
		(in thousands)
Other current liabilities:
Accrued contract costs		$	18,843		$	27,657
Accrued payroll and compensation		26,634			35,871
Warranty costs		9,592			16,150
Accrued other taxes		15,298			15,863
Restructuring costs		9,903			21,707
Deposit received for sale of building		—			7,323
Others		16,937			18,323
Total		$	97,207		$	142,894

 

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NOTE 6 - CASH, CASH EQUIVALENTS, INVESTMENTS AND FAIR VALUE MEASUREMENTS

 

Cash and cash equivalents, consisting primarily of bank deposits and money market funds, are recorded at cost which approximates fair value because of the short-term nature of these instruments. At June 30, 2010 and December 31, 2009, there were no available-for-sale securities investments subject to fair value accounting included in cash and cash equivalents or long-term investments.

 

Short-term investments, consisting of bank notes, were $1.2 million and $1.0 million at June 30, 2010 and December 31, 2009, respectively. The Company accepts bank notes receivable with maturity dates of between three and six months from its customers in China in the normal course of business. The Company may discount these bank notes with banking institutions in China. During the six months ended June 30, 2010, no bank notes were sold. During the three months ended June 30, 2009, there were no bank notes sold. During the six months ended June 30, 2009, the Company sold $9.9 million of bank notes and recorded immaterial costs as a result of discounting the notes. All long-term investments are in privately-held companies and are accounted for under the cost method. The Company recognizes an impairment charge when a decline in the fair value of its investments below the cost basis is judged to be other-than-temporary. In making this determination, the Company reviews several factors to determine whether the losses are other-than-temporary, including but not limited to: (i) the length of time the investment was in an unrealized loss position, (ii) the extent to which fair value was less than cost, (iii) the financial condition and near term prospects of the issuer and (iv) the Company’s intent and ability to hold the investment for a period of time sufficient to allow for any anticipated recovery in fair value.

 

The following table shows the break-down of the Company’s equity securities classified as long-term investments at June 30, 2010 and December 31, 2009:

 

		June 30,			December 31,
		2010			2009
		(in thousands)
Cortina		$	3,348		$	3,348
GCT SemiConductor, Inc.		3,000			3,000
Xalted Networks		1,583			1,583
SBI		1,131			471
Total equity securities		$	9,062		$	8,402

 

SBI NEO Technology A Investment LPS (“SBI”)

 

In 2008, the Company invested $0.5 million into SBI in exchange for approximately 2% of the Partnership interest. The Partnership’s investment objective is to invest in unlisted or listed companies in Japan and overseas that are engaged in high growth businesses, including businesses focused on information technology and the environment. In the first quarter of 2010, the Company contributed an additional $0.6 million into SBI, and at June 30, 2010 maintains an approximately 2% Partnership interest. The Company has concluded that it does not have a controlling interest in SBI as it does not have the power to direct the activities of SBI that most significantly impact the entity’s economic performance. Affiliates of a related party have a controlling interest in SBI, see Note 16. The Company accounts for the investment in SBI using the cost method.

 

NOTE 7 — SALE-LEASEBACK TRANSACTION

 

In December 2009, the Company entered into a Property Transfer and Leaseback Agreement (the “Sale Leaseback Agreement”) for the sale of its manufacturing, research and development and administrative office facility in Hangzhou, China (the “Hangzhou facility”) to a third party for proceeds of approximately $138.8 million and the leaseback of approximately one-third of the property through 2016. As of May 31, 2010, the Company had received all of the sales proceeds and met all criteria for consummation of sale of the Hangzhou facility. On May 31, 2010, the Company and the buyer agreed that all conditions precedent to the closing had been met and the leaseback commenced on June 1, 2010.

 

Management determined that the transaction qualified for sale-leaseback accounting as all of the risks and rewards of ownership were transferred to the buyer upon closing of the transaction and the leaseback arrangement did not include any form of continuing involvement, other than a normal leaseback. In the second quarter of 2010, the Company recorded the sale of the Hangzhou facility and recorded a deferred gain of $7.7 million at the time of sale. The deferred gain was represented by the gross sales proceeds of $138.8 million, less $7.5 million of transaction related taxes and other fees, and less the net book value of the Hangzhou facility of $123.6 million. The gain on sale was deferred in accordance with the accounting guidance for sale-leaseback transactions, as the Company has retained more than a minor portion of the use of the property through the six-year leaseback. The deferred gain on the sale-leaseback is being amortized in proportion to the related gross rental charged to expense over the leaseback term. At June 30, 2010, $1.2 million of deferred gain is included in other current liabilities and $6.5 million of deferred gain is included in other long-term liabilities in the condensed consolidated balance sheet.

 

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In connection with the Sale Leaseback Agreement, on February 1, 2010, the Company entered into a Lease Contract (the “Lease”) with respect to the leaseback of a portion of the Hangzhou facility. Under the terms of the Lease, the Company will lease back 71,027 sqm gross floor area (“GFA”) aboveground and 12,000 sqm GFA underground of the building for a period of 6 years at a rate of approximately $0.37, $0.44 and $0.47, respectively, per sqm per day for years 1-2, 3-4 and 5-6, respectively, of the lease period for the aboveground space; and approximately $3.66 per sqm per month for the underground space for the full lease period. The Company was also required to pay a security deposit in the amount of approximately $1.8 million and prepay part of the rent and fees for the last six months of the lease term in the amount of approximately $3.4 million upon lease inception on June 1, 2010. The Company may terminate all or part of the Lease by giving six months advance notice; however, the Company would be required to pay penalties and additional compensation in the event of early termination. The Company has determined that the Lease qualifies as an operating lease. See Note 10 for future minimum lease payments under all noncancelable operating leases.

 

NOTE 8 - WARRANTY OBLIGATIONS AND OTHER GUARANTEES

 

The Company provides a warranty on its equipment and handset sales for a period generally ranging from one to two years from the time of final acceptance. At times, the Company has entered into arrangements to provide limited warranty services for periods longer than two years. The Company provides for the expected cost of product warranties at the time that revenue is recognized based on an assessment of past warranty experience and when specific circumstances dictate. The Company assesses the adequacy of its recorded warranty liability every quarter and makes adjustments to the liabilities if necessary. Specific warranty accruals are reversed upon the expiration of the warranty period and are recorded as a reduction of cost of net sales. From time to time, the Company may be subject to additional costs related to non-standard warranty claims from its customers. If and when this occurs, the Company estimates additional accruals based on historical experience, communication with its customers and various assumptions that the Company believes to be reasonable under the circumstances. Such additional warranty accruals are recorded in the period in which the additional costs are identified.

 

Expirations recorded as a reduction of cost of net sales approximated $1.2 million and $1.8 million for the three months ended June 30, 2010 and 2009, respectively, and $2.6 million and $2.3 million for the six months ended June 30, 2010 and 2009, respectively and are included in the table below as benefit from expirations. The following table summarizes the activity related to warranty obligations during the three and six months ended June 30, 2010 and 2009:

 

		Three months ended June 30,						Six months ended June 30,
		2010			2009			2010			2009
		(in thousands)
Balance at beginning of period		$	12,011		$	29,814		$	16,150		$	29,840
Accruals for warranties issued during the period (benefit from expirations), net		(1,324		)	7,251			(3,084		)	10,833
Settlements made during the period		(1,095		)	(3,241		)	(3,474		)	(6,849		)
Balance at end of period		$	9,592		$	33,824		$	9,592		$	33,824

 

During the second quarter of 2009, the Company recorded a special warranty charge related to certain handsets sold to PCD LLC.  Under the Settlement Agreement with PCD LLC (see Note 3), the Company agreed to pay PCD LLC $8.4 million to settle certain PCD LLC customers’ warranty claims arising from the handsets sold to PCD LLC.  The $8.4 million claim settlement is included in the accruals for warranties issued during the three and six months ended June 30, 2009 in the table above.

 

Certain of the Company’s sales contracts include provisions under which customers would be indemnified by the Company in the event of, among other things, a third-party claim against the customer for intellectual property rights infringement related to the Company’s products.  There are no limitations on the maximum potential future payments under these guarantees.  The Company has not accrued any amount in relation to these provisions as no such claims have developed into assertable claims and the Company believes it has defensible rights to the intellectual property embedded in its products.

 

NOTE 9 - RESTRUCTURING COSTS

 

Restructuring Costs

 

During the three months ended June 30, 2010, the Company recorded approximately $0.2 million net reversal of restructuring charges recorded in previous periods. During the six months ended June 30, 2010, the Company recorded approximately $7.3 million in restructuring charges. For the three and six months ended June 30, 2009, the Company recorded restructuring charges of $27.8 million and $32.6 million, respectively. The following describes the Company’s restructuring initiatives.

 

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2009 Restructuring Plan

 

On June 9, 2009, the Board of Directors of the Company approved a restructuring plan (the “2009 Restructuring Plan”) designed to reduce the Company’s operating costs. The 2009 Restructuring Plan includes a worldwide reduction in force of approximately 50% of the Company’s headcount, or approximately 2,300 employees located primarily in China and the United States and, to a lesser degree, other international locations. During the three months ended June 30, 2010, the Company recorded $1.4 million reversal of restructuring charges recorded in prior periods resulting from change in estimate. This change in estimate resulted from voluntary resignation of employees originally included in the restructuring plan as well as retention of employees originally identified in the plan to replace employees who voluntarily resigned. Partially offsetting this reversal was approximately $0.9 million additional charges related to employees located in the United States and other international locations as the Company continues to phase-out non-core international operations. During the three months ended June 30, 2010, the Company also recorded an additional $0.3 million of lease costs on exited facilities. During the six months ended June 30, 2010, the Company recorded restructuring costs of approximately $6.9 million related to the 2009 Restructuring Plan, net of approximately $1.7 million of reversal of charges recorded in prior periods. The restructuring costs for the six months ended June 30, 2010 consist primarily of severance and benefits related to additional employees included in the Restructuring Plan in the first quarter of 2010, adjusted for change in estimate in the second quarter of 2010. During the second quarter of 2009, the Company recorded restructuring charges of approximately $25.9 million related to the 2009 Restructuring Plan, including $24.7 million for severance and benefits and $1.2 million related to the estimated loss on a lease obligation that expires in 2013. Total restructuring costs recorded through June 30, 2010 related to the 2009 Restructuring Plan approximated $46.8 million.

 

2008 Restructuring Plan

 

During fiscal 2008, the Company implemented a restructuring plan (the “2008 Restructuring Plan”) primarily related to a global reduction in force across all functions and employee terminations at certain non-core operations which the Company was in the process of winding down. The total number of employees affected totaled approximately 750, including 350 in China, 200 in Korea and 200 in other locations including the United States. During the three and six months ended June 30, 2010, the Company recorded additional restructuring costs related to the 2008 Restructuring Plan of approximately $0.1 million and $0.4 million, respectively, for severance and benefit costs being recognized over the remaining service period for employees included in the 2008 Restructuring Plan. During the three and six months ended June 30, 2009, the Company recorded $1.8 million and $6.4 million, respectively, in restructuring charges related to the 2008 Restructuring Plan. Total restructuring costs recorded through June 30, 2010 related to the 2008 Restructuring Plan approximated $19.8 million.

 

2007 Restructuring Plan

 

At June 30, 2010, the 2007 Restructuring Plan was complete.

 

The activity in the accrued restructuring balances related to the plans described above was as follows for the six months ended June 30, 2010 and 2009:

 

		Balance at December 31, 2009			Restructuring Charges			Cash Payments			Non-cash Settlement			Balance at June 30, 2010
		(in thousands)
2009 Restructuring Plan
Workforce Reduction		$	16,939		$	6,480		$	(14,710	)	$	(1,613	)	$	7,096
Lease Costs		1,516			375			(267		)	—			1,624
Other Costs		6			—			—			—			6
Total 2009 Restructuring Plan		18,461			6,855			(14,977		)	(1,613		)	8,726
2008 Restructuring Plan
Workforce Reduction		2,526			466			(1,815		)	—			1,177
Lease Costs		385			—			(385		)	—			—
Other Costs		30			(30		)	—			—			—
Total 2008 Restructuring Plan		2,941			436			(2,200		)	—			1,177
2007 Restructuring Plan - Lease Costs		305			—			(305		)	—			—
Total		$	21,707		$	7,291		$	(17,482	)	$	(1,613	)	$	9,903

 

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		Balance at December 31, 2008			Restructuring Charges			Cash Payments			Non-cash Settlement			Balance at June 30, 2009
		(in thousands)
2009 Restructuring Plan
Workforce Reduction		$	—		$	24,715		$	(1,070	)	$	(417	)	$	23,228
Lease Costs		—			1,223			—			—			1,223
Other Costs		—			7			(7		)	—			—
Total 2009 Restructuring Plan		—			25,945			(1,077		)	(417		)	24,451
2008 Restructuring Plan
Workforce Reduction		7,976			5,377			(7,569		)	(380		)	5,404
Lease Costs		249			1,114			(467		)	—			896
Other Costs		498			(64		)	(247		)	—			187
Total 2008 Restructuring Plan		8,723			6,427			(8,283		)	(380		)	6,487
2007 Restructuring Plan - Lease Costs		788			204			(321		)	—			671
Total		$	9,511		$	32,576		$	(9,681	)	$	(797	)	$	31,609

 

The majority of the remaining cash expenditures related to the 2009 and 2008 Restructuring Plans are expected to be paid in 2010. The remaining liabilities related to lease obligations are expected to be settled over the remaining lease term. The Company expects to incur additional restructuring charges in 2010 as it continues to execute the 2009 and 2008 Restructuring Plans.

 

NOTE 10 - COMMITMENTS AND CONTINGENCIES

 

Leases

 

The Company leases certain facilities under noncancelable operating leases that expire at various dates through 2016.  In connection with the Sale Leaseback Agreement, the Company entered into a lease with respect to the leaseback of a portion of the Hangzhou facility, see Note 7.  The leaseback commenced on June 1, 2010 and the contractual obligations related to the Hangzhou facility lease are included in the table below. Future minimum lease payments under all noncancelable operating leases with an initial term in excess of one year as of June 30, 2010 are as follows:

 

 

Litigation

 

Securities Class Action Litigation

 

Beginning in October 2004, several shareholder class action lawsuits alleging federal securities violations were filed against the Company and various officers and directors of the Company. The actions have been consolidated in United States District Court for the Northern District of California under the caption In re UTStarcom, Inc. Securities Litigation, Master File No. C-04-4908-JW (PVT). The lead plaintiffs in the case filed a First Amended Consolidated Complaint on July 26, 2005. The First Amended Complaint

 

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alleged violations of the Securities Exchange Act of 1934, and was brought on behalf of a putative class of shareholders who purchased the Company’s stock after April 16, 2003 and before September 20, 2004. On April 13, 2006, the lead plaintiffs filed a Second Amended Complaint adding new allegations and extending the end of the class period to October 6, 2005. In addition to the Company defendants, the plaintiffs are also suing Softbank. Plaintiffs’ complaint seeks recovery of damages in an unspecified amount.

 

On June 2, 2006, the Company and the individual defendants filed a motion to dismiss the Second Amended Complaint. On March 21, 2007, the Court granted defendants’ motion and dismissed plaintiffs’ Second Amended Complaint. The Court granted plaintiffs leave to file a Third Amended Complaint, which plaintiffs filed on May 25, 2007. On July 13, 2007, the Company and the individual defendants filed a motion to dismiss and a motion to strike the Third Amended Complaint. On March 14, 2008, the Court granted defendants’ motion and dismissed plaintiffs’ Third Amended Complaint. The Court granted plaintiffs leave to file a Fourth Amended Complaint, which plaintiffs filed on May 14, 2008. On June 13, 2008, consistent with the Court’s March 14, 2008 dismissal order, the Company and the individual defendants filed objections to the form and content of the Fourth Amended Complaint. On July 24, 2008, the Court overruled the objections. On September 8, 2008, the Company and the individual defendants filed a motion to dismiss and a motion to strike certain allegations from the Fourth Amended Complaint. On March 27, 2009, the Court denied defendants’ motion to dismiss and granted defendants’ motion to strike.

 

Plaintiffs, the Company and the individual defendants have signed and filed a stipulation of settlement providing for the settlement of the case. Defendant Softbank is not a party to the settlement. The settlement is contingent on approval by the court. Under the terms of the settlement, the Company’s and individual defendants’ insurers would pay the full amount of the settlement. On May 13, 2010, the Court granted preliminary approval of the settlement and scheduled a final approval hearing for August 30, 2010.  There is no assurance that the settlement will receive final approval. Moreover, because Defendant Softbank is not a party to this settlement, discovery and motion practice are continuing.  No trial date has been set.  We have continued to incur costs with regard to discovery in connection with the ongoing litigation between the non-settling parties.  Accordingly, the Company is unable at this time to estimate the effects of this lawsuit on the Company’s financial position, results of operations, or cash flows.

 

Shareholder Derivative Litigation

 

On November 17, 2006, a shareholder derivative complaint captioned Ernesto Espinoza v. Ying Wu et al., Case No. RG06298775, was filed against certain of the Company’s current and former officers and directors in the Superior Court of the County of Alameda, California. The complaint alleges that the individual defendants, among other things, breached their duties, were unjustly enriched, and violated the California Corporations Code in connection with the timing of stock option grants. The complaint names the Company as a nominal defendant and seeks unspecified monetary damages against the individual defendants and various forms of injunctive relief. On February 2, 2007, the Company and the individual defendants filed demurrers against the complaint. On April 11, 2007, the Court sustained the individual defendants’ demurrer, overruled the Company’s demurrer, ordered the plaintiff to file an amended complaint, and ordered the Company to answer the original complaint. The plaintiff filed an amended complaint and the Company has filed an answer to the amended complaint. On August 21, 2007, the individual defendants filed demurrers against the amended complaint. The Court sustained the individual defendants’ demurrers and ordered the plaintiff to file a second amended complaint. On September 26, 2008, plaintiff filed his second amended complaint. On November 21, 2008, the Company and the individual defendants filed demurrers against the second amended complaint. On February 27, 2009, the Court sustained the Company’s demurrer and ordered the plaintiff to file a third amended complaint. On March 20, 2009, plaintiff filed his third amended complaint. On May 5, 2009, the Company and the individual defendants filed demurrers against the third amended complaint. On August 11, 2009, the Court sustained the Company’s demurrer without leave to amend. On October 13, 2009, plaintiffs filed a notice of appeal.

 

The parties have signed a binding Memorandum of Understanding providing for the settlement of the case. The settlement requires completion of final settlement documentation. The settlement is contingent on approval by the court. Under the terms of the settlement, the individual defendants’ insurer would pay the full amount of the monetary portion of the settlement. On April 15, 2010, plaintiff filed a Request for Dismissal without prejudice with the Court of Appeals. Pursuant to the Request, the appeal may be reinstated if the Superior Court does not grant preliminary or final approval of the settlement. There is no assurance that the settlement will receive court approval. Accordingly, the Company is unable at this time to estimate the effects of this lawsuit on the Company’s financial position, results of operations, or cash flows.

 

IPO Allocation

 

On October 31, 2001, a complaint was filed in United States District Court for the Southern District of New York against the Company, some of the Company’s directors and officers and various underwriters for the Company’s initial public offering. Substantially similar actions were filed concerning the initial public offerings for more than 300 different issuers, and the cases were coordinated as In re Initial Public Offerings Securities Litigation, Civil Action No. 01-CV-9604. Plaintiffs allege violations of the Securities Act of 1933 and the Securities Exchange Act of 1934 through undisclosed improper underwriting practices concerning the

 

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allocation of IPO shares in exchange for excessive brokerage commissions, agreements to purchase shares at higher prices in the aftermarket and misleading analyst reports. Plaintiffs seek unspecified damages on behalf of a purported class of purchasers of the Company’s common stock between March 2, 2000 and December 6, 2000. The Company’s directors and officers have been dismissed without prejudice pursuant to a stipulation. On February 19, 2003, the Court granted in part and denied in part a motion to dismiss the claims brought by defendants, including the Company. The order dismissed all claims against the Company except for a claim brought under Section 11 of the Securities Act of 1933, which alleges that the registration statement filed in accordance with the IPO was misleading.

 

The parties have reached a global settlement of the litigation. Under the settlement the insurers will pay the full amount of the settlement share allocated to the Company, and the Company will bear no financial liability. The Company, as well as the officer and director defendants who were previously dismissed from the action pursuant to tolling agreements, will receive complete dismissals from the case. On October 5, 2009, the Court entered an Opinion and Order granting final approval of the settlement. Certain objectors have filed appeals. If for any reason the settlement does not become effective, the Company believes it has meritorious defenses to the claims and intends to defend the action vigorously.

 

Other Litigation

 

The Company is a party to other litigation matters and claims that are normal in the course of operations, and while the results of such litigation matters and claims cannot be predicted with certainty, management of the Company believes that the final outcome of such matters will not have a material adverse impact on the Company’s financial position, results of operations or cash flows.

 

Letters of credit

 

The Company issues standby letters of credit primarily to support international sales activities outside of China and in support of purchase commitments. When the Company submits a bid for a sale, often the potential customer will require that the Company issue a bid bond or a standby letter of credit to demonstrate its commitment through the bid process. In addition, the Company may be required to issue standby letters of credit as guarantees for advance customer payments upon contract signing or performance guarantees. The standby letters of credit usually expire without being drawn by the beneficiary thereof. Finally, the Company may issue commercial letters of credit in support of purchase commitments. At June 30, 2010, the Company had short-term restricted cash of $22.2 million, and had long-term restricted cash of $12.1 million included in other long-term assets. The restricted cash amounts primarily collateralize the Company’s outstanding letters of credit approximating $25.4 million at June 30, 2010.

 

NOTE 11 — STOCK INCENTIVE PLAN

 

During the six months ended June 30, 2010, the Company granted equity awards primarily consisting of restricted stock and restricted stock units (“RSUs”), and to a much lesser extent, option awards. Such awards generally vest over a period of one to four years from the date of grant. Restricted stock has the voting rights of common stock and the shares underlying restricted stock are issued and outstanding. There were no option awards during the three months ended June 30, 2010.

 

In February 2008, the Compensation Committee granted 1,073,333 performance-based awards to certain senior executive officers. During the third quarter of 2008, 233,333 of these contingently issuable shares were forfeited as a result of employee terminations. On October 6, 2008, the performance requirements with respect to 60,000 of these contingently issuable shares were eliminated, these restricted stock units have a fair value of $2.69 per share, which equals the closing price of the Company’s common stock on the NASDAQ Stock Market on the measurement date of October 6, 2008. On February 18, 2009, the Committee determined, based on the Company’s and each executive officer’s level of performance during the Company’s 2008 fiscal year, that an additional 367,500 shares underlying the previously granted performance-based restricted stock units had been earned, each of these performance-based restricted stock units has a fair value of $1.27 per share, which equals the closing price of the Company’s common stock on the NASDAQ Stock Market on the measurement date of February 18, 2009. These restricted stock units vested 50% on February 27, 2009 and 50% vested on February 26, 2010.

 

In February 2009, the Compensation Committee also granted to senior executive officers 313,293 restricted stock units with a four-year vesting and an additional 626,586 performance-based awards, subject to the attainment of goals determined by the Compensation Committee. The Company may be subject to variable levels of expense related primarily to the varying levels of performance, as well as for fluctuations in the Company’s stock price as these awards are “marked to market” periodically until the earlier of i) the date of the Compensation Committee’s determination on performance or ii) the date they were deemed fully vested as a result of involuntary termination. Of the 626,586 performance-based awards granted in February 2009, 401,859 awards were deemed fully vested during fiscal 2009 as a result of involuntary terminations, prior to the annual Compensation Committee’s evaluation of performance. At its meeting on February 18, 2010, the Compensation Committee evaluated the performance against established objectives of the remaining 224,727 performance-based awards and determined 148,769 RSUs were earned.

 

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In February 2010, the Compensation Committee decided no annual grants of stock-based awards would be made to existing senior executives for the 2010 year in light of the Company’s previously announced planned changes in management.

 

To reduce the Company’s long term cost structure and manage shareholder dilution, the Company has elected to terminate the ESPP program effective May 15, 2009. The cancellation has been accounted for as a settlement of shares for no consideration. This resulted in an immediate expense recognition in the first quarter of 2009 of $1.2 million associated with the unrecognized compensation for canceled purchase periods of the 24-month offering.

 

During the quarter ended June 30, 2009, an adjustment was made to increase the estimated forfeiture rate for equity awards of employees that are being included in the 2009 Restructuring Plan as the awards are not expected to ultimately vest.  The resulting net effect of the forfeiture rate adjustment was a decrease to the Company’s stock-based compensation expense for the three months ended June 30, 2009 by approximately $0.4 million.

 

The total stock-based compensation expense, including the ESPP expense described above, recognized in the condensed consolidated statement of operations for the three months and six months ended June 30, 2010 and 2009 was as follows:

 

		Three months ended June 30,						Six months ended June 30,
		2010			2009			2010			2009
		(in thousands)
Cost of net sales		$	36		$	60		$	93		$	491
Selling, general and administrative		1,079			1,617			2,480			4,056
Research and development		153			186			361			1,083
Restructuring		419			417			1,613			797
Total		$	1,687		$	2,280		$	4,547		$	6,427

 

Option activity as of June 30, 2010 and changes during the six months ended June 30, 2010 were as follows:

 

		Number of shares outstanding		Weighted average exercise price
		(in thousands)
Options outstanding, December 31, 2009		5,750		$	8.98
Options granted		100		$	2.18
Options exercised		(2	)	$	2.82
Options forfeited or expired		(699	)	$	11.05
Options outstanding, June 30, 2010		5,149		$	8.57

 

Nonvested restricted stock and restricted stock units as of June 30, 2010, and changes during the six months ended June 30, 2010, were as follows:

 

		Shares		Weighted average grant date fair value
		(in thousands)
Nonvested at December 31, 2009		4,030		$	2.38
Granted		1,230		$	2.28
Vested		(1,593	)	$	2.35
Forfeited		(430	)	$	2.16
Total nonvested at June 30, 2010		3,237		$	2.39

 

At June 30, 2010, there was approximately $5.8 million of total unrecognized compensation cost not including forfeitures, related to non-vested stock options, restricted stock and restricted stock units, as measured, which the Company expects to recognize over a weighted-average period of 2.4 years. For additional information regarding the Company’s stock-based compensation plans, see the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.

 

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NOTE 12 - INCOME TAXES

 

As of December 31, 2009, the Company had gross unrecognized tax benefits of approximately $90.6 million and had certain deferred tax assets and the federal tax benefit of state income tax items totaling $77.8 million. If recognized, the portion of gross unrecognized tax benefits that would decrease the provision for income taxes and decrease the Company’s net loss is approximately $12.8 million.

 

As of June 30, 2010, the Company had gross unrecognized tax benefits of approximately $92.4 million and had certain deferred tax assets and the federal tax benefit of state income tax items totaling $78.4 million. If recognized, the portion of gross unrecognized tax benefits that would decrease the provision for income taxes and decrease the Company’s net loss is approximately $14.0 million.

 

The Company recognizes interest expense and penalties related to the above unrecognized tax benefits within income tax expense. The Company had accrued interest and penalties of approximately $3.1 million as of December 31, 2009 and approximately $3.3 million as of June 30, 2010.

 

The Company is subject to taxation in the U.S. federal jurisdiction and various U.S. state and foreign jurisdictions. The Company is under audit by the taxing authorities in China on a recurring basis. The material jurisdictions that the Company is subject to examination are in the United States and China. The Company’s tax years for 1999 through 2009 are still open for examination in China. The Company’s tax years for 2006 through 2009 are still open for examination in the United States. The Company believes that it is reasonably possible that the amount of gross unrecognized tax benefits related to the resolution of income tax matters could be reduced by approximately $1.0 million during the next 12 months as income tax audits are settled and statute of limitations expire. The portion of the $1.0 million of gross unrecognized tax benefits that would decrease the provision for income taxes and increase the Company’s net income is approximately $0.7 million.

 

FASB ASC 740-10 establishes criteria for recognizing or continuing to recognize only more-likely-than-not tax positions, which may result in income tax expense volatility in future periods. While the Company believes that it has adequately provided for all tax positions, amounts asserted by taxing authorities could be greater than the Company’s accrued position. Accordingly, additional provisions on income tax related matters could be recorded in the future as revised estimates are made or the underlying matters are settled or otherwise resolved.

 

In establishing its deferred income tax assets and liabilities, the Company makes judgments and interpretations based on the enacted tax laws and published tax guidance applicable to its operations. The Company records deferred tax assets and liabilities and evaluates the need for valuation allowances to reduce the deferred tax assets to realizable amounts. The likelihood of a material change in the Company’s expected realization of these assets is dependent on future taxable income and its ability to use foreign tax credit carryforwards and carrybacks.

 

Income tax benefit was $0.5 million for the three months ended June 30, 2010 compared to income tax expense of $4.7 million for the three months ended June 30, 2009.  In the second quarter of 2010, a one-time tax benefit of $0.9 million was recorded mainly related to the release of previously established valuation allowance on deferred tax assets in Taiwan which was offset by foreign tax expenses. Income tax expense was $1.8 million for the six months ended June 30, 2010 compared to $6.5 million for the six months ended June 30, 2009. The decrease in income tax expense in the six month ended June 30, 2010 compared with six month ended June 30, 2009 was primarily due to the decreased ordinary income in jurisdictions where the Company has been profitable and a one-time tax expense of $1.4 million in the three month ended June 30, 2009 related to establishing of valuation allowance on net deferred tax assets in Korea.

 

For 2010 and 2009, the Company has not provided any tax benefit on any forecasted losses incurred and tax credits generated in the United States and other countries, because management believes that it is more likely than not that the tax benefit associated with these losses will not be realized. Also, for 2010 and 2009, the Company continues to accrue tax expense in jurisdictions where the Company has been historically profitable. Estimates of the annual effective tax rate at the end of the interim periods are based on evaluations of possible future events and transactions and may be subject to subsequent refinement or revision.

 

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Table of Contents

 

NOTE 13 - OTHER INCOME (EXPENSE), NET

 

Other income (expense), net for the three and six months ended June 30, 2010 and 2009, respectively were comprised of the following:

 

		Three months ended June 30,						Six months ended June 30,
		2010			2009			2010			2009
					(in thousands)
Other-than-temporary impairment of equity investment		$	—		$	(3,798	)	$	—		$	(3,798	)
Foreign exchange gains (losses)		(4,938		)	9,003			(851		)	1,745
Settlement with MRV Communications (1)		58			—			481			—
Other		113			224			470			268
Total		$	(4,767	)	$	5,429		$	100		$	(1,785	)

 

(1)          Previously, the Company held an 8% ownership interest in Fiberxon, which was acquired by MRV Communications (“MRV”) in 2007. In connection with the acquisition, Fiberxon shareholders received cash and stock as well as the right to potential deferred consideration. In December 2009, MRV entered into a settlement agreement for dismissal of legal proceedings between MRV and the former shareholders of Fiberxon regarding the amount of contingent consideration owed related to its acquisition. Proceeds received in the first quarter of 2010 represented the Company’s proportionate share of the settlement amounts.

 

NOTE 14 - SEGMENT REPORTING

 

In the fourth quarter of 2009, the Company substantially completed the wind-down of its handset business. Except for sales relating to inventory clearing, the Company does not expect any significant handset revenue in 2010. Beginning on January 1, 2010, the Company integrated its Services Segment into its Multimedia Communications and Broadband Infrastructure segments based on products for which services are performed. Effective January 1, 2010, the new reporting segments are as follows:

 

·                  Multimedia Communications—Focused on development and market opportunities in IPTV solutions and Wireless infrastructure technologies, including related services revenue.

 

·                  Broadband Infrastructure—Focused on our world class portfolio of broadband products, including related services revenue.

 

·                  Handsets—Focused on mobile phone business including PAS and CDMA handset market, as well as data cards markets. Handset sales to PCD LLC, which commenced after the July 1, 2008 sale of PCD, are included in this segment.

 

The Company’s chief operating decision makers make financial decisions based on information it receives from its internal management system and currently evaluates the operating performance of and allocates resources to the reporting segments based on segment revenue and gross profit. Cost of sales and direct expenses in relation to production are assigned to the reporting segments. The accounting policies used in measuring segment assets and operating performance are the same as those used at the consolidated level.

 

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