EMCORE Corporation
EMCORE CORP (Form: 10-Q, Received: 10/05/2010 08:16:42)


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

¨
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 0-22175

 
EMCORE Corporation
(Exact name of registrant as specified in its charter)

New Jersey
(State or other jurisdiction of incorporation or organization)
22-2746503
(I.R.S. Employer Identification No.)
   
10420 Research Road, SE, Albuquerque, New Mexico
(Address of principal executive offices)
87123
(Zip Code)

Registrant’s telephone number, including area code:   (505) 332-5000

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

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, 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    ¨ No

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 definition of “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):      ¨ Large accelerated filer      x Accelerated filer      ¨ Non-accelerated filer      ¨ Smaller reporting company
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).   ¨ Yes   x No

The number of shares outstanding of the registrant’s no par value common stock as of October 1, 2010 was 85,100,633.
 


 
 

 

CAUTIONARY STATEMENT
 FOR PURPOSES OF “SAFE HARBOR PROVISIONS”
OF THE PRIVATE SECURITIES LITIGATION ACT OF 1995

This Quarterly Report on Form 10-Q includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, and Section 21E of the Exchange Act of 1934.  These forward-looking statements are largely based on our current expectations and projections about future events and financial trends affecting the financial condition of our business.  Such forward-looking statements include, in particular, projections about our future results included in our Exchange Act reports, statements about our plans, strategies, business prospects, changes and trends in our business and the markets in which the Company operates.  These forward-looking statements may be identified by the use of terms and phrases such as “anticipates”, “believes”, “can”, “could”, “estimates”, “expects”, “forecasts”, “intends”, “may”, “plans”, “projects”, “targets”, “will”, and similar expressions or variations of these terms and similar phrases.  Additionally, statements concerning future matters such as the development of new products, enhancements or technologies, sales levels, expense levels and other statements regarding matters that are not historical are forward-looking statements. Management cautions that these forward-looking statements relate to future events or our future financial performance and are subject to business, economic, and other risks and uncertainties, both known and unknown, that may cause actual results, levels of activity, performance or achievements of our business or our industry to be materially different from those expressed or implied by any forward-looking statements.  Factors that could cause or contribute to such differences in results and outcomes include without limitation those discussed under Item 1A - Risk Factors in our Annual Report on Form 10-K for the fiscal year ended September 30, 2009, as updated by our subsequent periodic reports.  The cautionary statements should be read as being applicable to all forward-looking statements wherever they appear in this Quarterly Report and they should also be read in conjunction with the consolidated financial statements, including the related footnotes.

Neither management nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements.  All forward-looking statements in this Quarterly Report are made as of the date hereof, based on information available to us as of the date hereof, and subsequent facts or circumstances may contradict, obviate, undermine, or otherwise fail to support or substantiate such statements.  The Company cautions you not to rely on these statements without also considering the risks and uncertainties associated with these statements and our business that are addressed in our Annual Report.  Certain information included in this Quarterly Report may supersede or supplement forward-looking statements in our other Exchange Act reports filed with the Securities and Exchange Commission.  The Company assumes no obligation to update any forward-looking statement to conform such statements to actual results or to changes in our expectations, except as required by applicable law or regulation.

 
2

 

EMCORE Corporation
FORM 10-Q
For The Quarterly Period Ended June 30, 2010

TABLE OF CONTENTS

     
PAGE
       
Part I
Financial Information
 
     
 
Item 1.
4
 
Item 2.
28
 
Item 4.
40
   
 
 
Part II
Other Information
 
     
 
Item 1.
42
 
Item 1A.
44
 
Item 6.
46
   
 
 
   
46

 
3


FINANCIAL INFORMATION
ITEM I.
Financial Statements


EMCORE CORPORATION
Condensed Consolidated Statements of Operations and Comprehensive Loss
For the three and nine months ended June 30, 2010 and 2009
(in thousands, except loss per share)
(unaudited)
 
 
 
   
Three Months Ended
June 30,
   
Nine Months Ended
June 30,
 
 
 
2010
   
2009
   
2010
   
2009
 
                         
Product revenue
  $ 43,786     $ 37,190     $ 131,292     $ 129,076  
Service revenue
    2,820       1,299       5,910       6,753  
Total revenue
    46,606       38,489       137,202       135,829  
                                 
Cost of product revenue
    31,675       39,880       94,544       138,666  
Cost of service revenue
    2,122       1,037       4,778       5,007  
Total cost of revenue
    33,797       40,917       99,322       143,673  
                                 
Gross profit (loss)
    12,809       (2,428 )     37,880       (7,844 )
                                 
Operating expenses:
                               
Selling, general, and administrative
    14,004       10,914       35,254       35,039  
Research and development
    7,147       5,654       22,256       20,655  
Impairments
    -       27,000       -       60,781  
Total operating expenses
    21,151       43,568       57,510       116,475  
                                 
Operating loss
    (8,342 )     (45,996 )     (19,630 )     (124,319 )
                                 
Other (income) expense:
                               
Interest income
    (3 )     (3 )     (22 )     (83 )
Interest expense
    111       105       330       443  
Foreign exchange loss (gain)
    928       (745 )     1,889       635  
Change in fair value of financial instruments
    (176 )     -       634       -  
Cost of financing instruments
    12       -       348       -  
Impairment of investment
    -       -       -       367  
Gain from sale of investments
    -       -       -       (3,144 )
Total other expense (income)
    872       (643 )     3,179       (1,782 )
 
                               
Net loss
  $ (9,214 )   $ (45,353 )   $ (22,809 )   $ (122,537 )
 
                               
Foreign exchange translation adjustment
    444       (131 )     810       353  
                                 
Comprehensive loss
  $ (8,770 )   $ (45,484 )   $ (21,999 )   $ (122,184 )
                                 
Per share data:
                               
                                 
Net loss per basic and diluted share
  $ (0.11 )   $ (0.57 )   $ (0.28 )   $ (1.56 )
 
                               
Weighted-average number of basic and diluted shares outstanding
    84,117       79,700       82,544       78,632  

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


EMCORE CORPORATION
Condensed Consolidated Balance Sheets
As of June 30, 2010 and September 30, 2009
(in thousands)
(unaudited)

   
As of
June 30,
2010
   
As of
September 30,
2009
 
ASSETS
           
             
Current assets:
           
Cash and cash equivalents
  $ 14,404     $ 14,028  
Restricted cash
    437       1,521  
Available-for-sale securities
    1,200       1,350  
Accounts receivable, net of allowance of $7,601 and $7,125, respectively
    37,312       39,417  
Inventory, net
    33,936       31,685  
Prepaid expenses and other current assets
    4,832       4,712  
                 
Total current assets
    92,121       92,713  
                 
Property, plant and equipment, net
    48,675       55,028  
Goodwill
    20,384       20,384  
Other intangible assets, net
    11,349       12,982  
Long-term restricted cash
    -       163  
Other non-current assets, net
    672       753  
                 
Total assets
  $ 173,201     $ 182,023  
                 
                 
LIABILITIES and SHAREHOLDERS’ EQUITY
               
                 
Current liabilities:
               
Borrowings from credit facility
  $ 10,932     $ 10,332  
Short-term debt
    679       842  
Accounts payable
    27,128       24,931  
Accrued expenses and other current liabilities
    20,311       21,883  
                 
Total current liabilities
    59,050       57,988  
                 
Warrant liability
    634       -  
Other long-term liabilities
    100       104  
                 
Total liabilities
    59,784       58,092  
                 
Commitments and contingencies
               
                 
Shareholders’ equity:
               
Preferred stock, $0.0001 par, 5,882 shares authorized; no shares outstanding
    -       -  
Common stock, no par value, 200,000 shares authorized; 85,061 shares issued and 84,902 shares outstanding as of June 30, 2010; 80,982 shares issued and 80,823 shares outstanding as of September 30, 2009
    700,329       688,844  
Accumulated deficit
    (586,374 )     (563,565 )
Accumulated other comprehensive income
    1,545       735  
Treasury stock, at cost; 159 shares as of June 30, 2010 and September 30, 2009
    (2,083 )     (2,083 )
Total shareholders’ equity
    113,417       123,931  
                 
Total liabilities and shareholders’ equity
  $ 173,201     $ 182,023  

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


EMCORE CORPORATION
Condensed Consolidated Statements of Cash Flows
For the nine months ended June 30, 2010 and 2009
(in thousands)
(unaudited)

   
For the Nine Months
 Ended June 30,
   
2010
 
2009
Cash flows from operating activities:
               
                 
Net loss
 
$
(22,809
)
 
$
(122,537
)
Adjustments to reconcile net loss to net cash used in operating activities:
               
Impairments
   
-
     
60,781
 
Stock-based compensation expense
   
7,344
     
4,975
 
Depreciation and amortization expense
   
9,266
     
12,862
 
Provision for inventory reserves
   
2,332
     
14,934
 
Provision for doubtful accounts
   
1,957
     
4,818
 
Provision for product warranty
   
669
     
-
 
Provision for losses on firm commitments
   
-
     
6,524
 
Impairment of investment
   
-
     
367
 
Loss on disposal of equipment
   
89
     
152
 
Compensatory stock issuances
   
884
     
438
 
Gain from sale of unconsolidated affiliate
   
-
     
(3,144
)
Change in fair value of financial instruments
   
634
     
-
 
Cost of financing instruments
   
322
     
-
 
Total non-cash adjustments
   
23,497
     
102,707
 
                 
Changes in operating assets and liabilities:
               
Accounts receivable
   
(1,033
)
   
13,472
 
Inventory
   
(4,594
)
   
10,201
 
Other assets
   
(208
)
   
1,893
 
Accounts payable
   
2,218
     
(30,494
)
Accrued expenses and other current liabilities
   
(2,302
)
   
(5,761
)
Total change in operating assets and liabilities
   
(5,919
)
   
(10,689
)
                 
Net cash used in operating activities
   
(5,231
)
   
(30,519
)
                 
                 
Cash flows from investing activities:
               
                 
Purchase of plant and equipment
   
(830
)
   
(1,182
)
Investments in patents
   
(524
)
   
-
 
Proceeds from the sale of available-for-sale securities
   
150
     
2,679
 
Proceeds from the sale of an unconsolidated affiliate
   
-
     
11,017
 
Release of restricted cash
   
1,246
     
1,893
 
                 
Net cash provided by investing activities
 
$
42
   
$
14,407
 

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


EMCORE CORPORATION
Condensed Consolidated Statements of Cash Flows
For the nine months ended June 30, 2010 and 2009
(in thousands)
(unaudited)

(Continued from previous page)
 
 
For the Nine Months
Ended June 30,
   
2010
 
2009
Cash flows from financing activities:
               
                 
Net proceeds from borrowings from credit facility
 
$
600
   
$
4,984
 
Net (payments on) proceeds from borrowings of short-term debt
   
(163
)
   
889
 
Proceeds from exercise of employee stock options
   
-
     
32
 
Proceeds from employee stock purchase plan
   
990
     
894
 
Net proceeds from the equity line of credit facility
   
1,980
     
-
 
                 
Net cash provided by financing activities
   
3,407
     
6,799
 
                 
Effect of foreign currency on cash
   
2,158
     
472
 
                 
Net increase (decrease) in cash and cash equivalents
   
376
     
(8,841
)
                 
Cash and cash equivalents at beginning of period
   
14,028
     
18,227
 
                 
Cash and cash equivalents at end of period
 
$
14,404
   
$
9,386
 
                 
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
               
                 
Cash paid during the period for interest
 
$
227
   
$
511
 
                 
Cash paid during the period for income taxes
 
$
-
   
$
-
 
                 
NON-CASH INVESTING AND FINANCING ACTIVITIES
               
                 
Issuance of common stock for purchase of assets acquired from Intel Corporation
 
$
-
   
$
1,183
 
                 
Issuance of common stock related to equity line of credit facility
 
$
228
   
$
-
 

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


EMCORE Corporation
Notes to Consolidated Financial Statements


NOTE 1.  Basis of Presentation

The accompanying unaudited condensed consolidated financial statements include the accounts of EMCORE Corporation and its subsidiaries (the “Company” or “EMCORE”). All intercompany accounts and transactions have been eliminated in consolidation.

These statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) for interim information, and with the instructions to Form 10-Q and Rule 10-01 of Regulation S-X of the Securities and Exchange Commission (“SEC”). Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for annual financial statements. In the opinion of management, the interim financial statements reflect all normal adjustments that are necessary to provide a fair presentation of the financial results for the interim periods presented.  Operating results for interim periods are not necessarily indicative of results that may be expected for an entire fiscal year. The condensed consolidated balance sheet as of September 30, 2009 has been derived from the audited consolidated financial statements as of such date. For a more complete understanding of the Company’s financial position, operating results, risk factors, and other matters, please refer to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2009.

Certain prior period information has been reclassified to conform to this current period’s presentations.

 
Use of Estimates

The preparation of the consolidated financial statements in conformity with U.S. GAAP requires management of the Company to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities, as of the date of the financial statements, and the reported amounts of revenue and expenses during the reported period.  The accounting estimates that require our most significant, difficult, and subjective judgments include:

 
-
valuation of inventory, goodwill, intangible assets, warrants, and stock-based compensation;
 
-
assessment of recovery of long-lived assets;
 
-
revenue recognition associated with the percentage of completion method; and,
 
-
allowance for doubtful accounts and warranty accruals.

Management develops estimates based on historical experience and on various assumptions about the future that are believed to be reasonable based on the best information available. The Company’s reported financial position or results of operations may be materially different under changed conditions or when using different estimates and assumptions, particularly with respect to significant accounting policies.  In the event that estimates or assumptions prove to differ from actual results, adjustments are made in subsequent periods to reflect more current information.

 
Liquidity and Capital Resources

During the three months ended June 30, 2010, the Company incurred a net loss of $9.2 million.  The Company’s operating results for future periods are subject to numerous uncertainties and it is unclear if the Company will be able to reduce or eliminate its net losses for the foreseeable future.  In the event that management is not able to increase revenue and/or manage operating expenses in line with revenue forecasts, the Company may not be able to achieve profitability.

As of June 30, 2010, cash, cash equivalents, available-for-sale securities and current restricted cash totaled approximately $16.0 million.  Historically, management has addressed the Company’s liquidity requirements through the combination of cost reduction initiatives, improvements in working capital management, capital markets transactions, and the sale of assets.  In fiscal 2010, management continues to remain focused on reducing the amount of cash used from operations while developing additional sources of liquidity.  For the nine months ended June 30, 2010, and 2009, the Company consumed cash from operations of approximately $5.2 million and $30.5 million, respectively.  In fiscal 2010, the consumption of $5.2 million of cash was entirely related to an increase in components of working capital.  The Company consumed less cash from operations when compared to the prior year due to improved operating performance and working capital management.  The Company achieved positive cash flow from operations in two of the last four quarters, including the quarters ended September 30, 2009 and March 31, 2010.  In the fourth quarter, we expect the Company’s operational performance will improve and cash will be generated through increases in gross margin and improvement in working capital management.

On October 1, 2009, the Company entered into an equity line of credit arrangement with Commerce Court Small Cap Value Fund, Ltd. (“Commerce Court”).  Upon issuance of a draw-down request by the Company within the 24-month term of the purchase agreement, Commerce Court has committed to purchase up to $25 million of the Company’s common stock.  See Footnote 3 – Equity Facility for additional information related to this equity line of credit.


We believe that our existing balances of cash, cash equivalents, and available-for-sale securities, together with amounts expected to be available under our revolving credit facility with Bank of America and the equity line of credit agreement with Commerce Court will provide us with sufficient financial resources to meet our cash requirements for operations, working capital, and capital expenditures for the next 12 months.  However, in the event of unforeseen circumstances, or unfavorable market or economic developments, the Company may have to raise additional funds by any one or a combination of the following: issuing equity, debt or convertible debt, or selling certain product lines and/or portions of our business. There can be no guarantee that the Company will be able to raise additional funds on terms acceptable to us, or at all. A significant contraction in the capital markets, particularly in the technology sector, may make it difficult for us to raise additional capital if or when it is required, especially if the Company experiences negative operating results.  In addition, as a result of the delay in filing this Quarterly Report, we are currently ineligible to register our securities on Form S-3.  We may continue to use our currently effective Registration Statement on Form S-3 until we file our next Annual Report on Form 10-K, but during the period in which we are not able to use the registration statement, we may be unable to access financing under our equity line of credit agreement.  If adequate capital is not available to us as required, or is not available on favorable terms, our business, financial condition and results of operations may be adversely affected.

 
Strategic Plan

Due to significant differences in operating strategy between the Company’s Fiber Optics and Photovoltaics businesses, the Company’s management and Board of Directors believes that they would provide greater value to shareholders if they were operated as two separate business entities.  The Company is exploring business strategies to meet the following objectives: 1) creating a low-cost manufacturing base for its Fiber Optics business, 2) separating the Company’s Photovoltaics and Fiber Optics businesses to become pure plays in each of the business segments, and 3) providing the Company with improved liquidity to launch its concentrator photovoltaics (“CPV”) business.

In furtherance of this strategy, on July 30, 2010, the Company entered into an agreement for the establishment and operation of a joint venture (the “JV Agreement”) with San’an Optoelectronics Co., Ltd. (“San’an”) for the purpose of engaging in the development,   manufacturing, and distribution of CPV receivers, modules, and systems for terrestrial solar power applications under license from the Company.

The JV Agreement provides for the parties to form Suncore Photovoltaics Co., Ltd., a limited liability company (“Suncore”), under the laws of the People’s Republic of China.  The Company will own a forty percent (40%) ownership interest in Suncore, while San’an will own a sixty percent (60%) interest.

Concurrently with the execution of the JV Agreement, the Company entered into a cooperation agreement (the “Cooperation Agreement”) with an affiliate of San’an (the “Affiliate”). The Cooperation Agreement provides for the Company, or a designated affiliate of the Company, to receive an aggregate $8.5 million in fees, payable over a two-year period following the establishment of Suncore, in connection with the Company’s provision of the technology license and related support and strategic consulting services to Suncore. The Company intends to use the fees it receives pursuant to the Cooperation Agreement and assembly and test equipment and inventory assets to fund most of its capital contributions to Suncore.  Furthermore, the Cooperation Agreement provides that the Affiliate will provide Suncore with working capital financing in the form of loans and/or guarantees.

 
Correction of Prior Period Financial Statements

During the third quarter of fiscal 2010, management determined that approximately $2.5 million of excess and obsolete inventory reserves related to the Company’s Fiber Optics segment should have been recorded in the quarter ended September 30, 2009.  The financial impact from this error was an overstatement of inventory and understatement of cost of revenue of $2.5 million in the quarter and year ended September 30, 2009.  Accordingly, the condensed consolidated balance sheet as of September 30, 2009 was corrected to reduce inventory by approximately $2.5 million with a corresponding increase to accumulated deficit.  The impact from correcting prior period financial statements resulted in the reduction of cost of revenue of approximately $1.2 million and $0.3 million in the quarters ended December 31, 2009 and March 31, 2010, respectively.  The Company also recorded a $0.2 million compensation-related adjustment in the quarter and year ended September 30, 2009.  The net effect on net loss per basic and diluted share was ($0.03) per share for the quarter and year ended September 30, 2009 and $0.01 per share for the quarters ended December 31, 2009 and March 31, 2010.  These corrections had no impact to net cash used in operating activities as reported on the statements of cash flows.  The effect of these corrections was not considered material to any previously reported financial statement and these corrections will be made to applicable prior period financial information in future filings with the SEC.


NOTE 2.  Recent Accounting Pronouncements

ASC 470 – Debt . On October 1, 2009, the Company adopted new authoritative guidance that requires the proceeds from the issuance of certain convertible debt instruments to be allocated between a liability component (issued at a discount) and an equity component. The resulting debt discount is amortized over the period the convertible debt is expected to be outstanding as additional non-cash interest expense. The change in accounting treatment was effective for the Company beginning in fiscal 2010, and it is required to be applied retrospectively to prior periods.  Management is currently assessing the potential impact this new guidance will have on the Company’s fiscal 2008 statement of operations that will be presented in the Company’s 2010 Form 10-K filing.  It is not expected to have a significant effect on the fiscal 2008 ending equity account balances or the fiscal 2009 or 2010 financial statements.

ASC 605 – Revenue Recognition .   In October 2009, the FASB issued new authoritative guidance on revenue recognition related to arrangements with multiple deliverables that will become effective in fiscal 2011, with earlier adoption permitted.  Under the new guidance, when vendor specific objective evidence or third party evidence for deliverables in an arrangement cannot be determined, a best estimate of the selling price is required to separate deliverables and allocate arrangement consideration using the relative selling price method. The new guidance includes new disclosure requirements on how the application of the relative selling price method affects the timing and amount of revenue recognition.  Management is currently assessing the potential impact that the adoption of this new guidance could have on the Company’s financial statements.

ASC 805 – Business Combinations .   On October 1, 2009, the Company adopted new authoritative guidance which requires an acquirer to recognize the assets acquired, the liabilities assumed, including those arising from contractual contingencies, any contingent consideration, and any noncontrolling interest in the acquiree at the acquisition date, measured at their fair values as of that date, with limited exceptions specified in the statement.  It also requires the acquirer in a business combination achieved in stages (sometimes referred to as a step acquisition) to recognize the identifiable assets and liabilities, as well as the noncontrolling interest in the acquiree, at the full amounts of their fair values (or other amounts determined in accordance with this accounting principle).  In addition, the accounting principle’s requirement to measure the noncontrolling interest in the acquiree at fair value will result in recognizing the goodwill attributable to the noncontrolling interest in addition to that attributable to the acquirer. ASC 805 also requires the acquirer to recognize changes in the amount of its deferred tax benefits that are recognizable because of a business combination either in income from continuing operations in the period of the combination or directly in contributed capital, depending on the circumstances. It also provides guidance on the impairment testing of acquired research and development intangible assets and assets that the acquirer intends not to use.  ASC 805 applies prospectively to business combinations for which the acquisition date is on or after October 1, 2009; therefore, the adoption of ASC 805 did not have any impact on the Company’s historical financial statements.

ASC 810 – Consolidation . – On October 1, 2009, the Company adopted new authoritative guidance which establishes accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. It also clarifies that a noncontrolling interest in a subsidiary is an ownership interest in the consolidated entity that should be reported as equity in the consolidated financial statements.  ASC 810 also changes the way the consolidated income statement is presented by requiring consolidated net income to be reported at amounts that include the amounts attributable to both the parent and the noncontrolling interest. It also requires disclosure, on the face of the consolidated statement of income, of the amounts of consolidated net income attributable to the parent and to the noncontrolling interest. ASC 810 requires that a parent recognize a gain or loss in net income when a subsidiary is deconsolidated and requires expanded disclosures in the consolidated financial statements that clearly identify and distinguish between the interests of the parent owners and the interests of the noncontrolling owners of a subsidiary.  The adoption of this new guidance did not have any impact on the Company’s results of operations or financial condition.

 
NOTE 3.  Equity Facility

On October 1, 2009, the Company entered into a common stock purchase agreement (the “Purchase Agreement”) with Commerce Court that sets forth the terms of an equity line of credit.  The Purchase Agreement provides that upon certain terms and conditions, and the issuance of a draw-down request by the Company, Commerce Court has committed to purchase up to $25 million of the Company’s common stock over the 24-month term of the Purchase Agreement; provided, however, in no event may the Company sell more than 15,971,169 shares of common stock under the Purchase Agreement, which is equal to one share less than twenty percent of the Company’s outstanding shares of common stock as of the closing date of the Purchase Agreement, less the number of shares of common stock the Company issued to Commerce Court on the closing date in partial payment of its commitment fee, or more shares that would result in the beneficial ownership or more than 9.9% of the then issued and outstanding shares of our common stock by Commerce Court.  

As payment of a portion of Commerce Court’s fees in connection with the Purchase Agreement, the Company issued to Commerce Court, upon the execution of the Purchase Agreement, 185,185 shares of the Company’s common stock and three warrants representing the right to purchase up to an aggregate of 1,600,000 shares of the Company’s common stock, as follows: 

 
-
a warrant, pursuant to which Commerce Court may purchase up to 666,667 shares of the Company’s common stock at an exercise price of $1.69, which is equal to 125% of the average of the volume weighted average price of common stock for the three trading days immediately preceding the execution date of the Purchase Agreement,


 
-
a warrant, pursuant to which Commerce Court may purchase from up to 666,667 shares of the Company’s common stock at an exercise price of $2.02, which is equal to 150% of the average of the volume weighted average price of common stock for the three trading days immediately preceding the execution date of the Purchase Agreement, and

 
-
a warrant, pursuant to which Commerce Court may purchase up to 266,666 shares of the Company’s common stock at an exercise price of $2.36, which is equal to 175% of the average of the volume weighted average price of common stock for the three trading days immediately preceding the execution date of the Purchase Agreement.

The warrants may be exercised at any time or from time to time between April 1, 2010 and April 1, 2015.  The warrants may not be offered for sale, sold, transferred or assigned without the Company’s consent, in whole or in part, to any person other than an affiliate of Commerce Court.  If after April 1, 2010, the Company’s common stock trades at a price greater than 140% of the exercise price of any warrant for a period of 10 consecutive trading days and the Company meets certain equity conditions, then the Company has the right to affect a mandatory exercise of such warrant.

From time to time over the term of the Purchase Agreement, and at the Company’s sole discretion, the Company may present Commerce Court with draw down notices to purchase common stock over a ten consecutive trading day period or such other period mutually agreed upon by the Company and Commerce Court (the “draw down period”) with each draw down subject to limitations based on the price of the Company’s common stock and a limit of the amount in the applicable fixed amount request, or 2.5% of the Company’s market capitalization at the time of such draw down, whichever is less.

The Company has the right to present Commerce Court with up to 24 draw down notices during the term of the Purchase Agreement, with only one such draw down notice allowed per draw down period with a minimum of five trading days required between each draw down period.

Once presented with a draw down notice, Commerce Court is required to purchase a pro rata portion of the shares on each trading day during the trading period on which the daily volume weighted average price for the common stock exceeds a threshold price determined by the Company for such draw down. The per share purchase price for these shares will equal the daily volume weighted average price of the common stock on each date during the draw down period on which shares are purchased, less a discount of 5%. If the daily volume weighted average price of the common stock falls below the threshold price on any trading day during a draw down period, the Purchase Agreement provides that Commerce Court will not be required to purchase the pro-rata portion of shares of common stock allocated to that day. However, at its election, Commerce Court may buy the pro-rata portion of shares allocated to that day at the threshold price less the discount described above.

The Purchase Agreement also provides that, from time to time and at the Company’s sole discretion, the Company may grant Commerce Court the right to exercise one or more options to purchase additional shares of common stock during each draw down period for an amount of shares specified by the Company based on the trading price of the common stock. Upon Commerce Court’s exercise of such an option, the Company would sell to Commerce Court the shares of common stock subject to the option at a price equal to the greater of the daily volume weighted average price of the common stock on the day Commerce Court notifies the Company of its election to exercise its option or the threshold price for the option determined by the Company, less a discount calculated in the same manner as it is calculated in the draw down notice.

In addition to the issuance of shares of common stock to Commerce Court pursuant to the Purchase Agreement, a supplement to the Company’s shelf registration statement filed with the SEC also covers the sale of those shares from time to time by Commerce Court to the public.

The Company paid $45,000 of Commerce Court’s attorneys’ fees and expenses incurred by Commerce Court in connection with the preparation, negotiation, execution and delivery of the Purchase Agreement and related transaction documentation.  The Company has also agreed to pay up to $5,000 in certain fees and expenses incurred by Commerce Court in connection with any amendments, modifications or waivers of the Purchase Agreement, ongoing due diligence of our Company and other transaction expenses associated with fixed requests made by the Company from time to time during the term of the Purchase Agreement, provided that the Company shall not be required to pay any reimbursement for any such expenses in any calendar quarter in which the Company provides a fixed request notice.

If the Company issues a draw down notice and fails to deliver the shares to Commerce Court on the applicable settlement date, and such failure continues for ten trading days, the Company has agreed to pay Commerce Court, at Commerce Court’s option, liquidated damages in cash or restricted shares of common stock.

Upon each sale of common stock to Commerce Court under the Purchase Agreement, the Company has also agreed to pay Reedland Capital Partners, an Institutional Division of Financial West Group, a placement fee equal to 1% of the aggregate dollar amount of common stock purchased by Commerce Court.


In addition, as a result of the delay in filing this Quarterly Report, we are currently ineligible to register our securities on Form S-3.  We may continue to use our currently effective Registration Statement on Form S-3 until we file our next Annual Report on Form 10-K, but during the period in which we are not able to use the registration statement, we may be unable to access financing under our equity line of credit agreement.

 
Draw-down Transaction

On March 18, 2010, the Company sold 1,870,042 shares of its common stock to Commerce Court pursuant to the terms of the Purchase Agreement at an average price of approximately $1.07 per share.  The Company received $2.0 million from the sale of common stock; with the total discount to volume weighted average price calculated on a daily basis totaling $0.1 million, which was recorded as a non-operating expense within the condensed consolidated statement of operations.

 
Other Financial Impact

Costs incurred to enter into the equity line of credit facility were expensed as incurred.  During the three months ended December 31, 2009, the Company expensed the fair value of the common stock and warrants issued as a non-operating expense within the condensed consolidated statement of operations.  On October 1, 2009, the Company recorded $1.4 million related to the issuance of warrants and $0.2 million related to the issuance of 185,185 shares of common stock.

The fair value of the common stock was based on a closing price of $1.23 per share on October 1, 2009.  The warrants issued by the Company were classified as a liability since the warrants met the classification requirements for liability accounting in accordance with ASC 815.  The fair value of each warrant was estimated using the Black-Scholes option valuation model.  The Company expects an impact to the consolidated statement of operations when it records an adjustment to fair value of the warrants at the end of each quarterly reporting period going forward.

As of December 31, 2009, the value of the warrants was estimated to be $1.1 million using the Black-Scholes option valuation model.

As of March 31, 2010, management changed the warrant valuation method from the Black-Scholes option valuation model to the modified binomial option pricing model which has been recognized as a change in accounting estimate.  The valuation model was changed to the modified binomial option pricing model since it allows the valuation of each warrant to factor in the value associated with the Company’s right to affect a mandatory exercise of each warrant if the Company’s common stock trades at a price greater than 140% of the exercise price of any warrant.  As of March 31, 2010, the fair value of the warrants was estimated to be $0.8 million using the modified binomial option pricing model.  As of December 31, 2009, this change in estimate would have resulted in a reduction of $0.5 million of non-operating expense in that reporting period.

As of June 30, 2010, management changed the warrant valuation method from the modified binomial option pricing model to the Monte Carlo option pricing model which has been recognized as a change in accounting estimate.  The valuation model was changed to the Monte Carlo option pricing model since it allows the valuation of each warrant to factor in the value associated with the Company’s right to affect a mandatory exercise of each warrant if the Company’s common stock trades at a price greater than 140% of the exercise price of any warrant for 10 consecutive trading days.  As of June 30, 2010, the fair value of the warrants was estimated to be $0.6 million using the Monte Carlo option pricing model.  As of December 31, 2009, this change in estimate would have resulted in a reduction of $0.4 million of non-operating expense in that reporting period.  As of March 31, 2010, this change in estimate would have resulted in an additional $18,000 of non-operating expense in that reporting period.  

The option pricing models discussed above required the input of highly subjective assumptions, including the warrant’s expected life and the price volatility of the underlying stock, as outlined below:

Assumptions used in the Option Pricing Models
 
As of
October 31, 2009
   
As of December 31, 2009
   
As of
March 31,
2010
   
As of
June 30,
2010
 
                         
Expected dividend yield
    - %     - %     - %     - %
Expected stock price volatility
    95 %     95 %     96 %     97 %
Risk-free interest rate 
    2.2 %     2.7 %     2.6 %     1.8 %
Expected term (in years)
    5.5       5.25       5.0       4.75  


NOTE 4.  Equity

Stock Options

The Company provides long-term incentives to eligible officers, directors, and employees in the form of stock options.  Most of the Company’s stock options vest and become exercisable over four to five years and have a contractual life of ten years.  Certain stock options awarded by the Company are intended to qualify as incentive stock options pursuant to Section 422A of the Internal Revenue Code.   The Company issues new shares of common stock to satisfy the issuance of shares under this stock-based compensation plan.

On May 21, 2010, the shareholders of the Company approved the adoption of the Company’s 2010 Equity Incentive Plan (the “2010 Equity Plan”) and authorized the reservation of 4,000,000 shares of the Company’s common stock for issuance under the 2010 Equity Plan.  The 2010 Equity Plan replaced the Company’s 2000 Stock Option Plan, which expired on February 12, 2010.

As of June 30, 2010, no stock options or shares of restricted stock were granted under the 2010 Equity Plan.

 
Surrender of Stock Options

On November 20, 2009, the Company’s Chief Financial Officer at the time, voluntarily surrendered stock options exercisable into 475,000 shares of common stock.  These stock options had an exercise price of $5.57 and were granted on August 18, 2008.  The Chief Financial Officer received no consideration in exchange for the surrender of these stock options.  The surrender of his non-vested stock options resulted in an immediate non-cash charge of $1.3 million, which was recorded in selling, general, and administrative expense during the three months ended December 31, 2009.  The expense was due to the acceleration of all unrecognized stock-based compensation expense associated with that specific stock option grant.

The following table summarizes the activity under the Company’s 2000 Stock Option Plan:

 
 
Number of Shares
   
Weighted Average Exercise Price
   
Weighted Average
Remaining Contractual Life
(in years)
 
Outstanding as of September 30, 2009
    10,788,174     $ 4.85        
                       
Granted
    76,500       1.07        
Exercised
    -       -        
Forfeited
    (642,915 )     3.60        
Cancelled
    (968,128 )     6.79        
                       
Outstanding as of June 30, 2010
    9,253,631     $ 4.69       7.16  
                         
Exercisable as of June 30, 2010
    4,436,788     $ 5.91       5.67  
                         
Vested and expected to vest as of June 30, 2010
    6,098,326     $ 5.09       6.49  

As of June 30, 2010, there was approximately $3.8 million of total unrecognized compensation expense related to non-vested stock-based compensation arrangements granted under the 2000 Stock Option Plan.  This expense is expected to be recognized over an estimated weighted average life of 2.5 years.

Intrinsic value for stock options represents the “in-the-money” portion or the positive variance between a stock option’s exercise price and the underlying stock price.  There were no stock options exercised during the three or nine months ended June 30, 2010.  The total intrinsic value related to stock options exercised during the nine months ended June 30, 2009 totaled approximately $10,000.  The intrinsic value related to fully vested and expected to vest stock options as of June 30, 2010 totaled approximately $5,000 and the intrinsic value related to exercisable stock options as of June 30, 2010 was approximately $3,000.

 
     
Number of Stock Options Outstanding
   
Options Exercisable
 
Exercise Price
 of Stock Options
   
Number Outstanding
   
 
Weighted- Average Remaining Contractual Life (years)
   
Weighted- Average Exercise Price
   
Number Exercisable
   
Weighted- Average Exercise Price
 
<$5.00       4,740,908       7.48     $ 1.92       1,568,495     $ 2.96  
>=$5.00 to <$10.00
      4,478,623       6.83       7.56       2,850,493       7.49  
=>$10.00
      34,100       6.78       11.25       17,800       11.17  
Total
      9,253,631       7.16     $ 4.69       4,436,788     $ 5.91  

Stock-based compensation expense is measured at the stock option grant date, based on the fair value of the award, and is recorded to cost of sales; sales, general, and administrative; and research and development expense based on an employee’s responsibility and function over the requisite service period.  Management has made an estimate of expected forfeitures and recognizes compensation expense only for those equity awards expected to vest.

The effect of recording stock-based compensation expense was as follows:

(in thousands, except per share data)
 
For the Three Months
Ended June 30,
 
For the Nine Months
Ended June 30,
   
2010
 
2009
 
2010
 
2009
Stock-based compensation expense by award type:
                               
Employee stock options
 
$
1,994
   
$
1,072
   
$
6,927
   
$
4,413
 
Employee stock purchase plan
   
101
     
206
     
417
     
562
 
                                 
Total stock-based compensation expense
 
$
2,095
   
$
1,278
   
$
7,344
   
$
4,975
 
                                 
Net effect on net loss per basic and diluted share
 
$
(0.02
)
 
$
(0.02
)
 
$
(0.09
)
 
$
(0.06
)

 
Valuation Assumptions

The fair value of each stock option grant is estimated on the date of grant using the Black-Scholes option valuation model and the straight-line attribution approach using the following weighted-average assumptions.  The option-pricing model requires the input of highly subjective assumptions, including the option’s expected life and the price volatility of the underlying stock.  There were no stock options granted during the three months ended June 30, 2010.  The weighted-average grant date fair value of stock options granted during the nine months ended June 30, 2010 was $0.77.  The weighted average grant date fair value of stock options granted during the three and nine months ended June 30, 2009 was $0.99 and $0.92, respectively.

Assumptions used in Black-Scholes Option Valuation Model
 
For the Three Months
Ended June 30,
 
For the Nine Months
Ended June 30,
   
2010
 
2009
 
2010
 
2009
                                 
Expected dividend yield
   
-
     
-
     
-
     
-
 
Expected stock price volatility
   
-
%
   
147.7
%
   
97.1
%
   
187.6
%
Risk-free interest rate 
   
-
%
   
2.4
%
   
2.4
%
   
2.4
%
Expected term (in years)
   
-
     
6.2
     
4.6
     
5.8
 
Estimated pre-vesting forfeitures
   
-
%
   
31.9
%
   
32.7
%
   
31.9
%


Expected Dividend Yield:   The Black-Scholes valuation model calls for a single expected dividend yield as an input. The Company has not issued any dividends.

Expected Stock Price Volatility:   The fair values of stock-based payments were valued using the Black-Scholes valuation method with a volatility factor based on the Company’s historical stock price.

Risk-Free Interest Rate :  The Company bases the risk-free interest rate used in the Black-Scholes valuation method on the implied yield that was currently available on U.S. Treasury zero-coupon notes with an equivalent remaining term. Where the expected term of stock-based awards do not correspond with the terms for which interest rates are quoted, the Company performed a straight-line interpolation to determine the rate from the available maturities.

Expected Term: Expected term represents the period that the Company’s stock-based awards are expected to be outstanding and was determined based on historical experience of similar awards, giving consideration to the contractual terms of the stock-based awards, vesting schedules and expectations of future employee behavior as influenced by changes to the terms of its stock-based awards.

Estimated Pre-vesting Forfeitures: When estimating forfeitures, the Company considers voluntary termination behavior as well as workforce reduction programs.

 
Warrants

As of June 30, 2010, the Company had 3,000,003 warrants outstanding.

On October 1, 2009, the Company entered into an equity line of credit arrangement with Commerce Court Small Cap Value Fund, Ltd. wherein the Company issued to Commerce Court three warrants representing the right to purchase up to an aggregate of 1,600,000 shares of the Company’s common stock.  See Footnote 3 – Equity Facility for additional information related to the warrants issued with this equity facility.

In February 2008, the Company issued 1,400,003 warrants in conjunction with a private placement transaction.  The warrants grant the holder the right to purchase one share of the Company’s common stock at a price of $15.06 per share.  The warrants are immediately exercisable and remain exercisable until February 20, 2013.  Beginning two years after their issuance, the warrants may be called by the Company for a price of $0.01 per underlying share if the closing price of its common stock has exceeded 150% of the exercise price for at least 20 trading days within a period of any 30 consecutive trading days and other certain conditions are met.  In addition, in the event of certain fundamental transactions, principally the purchase of the Company’s outstanding common stock for cash, the holders of the warrants may demand that the Company purchase the unexercised portions of their warrants for a price equal to the Black-Scholes Value of such unexercised portions as of the time of the fundamental transaction.  Warrants issued to the investors were accounted for as an equity transaction with a value of $9.8 million recorded to common stock.

 
Employee Stock Purchase Plan

The Company maintains an Employee Stock Purchase Plan (“ESPP”) that provides employees of the Company an opportunity to purchase common stock through payroll deductions. The ESPP is a 6-month duration plan with new participation periods beginning the first business day of January and July of each year. The purchase price is set at 85% of the average high and low market price of the Company's common stock on either the first or last day of the participation period, whichever is lower, and contributions are limited to the lower of 10% of an employee's compensation or $25,000.  The Company issues new shares of common stock to satisfy the issuance of shares under this stock-based compensation plan.

The amounts of shares issued for the ESPP are as follows:
 
   
Number of Common Stock Shares
   
Purchase Price per Share of
Common Stock
 
             
Amount of shares reserved for the ESPP
    4,500,000        
               
Number of shares issued for calendar years 2000 through 2007
    (1,123,857 )   $ 1.87 - $40.93  
Number of shares issued for calendar year 2008
    (592,589 )   $ 0.88 - $ 5.62  
Number of shares issued for calendar year 2009
    (1,073,405 )   $ 0.88 - $ 0.92  
Number of shares issued for calendar year 2010
    (651,700 )   $ 0.74  
                 
Remaining shares reserved for the ESPP
    1,058,449          
 

Future Issuances

As of June 30, 2010, the Company had reserved a total of 17.3 million shares of its common stock for future issuances as follows:

    Number of Common Stock Shares Available for Future Issuances  
         
For exercise of outstanding common stock options
   
9,253,631
 
For future issuances to employees under the ESPP
   
1,058,449
 
For future common stock option or restricted stock awards under the 2010 Equity Incentive Plan
   
4,000,000
 
For future exercise of warrants
   
3,000,003
 
         
Total reserved
   
17,312,083
 

 
NOTE 5.  Receivables

The components of accounts receivable consisted of the following:

(in thousands)
 
As of
June 30,
2010
   
As of September 30, 2009
 
             
Accounts receivable
  $ 36,782     $ 40,474  
Accounts receivable – unbilled
    8,131       6,068  
                 
Accounts receivable, gross
    44,913       46,542  
                 
Allowance for doubtful accounts
    (7,601 )     (7,125 )
                 
Accounts receivable, net
  $ 37,312     $ 39,417  

The Company records revenue from certain solar panel and solar power systems contracts using the percentage-of-completion method.  The term of the contracts associated with this type of receivable usually exceed a period of one year.  As of June 30, 2010, the Company had $15.6 million of accounts receivable recorded using the percentage of completion method.  Of this amount, $7.9 million was invoiced and $7.7 million was unbilled as of June 30, 2010.  Unbilled accounts receivable represents revenue recognized but not yet billed or accounts billed after the period ended.  Billings on contracts using the percentage-of-completion method usually occur upon completion of predetermined contract milestones or other contract terms, such as customer approval.  During the three months ended June 30, 2010, the Company recorded a $2.4 million reserve on accounts receivable related to a solar power system contract that management had uncertainty about its total collectibility.  The allowance for doubtful accounts specifically related to receivables recorded using the percentage-of-completion method totaled $4.5 million as of June 30, 2010.  The allowance is based on the age of receivables and a specific identification of receivables considered at risk of collection.

All of the Company’s accounts receivable as of June 30, 2010 is expected to be collected within the next twelve months.


The following table summarizes the changes in the allowance for doubtful accounts:

(in thousands)
 
For the Nine Months
Ended June 30,
   
2010
 
2009
                 
Balance at beginning of period
 
$
7,125
   
$
2,377
 
Provision adjustment – expense, net of recoveries
   
1,957
     
4,818
 
Adjustments against receivables or provisions
   
(1,481
)
   
125
 
                 
Balance at end of period
 
$
7,601
   
$
7,320
 

 
NOTE 6.  Inventory

Inventory is stated at the lower of cost or market, with cost being determined using the standard cost method that includes material, labor, and manufacturing overhead costs, which approximates weighted average cost.  The components of inventory consisted of the following:

(in thousands)
 
As of
June 30,
2010
   
As of
September 30,
2009
 
             
Raw materials
  $ 24,746     $ 27,607  
Work in-process
    6,781       6,496  
Finished goods
    13,509       9,998  
                 
Inventory, gross
    45,036       44,101  
                 
Valuation reserve
    (11,100 )     (12,416 )
                 
Inventory, net
  $ 33,936     $ 31,685  

The following table summarizes the changes in the valuation allowance accounts:

(in thousands)
 
For the Nine Months
Ended June 30,
   
2010
 
2009
                 
Balance at beginning of period
 
$
12,416
   
$
12,990
 
Provision adjustment – expense
   
2,332
     
14,934
 
Adjustments against inventory or provisions
   
(3,648
)
   
(14,270
)
                 
Balance at end of period
 
$
11,100
   
$
13,654
 


NOTE 7.  Property, Plant, and Equipment

The components of property, plant, and equipment consisted of the following:

(in thousands)
 
As of
June 30,
2010
   
As of September 30, 2009
 
             
Land
  $ 1,502     $ 1,502  
Building and improvements
    34,854       34,922  
Equipment
    99,775       98,693  
Furniture and fixtures
    3,065       3,065  
Computer hardware and software
    2,648       2,660  
Leasehold improvements
    884       1,094  
Construction in progress
    2,856       3,031  
                 
Property, plant and equipment, gross
    145,584       144,967  
                 
Accumulated depreciation and amortization
    (96,909 )     (89,939 )
                 
Property, plant and equipment, net
  $ 48,675     $ 55,028  

As of June 30, 2010 and September 30, 2009, the Company did not have any significant capital lease agreements.

Depreciation expense was $2.3 million and $7.1 million for the three and nine months ended June 30, 2010, respectively.

Depreciation expense was $3.2 million and $9.6 million for the three and nine months ended June 30, 2009, respectively.

 
NOTE 8.  Goodwill

As of September 30, 2009, the Company performed an impairment test on its goodwill based on revised operational and cash flow forecasts.  The impairment testing indicated that no impairment existed and that fair value exceeded carrying value by approximately 40%.  As of December 31, 2009, the Company performed an annual impairment test on its goodwill of $20.4 million related to its Photovoltaics reporting unit and the Company believed the carrying amount of the goodwill was not impaired.  There have been no events or change in circumstances that would more likely than not reduce the fair value of the Photovoltaics reporting unit below its carrying amount.  However, if there is further erosion of the Company’s market capitalization or the Photovoltaics reporting unit is unable to achieve its projected cash flows, management may be required to perform additional impairment tests of its remaining goodwill.  The outcome of these additional tests may result in the Company recording goodwill impairment charges.

 
NOTE 9.  Intangible Assets

The following table sets forth changes in the carrying value of intangible assets by reporting segment:

(in thousands)
 
As of June 30, 2010
   
As of September 30, 2009
 
   
Gross
Assets
   
Accumulated
Amortization
   
Net
Assets
   
Gross Assets
   
Accumulated
Amortization
   
Net
Assets
 
                                     
Fiber Optics
  $ 24,612     $ (14,287 )   $ 10,325     $ 24,494     $ (12,341 )   $ 12,153  
Photovoltaics
    1,866       (842 )     1,024       1,459       (630 )     829  
                                                 
Total
  $ 26,478     $ (15,129 )   $ 11,349     $ 25,953     $ (12,971 )   $ 12,982  

The Company believes the carrying amount of its long-lived assets and intangible assets as of June 30, 2010 are recoverable.  However, if there is further erosion of the Company’s market capitalization or the Company is unable to achieve its projected cash flows, the Company may be required to perform impairment tests of its remaining long-lived assets and intangible assets.  The outcome of these tests may result in the Company recording impairment charges.


Amortization expense related to intangible assets is included in SG&A on the consolidated statements of operations.  Amortization expense was $0.7 million and $2.2 million for the three and nine months ended June 30, 2010, respectively. Amortization expense was $1.2 million and $3.3 million for the three and nine months ended June 30, 2009, respectively.

Based on the carrying amount of the intangible assets as of June 30, 2010, the estimated future amortization expense is as follows:

(in thousands)
 
Estimated Future Amortization
Expense
         
Three months ended September 30, 2010
 
$
731
 
Fiscal year ended September 30, 2011
   
2,537
 
Fiscal year ended September 30, 2012
   
2,213
 
Fiscal year ended September 30, 2013
   
1,877
 
Fiscal year ended September 30, 2014
   
1,342
 
Thereafter
   
2,649
 
         
Total future amortization expense
 
$
11,349
 

 
NOTE 10.  Accrued Expenses and Other Current Liabilities

The components of accrued expenses and other current liabilities consisted of the following:
(in thousands)
 
 
 
As of
June 30,
2010
   
As of
September 30,
2009
 
             
Compensation-related
  $ 4,964     $ 6,057  
Warranty
    4,385       4,287  
Tangshan termination fee
    2,775       -  
Professional fees
    2,125       1,839  
Royalty
    1,936       1,937  
Deferred revenue and customer deposits
    1,545       886  
Self insurance
    961       1,272  
Income and other taxes
    656       625  
Loss on sale commitments
    349       51  
Restructuring accrual
    230       395  
Loss on purchase commitments
    145       3,821  
Other
    240       713  
                 
Accrued expenses and other current liabilities
  $ 20,311     $ 21,883  

The following table summarizes the changes in the product warranty accrual accounts:

(in thousands)
 
For the Nine Months
Ended June 30,
   
2010
 
2009
                 
Balance at beginning of period
 
$
4,287
   
$
4,640
 
Provision adjustment – expense
   
669
     
1,357
 
Utilization of warranty accrual
   
(571
)
   
(1,664
)
                 
Balance at end of period
 
$
4,385
   
$
4,333
 


Tangshan Termination Fee

On February 3, 2010, the Company entered into a Share Purchase Agreement (the “Purchase Agreement”) to create a joint venture with Tangshan Caofeidian Investment Corporation (“TCIC”), a Chinese investment company located in the Caofeidian Industry Zone, Tangshan City, Hebei Province of China.  The Purchase Agreement provided for the Company to sell a sixty percent (60%) interest in its Fiber Optics business (excluding its satellite communications and specialty photonics fiber optics businesses) to TCIC, which would have been operated as a joint venture had the transaction been closed.  The transaction was dependant upon receiving necessary regulatory approvals from the US government.  In April 2010, the Company and TCIC had made a voluntary joint filing with the Committee on Foreign Investment in the United States (“CFIUS”) in connection with the proposed transaction.

On June 24, 2010, the Company announced that both parties withdrew their joint filing with CFIUS in response to an indication from CFIUS that it had certain concerns about the transaction as it was proposed.

On August 2, 2010, the Company received notice (the “Termination Notice”) from TCIC stating that the Purchase Agreement had been terminated by TCIC.  The Termination Notice states that the Purchase Agreement was terminated pursuant to Section 9.1(m) of the Share Purchase Agreement, which permits the Purchase Agreement to be terminated in the event certain export control licenses are not obtained within the timeframe permitted by the Purchase Agreement.  The Purchase Agreement provides for the Company to pay TCIC a termination fee of $2,775,000 in the event of a termination pursuant to Section 9.1(m).  The Company accrued the termination fee as a SG&A operating expense during the three months ended June 30, 2010.  The parties are currently in discussions and negotiations regarding an alternative transaction between the parties which would not be subject to the same export control licenses and CFIUS review as the Purchase Agreement and the manner and the timing in which the termination fee will be paid.

 
NOTE 11.  Debt
 
Line of Credit

In September 2008, the Company entered into a $25 million asset-backed revolving credit facility with Bank of America, which can be used for working capital, letters of credit and other general corporate purposes.  Subsequently, the credit facility was amended resulting in a reduction in the total loan availability to $14 million.  The credit facility matures in September 2011 and is secured by substantially all of the Company’s assets.  The credit facility is subject to a borrowing base formula based on eligible accounts receivable and provides for prime-based borrowings.

As of June 30, 2010, the Company had a $10.9 million prime rate loan outstanding, with an interest rate of 8.25%, and approximately $2.1 million in outstanding standby letters of credit under this credit facility.  The Company completely paid off the outstanding loan on July 8, 2010 using cash on hand.

The facility is also subject to certain financial covenants.  On February 8, 2010, the Company and Bank of America entered into a Sixth Amendment to the Company’s credit facility, which (a) permits the Company to enter into foreign exchange hedging transactions pursuant to a separate facility with the bank, provided that available amounts under such facility shall be deducted from the maximum revolving loan limit under this facility; and (b) reset the EBITDA financial covenant for the first quarter of fiscal 2010.  On May 6, 2010, the Company and Bank of America entered into a Seventh Amendment to the Company’s credit facility which reset the EBITDA and Fixed Charge Coverage Ratio financial covenants for the second quarter of fiscal 2010 and the remaining quarters of fiscal 2010.  On August 11, 2010, the Company and Bank of America entered into an Eighth Amendment to the Company’s credit facility which reset the EBITDA financial covenant for the third quarter of fiscal 2010.

 
Short-term Debt

In December 2008, the Company borrowed $0.9 million from UBS Securities that was collateralized with auction rate preferred securities.  The average interest rate on the loan is approximately 1.3% and the term of the loan is dependent upon the timing of the settlement of the auction rate securities with UBS Securities.  The auction rate securities were settled at 100% par value and the short-term debt was repaid in July 2010 using cash on hand.

 
NOTE 12.  Commitments and Contingencies

The Company leases certain land, facilities, and equipment under non-cancelable operating leases. The leases typically provide for rental adjustments for increases in base rent (up to specific limits), property taxes, insurance and general property maintenance that would be recorded as rent expense.  Net facility and equipment rent expense under such leases totaled approximately $1.9 million for both the nine months ended June 30, 2010 and 2009.


Estimated future minimum rental payments under the Company's non-cancelable operating leases with an initial or remaining term of one year or more as of June 30, 2010 are as follows:

(in thousands)
 
Estimated Future Minimum Lease Payments
         
Three months ended September 30, 2010
 
$
482
 
Fiscal year ended September 30, 2011
   
1,815
 
Fiscal year ended September 30, 2012
   
1,072
 
Fiscal year ended September 30, 2013
   
799
 
Fiscal year ended September 30, 2014
   
76
 
Thereafter
   
2,698
 
         
Total minimum lease payments
 
$
6,942
 

 
Legal Proceedings

The Company is subject to various legal proceedings and claims that are discussed below. The Company is also subject to certain other legal proceedings and claims that have arisen in the ordinary course of business and which have not been fully adjudicated.  The Company does not believe it has a potential liability related to current legal proceedings and claims that could individually, or in the aggregate, have a material adverse effect on its financial condition, liquidity or results of operations. However, the results of legal proceedings cannot be predicted with certainty. Should the Company fail to prevail in any legal matters or should several legal matters be resolved against the Company in the same reporting period, then the operating results of that particular reporting period could be materially adversely affected.  In the past, the Company settled certain matters that did not individually, or in the aggregate, have a material impact on the Company’s results of operations.

 
a) Intellectual Property Lawsuits

We protect our proprietary technology by applying for patents where appropriate and, in other cases, by preserving the technology, related know-how and information as trade secrets. The success and competitive position of our product lines are significantly impacted by our ability to obtain intellectual property protection for our R&D efforts.

We have, from time to time, exchanged correspondence with third parties regarding the assertion of patent or other intellectual property rights in connection with certain of our products and processes. Additionally, on September 11, 2006, the Company filed a lawsuit against Optium Corporation, currently part of Finisar Corporation (Optium) in the U.S. District Court for the Western District of Pennsylvania for patent infringement of certain patents associated with our Fiber Optics segment. In the suit, the Company and JDS Uniphase Corporation (JDSU) allege that Optium is infringing U.S. Patents numbers 6,282,003 (the “003 patent”) and 6,490,071 (the “071 patent”) with its Prisma II 1550nm transmitters. On March 14, 2007, following denial of a motion to add additional claims to its existing lawsuit, the Company and JDSU filed a second patent suit in the same court against Optium alleging infringement of U.S. Patent No. 6,519,374 (the “374 patent”).  On March 15, 2007, Optium filed a declaratory judgment action against the Company and JDSU. Optium sought in this litigation a declaration that certain products of Optium do not infringe the 374 patent and that the patent is invalid, but the District Court dismissed the action on January 3, 2008 without addressing the merits. The 003 patent, the 071 patent, and the 374 patent are assigned to JDSU and licensed to the Company.

On December 20, 2007, the Company was served with a complaint in another declaratory relief action, which Optium had filed in the U.S. District Court for the Western District of Pennsylvania.  This action sought to have the 003 patent and the 071 patent declared unenforceable because of certain conduct alleged to have occurred in connection with the prosecution of the applications for these patents.  These allegations were substantially the same as those brought by Optium by motion in the Company’s own case against Optium, which motion had been denied by the Court.  On August 11, 2008, both actions pending in the U.S. Western District of Pennsylvania were consolidated before a single judge, and a trial date of October 19, 2009 was set.  On February 18, 2009, the Company’s motion for a summary judgment dismissing Optium’s declaratory relief action was granted, and on March 11, 2009, the Company was notified that Optium intended to file an appeal of this order. On May 5, 2010, the Court of Appeals for the Federal Circuit rejected Optium’s appeal and affirmed the summary judgment dismissing Optium’s declaratory relief action.

On October 19, 2009, the U.S. District Court for the Western District of Pennsylvania granted the Company’s motion for summary judgment that Optium infringed the 374 patent.  In October 2009 the consolidated matters were tried before a jury, which found that all patents asserted against Optium were not invalid, that all claims asserted in the 003 patent and 071 patent were infringed, and that such infringement by Optium was willful where willfulness was asserted.  The jury awarded the Company and JDSU monetary damages totaling approximately $3.4 million.  On June 18, 2010, Optium filed an appeal of this award with the Court of Appeals for the Federal Circuit.   The Company filed its response brief in September 2010.


In accordance with U.S. GAAP, a contingency that might result in a gain should not be reflected in the financial statements because to do so might be to recognize income before its realization.

 
b) Avago-related Litigation

On July 15, 2008, the Company was served with a complaint filed by Avago Technologies and what appear to be affiliates thereof in the United States District Court for the Northern District of California, San Jose Division (Avago Technologies U.S., Inc., et al., Emcore Corporation, et al., Case No.:  C08-3248 JW) (the “Commercial Case”).  In this complaint, Avago asserts claims for breach of contract and breach of express warranty against Venture Corporation Limited (one of the Company’s customers) and asserts a tort claim for negligent interference with prospective economic advantage against the Company.

On December 5, 2008, the Company was also served with a complaint by Avago Technologies filed in the United States District Court for the Northern District of California, San Jose Division alleging infringement of two patents by the Company’s VCSEL products. (Avago Technologies Singapore et al., Emcore Corporation, et al., Case No.:  C08-5394 EMC) (the N.D. CA Patent Case”).  This matter has been stayed pending resolution of the International Trade Commission matter described immediately below.

On March 5, 2009, the Company was notified that, based on a complaint filed by Avago alleging the same patent infringement that formed the basis of the complaint previously filed in the Northern District of California, the U.S. International Trade Commission (the “ITC”) had determined to begin an investigation titled “In the Matter of Certain Optoelectronic Devices, Components Thereof and Products Containing the Same”, Inv. No. 337-TA-669.  This matter was tried before an administrative law judge of the ITC from November 16-20, 2009.

On March 12, 2010, the Company was advised that an initial determination had been issued by the administrative law judge of the ITC that found that one of the two patent claims asserted against the Company related to certain of the Company’s products was both valid and infringed.  This initial determination is subject to review and confirmation by the ITC itself.   On March 29, 2010, the Company filed a petition with the ITC for a review of certain portions of the initial determination that were adverse to the Company.  The ITC declined to review the initial determination.

On July 12, 2010, the ITC issued its Final Determination, as well as a limited exclusion order and cease and desist order directed to the Company’s infringing products which prohibits importation of those products into the United States.  Those remedial orders were reviewed by the President of the United States and his decision to approve those orders was issued on September 10, 2010, thereby prohibiting further importation of the infringing products. These remedial orders do not apply to any of the products sold by the Company’s customers that may contain infringing products.

The ITC does not have the authority to award damages for patent infringement; therefore, there was no financial penalty as a result of the Final Determination.  The Company has formulated and implemented a product redesign intended to eliminate the impact of the accused infringement, the exclusion, and the cease and desist orders issued by the ITC.  The Company continues to actively pursue its re-design strategy, including qualifying the newly re-designed products with certain of its major customers.  The ITC decision will also not be binding in the N.D. CA Patent Case which will remain stayed until all appeals of the ITC decision have been exhausted.

The Company intends to vigorously defend against the allegations of both the N.D. CA Patent Case and the Commercial Case.

 
c) Green and Gold related litigation

On December 23, 2008, Plaintiffs Maurice Prissert and Claude Prissert filed a purported stockholder class action (the “Prissert Class Action”) pursuant to Federal Rule of Civil Procedure 23 allegedly on behalf of a class of Company shareholders against the Company and certain of its present and former directors and officers (the “Individual Defendants”) in the United States District Court for the District of New Mexico captioned, Maurice Prissert and Claude Prissert v. EMCORE Corporation, Adam Gushard, Hong Q. Hou, Reuben F. Richards, Jr., David Danzilio and Thomas Werthan, Case No. 1:08cv1190 (D.N.M.).  The Complaint alleges that Company and the Individual Defendants violated certain provisions of the federal securities laws, including Section 10(b) of the Securities Exchange Act of 1934, arising out of the Company’s disclosure regarding its customer Green and Gold Energy (“GGE”) and the associated backlog of GGE orders with the Company’s Photovoltaics business segment.  The Complaint in the Class Action seeks, among other things, an unspecified amount of compensatory damages and other costs and expenses associated with the maintenance of the Action. On or about February 12, 2009, a second purported stockholder class action (Mueller v. EMCORE Corporation et al., Case No. 1:09cv 133 (D.N.M.)) (the “Mueller Class Action”) was filed in the United States District Court for the District of New Mexico against the same defendants named in the Prissert Class Action, based on substantially the same facts and circumstances, containing substantially the same allegations and seeking substantially the same relief.


Plaintiffs in both class actions have moved to consolidate the matters into a single action.  On September 25, 2009, the court issued an order consolidating both the Prissert and Mueller actions into one consolidated proceeding, but denied plaintiffs motions for appointment of a lead plaintiff or lead plaintiff’s counsel.  On July 15, 2010, the court appointed IBEW Local Union No. 58 Annuity Fund to serve as lead plaintiff (“IBEW”), but denied, without prejudice, IBEW’s motion to appoint lead counsel.  IBEW has not yet renewed its motion to appoint lead counsel.

On January 23, 2009, Plaintiff James E. Stearns filed a purported stockholder derivative action (the “Stearns Derivative Action”) on behalf of the Company against the Individual Defendants, as well as the Company as nominal defendant in the Superior Court of New Jersey, Atlantic County, Chancery Division (James E. Stearns, derivatively on behalf of EMCORE Corporation v. Thomas J. Russell, Robert Bogomolny, Charles Scott, John Gillen, Reuben F. Richards, Jr., Hong Q. Hou, Adam Gushard, David Danzilio and Thomas Werthan, Case No. Atl-C-10-09).  This action is based on essentially the same factual contentions as the Prissert Class Action, and alleges that the Individual Defendants engaged in improprieties and violations of law in connection with the reporting of the GGE backlog.  The Stearns Derivative Action seeks several forms of relief, allegedly on behalf of the Company, including, among other things, damages, equitable relief, corporate governance reforms, an accounting of, rescission of, restitution of, and costs and disbursements of the lawsuit.

On March 11, 2009, Plaintiff Gary Thomas filed a second purported shareholder derivative action (the “Thomas Derivative Action”; together with the Stearns Derivative Action, the “Derivative Actions”) in the U.S. District Court for the District of New Mexico against the Company and certain of the Individual Defendants (Gary Thomas, derivatively on behalf of  EMCORE Corporation v. Thomas J. Russell, Robert Bogomolny, Charles Scott, John Gillen, Reuben F. Richards, Jr., Hong Q. Hou, and EMCORE Corporation, Case No. 1.09-cv-00236, (D.N.M.)).  The Thomas Derivative Action makes the same allegations as the Stearns Derivative Action and seeks essentially the same relief.

The Stearns Derivative Action and the Thomas Derivative action have been consolidated before a single judge in Somerset County, New Jersey, and have been stayed pending the Prissert and Mueller Class Actions.

The Company intends to vigorously defend against the allegations of both the Class Actions and the Derivative Actions.

 
d) Securities Matters

SEC Communications.  On February 24, 2010, the Company received a letter from the Securities and Exchange Commission's Division of Enforcement dated February 2, 2010 stating that the staff has completed its investigation of EMCORE Corporation that the Company had disclosed in its Form 10-K filed for its fiscal year ended September 30, 2009.   The letter further advised the Company that the staff of the Division of Enforcement did not intend to recommend any enforcement action against the Company.

NASDAQ Communication. On March 8, 2010, the Company received notice from the NASDAQ Listings Qualifications group, stating that it had closed its inquiry involving EMCORE Corporation that the Company had disclosed in its Form 10-K filed for its fiscal year ended September 30, 2009.

As of June 30, 2010 and the filing date of this Quarterly Report on Form 10-Q, no amounts have been accrued for any litigation item discussed above since no estimate of loss can be made at this time.

 
NOTE 13.  Income Taxes

During the nine months ended June 30, 2010 and 2009, there were no material increases or decreases in unrecognized tax benefits and management does not anticipate any material increases or decreases in the amounts of unrecognized tax benefits over the next twelve months.  As of June 30, 2010, the Company had approximately $0.2 million of interest and penalties accrued as tax liabilities on the balance sheet.  A reconciliation of the beginning and ending amount of unrecognized gross tax benefits is as follows:

(in thousands)
     
Balance as of September 30, 2009
  $ 374  
         
Subtractions based on tax positions related to the current year
    (17 )
Subtractions for tax positions of prior years
    (19 )
         
Balance as of June 30, 2010
  $ 338  


The Company files income tax returns in the U.S. federal, state, and local jurisdictions and, currently, no federal, state, and local income tax returns are under examination.  The following tax years remain open to income tax examination for each of the more significant jurisdictions where the Company is subject to income taxes: after fiscal year 2006 for U.S. federal; after fiscal year 2005 for the state of California and after fiscal year 2006 for the state of New Mexico.

 
NOTE 14.  Segment Data and Related Information

The Company has five operating divisions: (1) EMCORE Digital Fiber Optics Products, (2) EMCORE Broadband Fiber Optics Products, and (3) EMCORE Hong Kong, which are aggregated as a separate reporting segment, Fiber Optics, and (4) EMCORE Photovoltaics and (5) EMCORE Solar Power, which are aggregated as a separate reporting segment, Photovoltaics.  Fiber Optics revenue is derived primarily from sales of optical components and subsystems for CATV, FTTP, enterprise routers and switches, telecom grooming switches, core routers, high performance servers, supercomputers, and satellite communications data links.   Photovoltaics revenue is derived primarily from the sales of solar power generation products for the space and terrestrial markets, including solar cells, covered interconnected solar cells, satellite solar panels, and CPV solar cells, receiver assemblies, and systems.  The Company evaluates its reportable segments in accordance with ASC 280, Segment Reporting. The Company’s Chief Executive Officer is the chief operating decision maker pursuant to ASC 280, and he allocates resources to segments based on their business prospects, competitive factors, net revenue, operating results and other non-GAAP financial ratios.  Operating income or expense that is not specifically related to an operating segment is charged to a separate unallocated corporate division.
 
The following table sets forth the revenue and percentage of total revenue attributable to each of the Company’s reporting segments.

Segment Revenue
(in thousands)
 
For the Three Months
Ended June 30,
   
2010
 
2009
   
Revenue
   
% of Revenue
 
Revenue
   
% of Revenue
                         
Fiber Optics
  $ 31,483       68 %   $ 22,399       58 %
Photovoltaics
    15,123       32       16,090       42  
                                 
Total revenue
  $ 46,606       100 %   $ 38,489       100 %

Segment Revenue
(in thousands)
 
For the Nine Months
Ended June 30,
   
2010
 
2009
   
Revenue
   
% of Revenue
 
Revenue
   
% of Revenue
                         
Fiber Optics
  $ 87,295       64 %   $ 89,979       66 %
Photovoltaics
    49,907       36       45,850       34  
                                 
Total revenue
  $ 137,202       100 %   $ 135,829       100 %

The following table sets forth the Company’s consolidated revenue by geographic region with revenue assigned to geographic regions based on our customers’ billing address.

Geographic Revenue
(in thousands)
 
For the Three Months
Ended June 30,
 
   
2010
   
2009
 
   
Revenue
   
% of Revenue
   
Revenue
   
% of Revenue
 
                         
United States
  $ 29,617       64 %   $ 23,466       61 %
Asia
    9,426       20       9,427       24  
Europe
    2,868       6       1,733       5  
Other
    4,695       10       3,863       10  
                                 
Total revenue
  $ 46,606       100 %   $ 38,489       100 %

 
Geographic Revenue
(in thousands)
 
For the Nine Months
Ended June 30,
 
   
2010
   
2009
 
   
Revenue
   
% of Revenue
   
Revenue
   
% of Revenue
 
                         
United States
  $ 94,475       69 %   $ 80,562       59 %
Asia
    24,114       17       41,473       31  
Europe
    8,122       6       6,906       5  
Other
    10,491       8       6,888       5  
                                 
Total revenue
  $ 137,202       100 %   $ 135,829       100 %
 
The following table sets forth our significant customers, defined as customers that represented greater than 10% of total consolidated revenue, by reporting segment.

Significant Customers
As a percentage of total consolidated revenue
 
For the Three Months
Ended June 30,
 
For the Nine Months
Ended June 30,
   
2010
 
2009
 
2010
 
2009
Fiber Optics – related customers:
                               
Cisco Systems, Inc.
   
14
%
   
-
     
14
   
-
 
Photovoltaics – related customer:
                               
Loral Space & Communications
   
-
     
12
%
   
10
%
   
14
%

The following table sets forth operating (loss) income attributable to each of the Company’s reporting segments.

Statement of Operations Data
(in thousands)
 
For the Three Months
Ended June 30,
 
For the Nine Months
Ended June 30,
   
2010
 
2009
 
2010
 
2009
Operating (loss) income:
                               
Fiber Optics segment
 
$
(5,000
)
 
$
(45,380
)
 
$
(15,680
)
 
$
(110,580
)
Photovoltaics segment
   
(3,342
)
   
(616
)
   
(3,950
)
   
(13,739
)
                                 
Operating loss
 
$
(8,342
)
 
$
(45,996
)
 
$
(19,630
)
 
$
(124,319
)

The following table sets forth the depreciation and amortization attributable to each of the Company’s reporting segments.

Segment Depreciation and Amortization
(in thousands)
 
For the Three Months
Ended June 30,
 
For the Nine Months
Ended June 30,
   
2010
 
2009
 
2010
 
2009
                                 
Fiber Optics segment
 
$
1,721
   
$
2,860
   
$
5,272
   
$
8,475
 
Photovoltaics segment
   
1,309
     
1,494
     
3,994
     
4,387
 
                                 
Depreciation and amortization
 
$
3,030
   
$
4,354
   
$
9,266
   
$
12,862
 


Long-lived assets consist primarily of property, plant, and equipment and also goodwill and intangible assets.  The following table sets forth long-lived assets for each of the Company’s reporting segments and Corporate division.

Long-lived Assets
(in thousands)
 
As of
June 30,
2010
 
As of
September 30,
2009
                 
Fiber Optics segment
 
$
32,418
   
$
37,399
 
Photovoltaics segment
   
46,997
     
50,169
 
Corporate division
   
993
     
826
 
                 
Long-lived assets
 
$
80,408
   
$
88,394
 

 
NOTE 15.  Fair Value Accounting

ASC 820, Fair Value Measurements and Disclosures, establishes a valuation hierarchy for disclosure of the inputs to valuation used to measure fair value. Valuation techniques used to measure fair value under ASC 820 must maximize the use of observable inputs and minimize the use of unobservable inputs. The standard describes a fair value hierarchy based on three levels of inputs, of which the first two are considered observable and the last unobservable, that may be used to measure fair value which are the following:

 
-
Level 1 inputs are unadjusted quoted prices in active markets for identical assets or liabilities.

 
-
Level 2 inputs are quoted prices for similar assets and liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument.

 
-
Level 3 inputs are unobservable inputs based on our own assumptions used to measure assets and liabilities at fair value. A financial asset or liability’s classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement.

The following table provides the Company’s financial assets and liabilities, consisting of the following types of instruments, measured at fair value on a recurring basis:

   
As of June 30, 2010
 
   
Quoted Prices in Active Markets for Identical Assets
[Level 1]
   
Significant Other Observable Remaining Inputs
[Level 2]
   
Significant Unobservable Inputs
[Level 3]
    Total  
Assets
                               
Money market fund deposits
 
$
14,404
   
$
-
   
$
-