UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

Form 10-Q

 

 

Commission File Number 000-06920

 

Applied Materials, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

 

(Registrant’s telephone number, including area code)

(408) 727-5555

 

 

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 þ     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 þ

 

Number of shares outstanding of the issuer’s common stock as of January 27, 2008: 1,353,612,157

 

 

 

PART I. FINANCIAL INFORMATION

 

 

APPLIED MATERIALS, INC.

 

CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS

 

 

See accompanying Notes to Consolidated Condensed Financial Statements.

APPLIED MATERIALS, INC.

 

CONSOLIDATED CONDENSED BALANCE SHEETS*

 

 

 

 

See accompanying Notes to Consolidated Condensed Financial Statements.

APPLIED MATERIALS, INC.

 

CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS

 

 

See accompanying Notes to Consolidated Condensed Financial Statements.

APPLIED MATERIALS, INC.

 

NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS

(Unaudited)

 

 

Basis of Presentation

 

In the opinion of management, the unaudited interim consolidated condensed financial statements of Applied Materials, Inc. and its subsidiaries (Applied or the Company) included herein have been prepared on a basis consistent with the October 28, 2007 audited consolidated financial statements and include all material adjustments, consisting of normal recurring adjustments, necessary to fairly present the information set forth therein. These unaudited interim consolidated condensed financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto included in Applied’s Annual Report on Form 10-K for the fiscal year ended October 28, 2007 (2007 Form 10-K). Applied’s results of operations for the three months ended January 27, 2008 are not necessarily indicative of future operating results.

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (United States) requires management to make judgments, estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ materially from those estimates.

 

Segment Reclassifications

 

Effective in the first quarter of fiscal 2008, Applied renamed two of its reportable segments. The Fab Solutions segment has been renamed Applied Global Services, and the Adjacent Technologies segment has been renamed Energy and Environmental Solutions. In addition, Applied changed its management reporting system for services, with all service results reported in the Applied Global Services segment. Fiscal 2007 segment information has been reclassified to conform to the fiscal 2008 presentation.

 

Equity-Based Compensation

 

Applied has adopted stock plans that provide for grants to employees of equity-based awards, including stock options, restricted stock and restricted stock units (also referred to as “performance shares” under the Applied Materials, Inc. Employee Stock Incentive Plan). In addition, the Employee Stock Incentive Plan provides for the automatic grant of restricted stock units to non-employee directors and permits the grant of equity-based awards to consultants. Applied also has two Employee Stock Purchase Plans (ESPP) for United States and international employees, respectively, which enable employees to purchase Applied common stock.

 

During the three months ended January 27, 2008 and January 28, 2007, Applied recognized equity-based compensation expense related to stock options, ESPP shares, restricted stock units and restricted stock of $39 million and $35 million, respectively. During the three months ended January 27, 2008 and January 28, 2007, Applied recognized income tax benefits related to equity-based compensation of $11 million and $10 million, respectively. The equity-based compensation expense related to restricted stock units and restricted stock for the three months ended January 27, 2008 and January 28, 2007 was $33 million and $20 million, respectively. The estimated fair value of Applied’s equity-based awards, less expected forfeitures, is amortized over the awards’ service periods on a straight-line basis.

 

Stock Options

 

The exercise price of each stock option equals the market price of Applied common stock on the date of grant. Most options are scheduled to vest over four years and expire no later than seven years from the grant date. The fair value of each option grant is estimated on the date of grant using the Black-Scholes option pricing model. This model was developed for use in estimating the value of publicly traded options that have no vesting restrictions and

are fully transferable. Applied’s employee stock options have characteristics significantly different from those of publicly traded options. The weighted average assumptions used in the model are outlined in the following table:

 

 

The computation of the expected volatility assumption used in the Black-Scholes calculations for new grants is based on a combination of historical and implied volatilities. When establishing the expected life assumption, Applied annually reviews historical employee exercise behavior with respect to option grants with similar vesting periods. No options were granted in the first quarter of fiscal 2008. There were 278,000 options granted in the three months ended January 28, 2007. The weighted average grant date fair value of options granted during the three months ended January 28, 2007 was $5.12.

 

Employee Stock Purchase Plans

 

Under the ESPP, substantially all employees may purchase Applied common stock through payroll deductions at a price equal to 85 percent of the lower of the fair market value of Applied stock at the beginning of the applicable offering period or at the end of each applicable purchase period. No shares were issued under the ESPP during the quarters ended January 27, 2008 and January 28, 2007. Compensation expense is calculated using the fair value of the employees’ purchase rights under the Black-Scholes model.

 

Restricted Stock Units and Restricted Stock

 

Restricted stock units are converted into shares of Applied common stock upon vesting on a one-for-one basis. Restricted stock units vest over a minimum of three years and typically vest over three to four years. Vesting of restricted stock units usually is subject to the employee’s continued service with Applied. The compensation expense related to these awards is determined using the fair value of Applied common stock on the date of the grant. There were 1,739,000 and 1,324,000 restricted stock units granted in the three months ended January 27, 2008 and January 28, 2007, respectively.

 

Beginning in fiscal 2007, Applied initiated a performance-based share award program for named executive officers and other key employees. These awards vest only if specific performance goals set by the Human Resources and Compensation Committee (the Committee) are achieved. The goals require the achievement of specified levels of Applied’s annual operating profit and also that the officer remain an employee of Applied through the vesting date. The fair value of the performance-based restricted stock awards and restricted stock is estimated using the fair value of Applied common stock on the date of the grant and assumes that performance goals will be achieved. If achieved, the grant vests over a specified remaining service period. If such goals are not met, no compensation cost is recognized and any recognized compensation cost is reversed. The expected cost of the grant is reflected over the service period, and is reduced for estimated forfeitures. The Committee approved 1,300,000 and 1,950,000 of performance-based restricted stock units under this program in the three months ended January 27, 2008 and January 28, 2007, respectively. The Committee also approved the issuance of 100,000 and 150,000 shares of performance-based restricted stock in the three months ended January 27, 2008 and January 28, 2007, respectively, to Applied’s President and Chief Executive Officer at $0.01 per share. As of January 27, 2008, the performance goals associated with the fiscal 2007 awards were achieved.

 

 

Basic earnings per share is determined using the weighted average number of common shares outstanding during the period. Diluted earnings per share is determined using the weighted average number of common shares and potential common shares (representing the dilutive effect of stock options, restricted stock units, ESPP shares and amounts due under the agreements associated with the accelerated stock buyback program in fiscal

2007) outstanding during the period. Applied’s net income has not been adjusted for any period presented for purposes of computing basic or diluted earnings per share. For purposes of computing diluted earnings per share, weighted average potential common shares do not include stock options with an exercise price greater than the average fair market value of Applied common stock for the period, as the effect would be anti-dilutive. Accordingly, options to purchase 52,548,000 and 90,744,000 shares of common stock for the three months ended January 27, 2008 and January 28, 2007, respectively, were excluded from the computation.

 

 

Applied has agreements with various financial institutions to sell accounts receivable from selected customers. Applied also discounts letters of credit through various financial institutions. Under these agreements, Applied discounted letters of credit in the amounts of $15 million and $235 million for the three months ended January 27, 2008 and January 28, 2007, respectively. Financing charges on discounting of letters of credit are included in interest expense in the accompanying Consolidated Condensed Statements of Operations and were not material for all periods presented.

 

 

Inventories are stated at the lower of cost or market, with cost determined on a first-in, first-out (FIFO) basis. Components of inventories were as follows:

 

 

Included in finished goods inventory is $155 million at January 27, 2008, and $168 million at October 28, 2007, of newly-introduced systems at customer locations where the sales transaction did not meet Applied’s revenue recognition criteria, as set forth in Note 1 of Notes to the Consolidated Financial Statements in Applied’s 2007 Form 10-K.

 

 

Details of goodwill and unamortized intangible assets were as follows:

 

 

Goodwill and unamortized intangible assets are not amortized but are subject to annual reviews for impairment, which Applied performs during the fourth quarter of each fiscal year. Applied conducted these impairment tests in the fourth quarter of fiscal 2007, and the results of these tests indicated that Applied’s goodwill and unamortized intangible assets were not impaired. Goodwill and unamortized intangible assets are also subject to review for impairment when circumstances or events occur during the year that indicate that the assets may be impaired. The goodwill balance as of October 28, 2007 increased by $6 million from the amount previously reported due to an immaterial correction to the purchase price allocation for the acquisition of HCT Shaping Systems S.A. From October 28, 2007 to January 27, 2008, the change in goodwill was $11 million, primarily due to

the acquisition of certain net assets of Edwards Vacuum, Inc., which was completed in the first quarter of fiscal 2008. Other intangible assets that are not subject to amortization consist primarily of a trade name. As of January 27, 2008, goodwill and unamortized intangible assets by reportable segment were: Energy and Environmental Solutions, $492 million; Silicon, $224 million; Applied Global Services, $204 million and Display, $116 million. For additional details, see Note 12.

 

Details of amortized intangible assets were as follows:

 

 

Purchased technology and other intangible assets are amortized over their estimated useful lives of 1 to 15 years using the straight-line method. Aggregate amortization expense was $25 million and $9 million for the three months ended January 27, 2008 and January 28, 2007, respectively. As of January 27, 2008, future estimated amortization expense is expected to be $67 million for the remainder of fiscal 2008, $46 million for fiscal 2009, $45 million for fiscal 2010, $42 million for fiscal 2011, $41 million for fiscal 2012, and $96 million thereafter. As of January 27, 2008, amortized intangible assets by reportable segment were: Energy and Environmental Solutions, $228 million; Applied Global Services, $57 million; Display, $48 million; and Silicon, $4 million.

 

 

Accounts Payable and Accrued Expenses

 

Components of accounts payable and accrued expenses were as follows:

 

 

Changes in the warranty reserves during the three months ended January 27, 2008 and January 28, 2007 were as follows:

 

Applied products are generally sold with a 12-month warranty period following installation. The provision for the estimated cost of warranty is recorded when revenue is recognized. Parts and labor are covered under the terms of the warranty agreement. The warranty provision is based on historical experience by product, configuration and geographic region. Quarterly warranty consumption is generally associated with sales that occurred during the preceding four quarters, and quarterly warranty provisions are generally related to the current quarter’s sales.

 

Guarantees

 

During the ordinary course of business, Applied provides standby letters of credit or other guarantee instruments to certain parties as required for certain transactions initiated by either Applied or its subsidiaries. As of January 27, 2008, the maximum potential amount of future payments that Applied could be required to make under these guarantee arrangements was $208 million. Applied has not recorded any liability in connection with these guarantee arrangements beyond that required to account for the underlying transaction being guaranteed. Applied does not believe, based on historical experience and information currently available, that it is probable that any amounts will be required to be paid under these guarantee arrangements.

 

Applied also has agreements with various global banks to facilitate subsidiary banking operations world-wide, including overdraft arrangements, bank guarantees and letters of credit. As of January 27, 2008, Applied Materials, Inc. has provided parent guarantees to banks for approximately $173 million to cover these arrangements.

 

Legal matters

 

Linear Technology

 

On March 12, 2002, Linear Technology Corp. (LTC) filed a lawsuit against Applied in the Superior Court of the County of Santa Clara, California, alleging claims for breach of contract, fraud and deceit, negligent misrepresentation, suppression of fact, unfair competition, breach of warranty, express contractual indemnity, implied equitable indemnity and declaratory relief related to LTC’s assertion that Applied is obligated to indemnify and defend LTC for certain claims in an underlying patent infringement lawsuit brought by Texas Instruments, Inc. After the Court dismissed many of its claims, LTC amended its complaint. LTC’s Amended Complaint, as well as its Second, Third and Fourth Amended Complaints, were dismissed by the Court in whole or in part. On July 7, 2004, LTC filed a Fifth Amended Complaint, which the Court dismissed with prejudice on October 5, 2004. On January 11, 2005, LTC filed a notice of appeal of the dismissal of its complaint. On June 19, 2007, the Court of Appeals entered an order that upheld the trial court’s dismissal of LTC’s claims for fraud and deceit, but reversed the trial court’s dismissal of LTC’s remaining claims and remanded the case to the trial court for further proceedings. Applied filed a petition for review by the California Supreme Court of the reversal and remand order of the Court of Appeal. On October 19, 2007, the California Supreme Court denied Applied’s petition for review and returned the case to the Santa Clara Superior Court for further proceedings. Applied and LTC subsequently settled the lawsuit on terms that are not material to Applied, and the Court dismissed the lawsuit in January, 2008.

 

Jusung

 

On December 24, 2003, Applied filed a lawsuit against Jusung Engineering Co., Ltd. (Jusung Engineering) and Jusung Pacific Co., Ltd. (Jusung Pacific, referred to together with Jusung Engineering as Jusung) in Tao-Yuan District Court in Taiwan, captioned Applied Materials, Inc. v. Jusung Engineering Co., Ltd. The lawsuit alleges that Jusung is infringing a patent related to chemical vapor deposition owned by Applied. In the lawsuit, Applied seeks a provisional injunction prohibiting Jusung from importing, using, manufacturing, servicing or selling in Taiwan certain flat panel display manufacturing equipment. On December 25, 2003, the Tao-Yuan District Court ruled in favor of Applied’s request for a provisional injunction and, on January 14, 2004, the Court issued a provisional injunction order against Jusung Pacific. Jusung Pacific appealed those decisions, and the decisions were affirmed on appeal. On January 30, 2004, Jusung Pacific requested permission to post a counterbond to have the Jusung Pacific injunction lifted. Jusung Pacific’s counterbond request was granted and, on March 30, 2004, the provisional injunction order was lifted. At Applied’s request, on December 11, 2004, the District Court issued a provisional injunction order against Jusung Engineering. Jusung Engineering appealed that order, and the order was affirmed on appeal. Jusung Engineering also requested permission to post a counterbond to have the Jusung Engineering

injunction lifted. Jusung Engineering’s counterbond request was granted, and, on April 25, 2005, the provisional injunction order against Jusung Engineering was lifted. Applied has appealed both counterbond decisions. On June 30, 2004, Applied filed a “main action” patent infringement complaint against Jusung in the Hsinchu District Court in Taiwan, captioned Applied Materials, Inc. v. Jusung Engineering Co., Ltd. In the lawsuit, Applied seeks damages and a permanent injunction for infringement of the same patent. The decisions regarding the provisional injunction and counterbond have no effect on the main action patent infringement lawsuit filed by Applied. In August 2006, the Hsinchu Court set the litigation fee and the litigation security payment, and the main action is now proceeding on its merits. This same patent is also the subject of an invalidity proceeding filed in the Taiwanese Patent and Trademark Office by Jusung Pacific in June 2004. Applied believes that it has meritorious claims and defenses that it intends to pursue vigorously.

 

On June 13, 2006, Applied filed an action in the Taiwanese Patent and Trademark Office challenging the validity of a patent owned by Jusung Engineering related to the severability of the transfer chamber. On June 20, 2006, Jusung Engineering filed a lawsuit against Applied and Applied’s subsidiary, AKT, in Hsinchu District Court in Taiwan, captioned Jusung Engineering, Co. Ltd. v. AKT America, Inc. (AKT America) and Applied Materials, Inc., alleging infringement of this patent. Jusung Engineering’s lawsuit seeks damages, costs and attorneys’ fees. Applied believes that it has meritorious defenses that it intends to pursue vigorously.

 

On January 31, 2007, Applied received notice that Jusung filed a complaint of private prosecution in the Taipei District Court of Taiwan dated November 10, 2006, entitled Jusung Engineering Co., Ltd. v. M. Splinter, Y. Lin, C. Lai and J. Lin. The complaint alleges that Applied’s outside counsel received from the Court and used a copy of an expert report that Jusung had filed in the ongoing patent infringement lawsuits and that Jusung had intended to remain confidential. Jusung named as defendants Applied’s outside counsel in Taiwan, as well as Michael R. Splinter, Applied’s President and Chief Executive Officer, as the statutory representative of Applied. On April 27, 2007 the Taipei District Court dismissed Jusung’s private prosecution complaint. Jusung filed an appeal of the dismissal to the High Court. The High Court affirmed the District Court’s rejection of the private prosecution complaint on June 25, 2007. After the dismissal of the private prosecution complaint, the matter was transferred to the Taipei District Attorney’s Office, which issued a ruling not to prosecute. This ruling was reviewed by the District Attorney’s review body, which in October 2007 returned the matter to the Taipei District Attorney’s Office for further consideration. Applied believes that it has meritorious defenses that it intends to pursue vigorously.

 

On April 3, 2007, Jusung filed a complaint against AKT America, Inc., and one of its suppliers in Seoul Central District Court in Seoul, Korea, captioned Jusung Engineering, Co. Ltd. v. AKT America, Inc. The complaint alleges infringement of a Jusung patent involving the showerhead assembly of PECVD equipment for LCDs and seeks injunctive relief. On June 9, 2007, AKT America and its supplier filed an invalidation action with the Korean Intellectual Property Office (KIPO) against the patent asserted by Jusung. On November 30, 2007, the KIPO ruled that the Jusung patent was invalid. On August 13, 2007, Applied filed a complaint against Jusung in the Seoul Central District Court in Seoul, Korea, captioned Applied Materials, Inc. v. Jusung Engineering Ltd. The complaint alleges infringement of an Applied patent involving a substrate support or housing for a substrate supporting pin used in PECVD equipment for LCDs and seeks both monetary damages and injunctive relief. On October 29, 2007, Jusung filed an action with the KIPO seeking to invalidate Applied’s substrate patent. Applied has initiated a confirmation of scope action with the Intellectual Property Tribunal of the KIPO based on the same patent. Applied believes that it has meritorious claims and defenses in these actions that it intends to pursue vigorously.

 

On April 10, 2004, the Taiwan Fair Trade Commission (TFTC) notified AKT America that, pursuant to a complaint filed by Jusung, the TFTC had begun an investigation into whether AKT America had violated the Taiwan Fair Trade Act, and specifically whether AKT America violated the Taiwan Guidelines for the Review of Cases Involving Enterprises Issuing Warning Letters for Infringement on Copyright, Trademark and Patent Rights by allegedly notifying customers about AKT America patent rights and the infringement of those rights by Jusung. On June 15, 2004, the TFTC notified Applied that Applied also was the subject of the investigation. The TFTC subsequently notified Applied and AKT America that there was insufficient evidence to support a claim against either company. Jusung appealed the TFTC’s decision, and the appeals court affirmed the decision of the TFTC. Jusung appealed the appeals court’s affirmation of the decision of the TFTC, and in January 2007, the Taipei High

Administrative Court dismissed Jusung’s appeal. In February 2007, Jusung appealed the dismissal to the Supreme Administrative Court of Taiwan. Applied believes that Jusung’s complaint is without merit.

 

Silicon Services Consortium

 

On January 19, 2006, five companies that sell refurbished Applied tools (Silicon Services Consortium Inc., Semiconductor Support Services Co., OEM Surplus, Inc., Precision Technician Inc., and Semiconductor Equipment Specialist, Inc.) filed a lawsuit against Applied in the United States District Court for the Western District of Texas, captioned Silicon Services Consortium, Inc., et al. v. Applied Materials, Inc. The plaintiffs claim that a policy that Applied announced in January 2005 of limiting the sale of certain parts to them constituted an unlawful attempt to monopolize the refurbishment business, an interference with existing contracts, and an interference with prospective business relationships. The suit seeks injunctive relief, damages, costs and attorneys’ fees. After Applied filed a motion to dismiss the original complaint, the plaintiffs filed an amended complaint alleging similar conduct. Applied filed a motion to dismiss the amended complaint on April 7, 2006, which the Court denied on February 16, 2007. On January 17, 2007, Applied filed a counterclaim asserting claims for patent infringement, trademark infringement, trademark dilution, unfair competition, and misuse and misappropriation of trade secrets against each of the five plaintiffs/counterdefendants, seeking damages as well as injunctive relief. All claims between Applied and Precision Technician were dismissed in September 2007 pursuant to a settlement, with no payment by either party. The Court began a Markman hearing on October 18, 2007, continued that hearing to December 2007, and directed the parties to participate in mediation in November 2007. In December 2007, Applied reached a settlement with Semiconductor Equipment Specialist of all pending claims between them for an amount that is not material to Applied. The Court has scheduled trial of the remaining claims to commence on November 3, 2008. Applied believes that it has meritorious claims and defenses that it intends to pursue vigorously.

 

From time to time, Applied receives notification from third parties, including customers and suppliers, seeking indemnification, litigation support, payment of money or other actions by Applied in connection with claims made against them. In addition, from time to time, Applied receives notification from third parties claiming that Applied may be or is infringing their intellectual property or other rights. Applied also is subject to various other legal proceedings and claims, both asserted and unasserted, that arise in the ordinary course of business.

 

Although the outcome of the above-described matters or these claims and proceedings cannot be predicted with certainty, Applied does not believe that any of these proceedings or other claims will have a material adverse effect on its consolidated financial condition or results of operations.

 

 

On January 15, 2008, Applied announced a global cost reduction plan (the Plan) that primarily affected its Silicon and Applied Global Services segments and related support organizations. As part of the Plan, Applied will reduce its global workforce through a combination of job elimination and attrition. Applied expects to complete the Plan by the fourth quarter of fiscal 2008. In the first quarter of fiscal 2008, Applied recorded restructuring charges of $38 million, consisting primarily of employee termination costs to reduce its workforce by approximately 500 positions. The affected employees were based in North America, Europe and Asia and represented multiple functions.

 

Changes in restructuring reserves for the Plan for the three months ended January 27, 2008 were as follows:

 

 

On February 9, 2007, the Board of Directors of Applied approved a plan (the Implant Plan) to cease development of beamline implant products for semiconductor manufacturing and curtail the operations of its Implant group based in Horsham, England. Under the Plan, Applied closed its research and development and manufacturing operations in Horsham in October 2007. The total cost of implementing the Implant Plan is expected

to be $110 million, and is reported in the Consolidated Condensed Statements of Operations under cost of products sold and operating expenses (including restructuring and asset impairment charges). The majority of the cash outlays in connection with the Implant Plan occurred in fiscal 2007. The Implant group operated in the Silicon segment and the results of its operations were not material to the segment’s financial position or results of operations.

 

Costs under the Implant Plan in fiscal 2007 consisted primarily of inventory-related charges reported as cost of products sold of $56 million, other operating expenses of $10 million, and restructuring and asset impairment charges of $30 million. Applied recorded restructuring charges of $22 million, consisting primarily of employee termination costs to reduce its workforce by approximately 215 positions. The majority of the affected employees were based in Horsham, England and represented multiple functions. Asset impairment charges included $8 million of fixed asset write-offs.

 

Costs under the Implant Plan for three months ended January 27, 2008 consisted primarily of restructuring charges of $11 million and other operating expenses of $1 million.

 

Changes in restructuring reserves related to the Implant Plan for the three months ended January 27, 2008 were as follows:

 

 

Changes in restructuring reserves for the three months ended January 27, 2008 for facilities realignment programs initiated in prior periods, were as follows:

 

 

 

Applied’s derivative financial instruments, consisting of currency forward exchange and option contracts, are recorded at fair value on the Consolidated Condensed Balance Sheet, either in other current assets or accounts payable and accrued expenses. Changes in the fair value of derivatives that do not qualify for hedge accounting treatment, as well as the ineffective portion of any hedges, are recognized in the consolidated results of operations. The effective portion of the gain/(loss) is reported as a component of accumulated other comprehensive income in stockholders’ equity and is reclassified into results of operations when the hedged transaction affects income/(loss). All amounts included in accumulated other comprehensive income as of January 27, 2008 will generally be reclassified into earnings within 12 months. Changes in the fair value of currency forward exchange and option contracts due to changes in time value are excluded from the assessment of effectiveness and are recognized in cost of products sold or expensed. The change in option and forward time value was not material for all periods presented. If the transaction being hedged fails to occur, or if a portion of any derivative is deemed to be ineffective, Applied promptly recognizes the gain/(loss) on the associated financial instrument in general and administrative expenses. The amounts recognized due to the anticipated transactions failing to occur or ineffective hedges were not material for all periods presented.

 

Accumulated other comprehensive income related to derivative activities for the three months ended January 27, 2008, increased by $2 million due to net increase in the intrinsic value of derivative instruments qualifying as cash flow hedges.

 

Comprehensive Income

 

Components of comprehensive income, on an after-tax basis where applicable, were as follows:

 

 

Components of accumulated other comprehensive income, on an after-tax basis where applicable, were as follows:

 

 

Stock Repurchase Program

 

Since March 1996, Applied has systematically repurchased shares of its common stock in the open market. In March 2006, the Board of Directors approved a stock repurchase program for up to $5.0 billion in repurchases over the next three years ending in March 2009. Pursuant to this authorization, on September 18, 2006, Applied entered into accelerated stock buyback agreements with Goldman, Sachs & Co. (Goldman Sachs), under which Applied agreed to purchase from Goldman Sachs outstanding shares of Applied common stock for an initial purchase price of $2.5 billion. Under the agreements, Applied purchased 145 million shares of Applied common stock on September 18, 2006 at a price per share of $17.20, and Goldman Sachs agreed to purchase an equivalent number of shares in the open market over the following four months. At the end of the four month period, Applied was entitled to or subject to a price adjustment based upon the volume weighted average price of Applied common stock during the purchase period that could be settled, at Applied’s option, in cash or shares of its common stock. On January 24, 2007, Applied settled the price adjustment of $132 million by payment in cash to Goldman Sachs, resulting in an adjusted price per share of $18.08. The repurchase was funded with Applied’s existing cash and investments and reported as treasury stock.

 

On September 15, 2006, the Board of Directors approved a new stock repurchase program for up to $5.0 billion in repurchases over the next three years ending in September 2009 that superseded the previous program, of which authorization for $3.2 billion of repurchases remained as of January 27, 2008. Under this authorization, Applied is continuing a systematic stock repurchase program and also may make supplemental stock repurchases from time to time, depending on market conditions, stock price and other factors.

 

During the three months ended January 27, 2008, Applied repurchased 33,629,000 shares of its common stock at an average price of $17.84 for a total cash outlay of $600 million. There were no common stock repurchases made during the first quarter of fiscal 2007.

Dividends

 

On September 11, 2007, Applied’s Board of Directors declared a quarterly cash dividend in the amount of $0.06 per share that was paid on December 6, 2007 to stockholders of record as of November 15, 2007. On December 11, 2007, Applied’s Board of Directors declared a quarterly cash dividend in the amount of $0.06 per share payable on March 6, 2008 to stockholders of record as of February 14, 2008. The declaration of any future cash dividend is at the discretion of the Board of Directors and will depend on Applied’s financial condition, results of operations, capital requirements, business conditions and other factors.

 

 

Applied sponsors a number of employee benefit plans, including defined benefit plans of certain foreign subsidiaries. The components of the net periodic pension costs of these defined benefit plans for the three months ended January 27, 2008 and January 28, 2007 were as follows:

 

 

 

Applied has credit facilities for unsecured borrowings in various currencies of up to $1.1 billion, of which $1.0 billion is comprised of a 5-year revolving credit agreement with a group of banks that is scheduled to expire in January 2012. This agreement provides for borrowings in United States dollars at interest rates keyed to one of the two rates selected by Applied for each advance and includes financial and other covenants with which Applied was in compliance at January 27, 2008. No amounts were outstanding under this agreement at January 27, 2008. Of the remaining credit facilities, $143 million are with Japanese banks at rates indexed to their prime reference rate denominated in Japanese yen. No amounts were outstanding under these credit facilities at January 27, 2008.

 

 

On November 9, 2007, Applied purchased from Edwards Vacuum, Inc. certain assets of its Kachina semiconductor equipment parts cleaning and refurbishment business for $19 million. The acquisition expands Applied’s existing Chamber Performance Services network of facilities that provide customers worldwide with technology and support for maintaining their chamber components. In connection with this acquisition, Applied recorded goodwill of $13 million and an intangible asset of $3 million (customer relationships which will be amortized over 13 years). The acquired business is reported under the Applied Global Services segment.

 

On August 23, 2007, Applied acquired all of the outstanding shares of Switzerland-based HCT Shaping Systems SA (HCT) for $463 million in cash, net of cash acquired. HCT is a leading supplier of precision wafering systems used principally in manufacturing crystalline silicon (c-Si) substrates for the solar industry. In connection with this acquisition, Applied recorded goodwill of $354 million and other intangible assets of $180 million. Of the $180 million of acquired intangible assets, $59 million was assigned to purchased technology (to be amortized over 11 years), $59 million was assigned to customer relationships (to be amortized over 7 years), $47 million was assigned to acquired backlog (to be amortized over 1 year), $8 million was assigned to trademarks and tradenames (to be amortized over 13 years) and $7 million was assigned to covenants not to compete (to be amortized over 3 years). The acquired business is reported under the Energy and Environmental Solutions segment.

On March 30, 2007, Applied purchased Brooks Software, a division of Brooks Automation, Inc., for $137 million in cash. The acquired business is a leading provider of factory management and control software to the semiconductor and flat panel industries. The products complement Applied’s existing software applications and enable Applied to offer customers a comprehensive computer integrated manufacturing (CIM) solution for optimizing fab operations. Applied recorded an in-process research and development (IPR&D) expense of $5 million, reported as research, development and engineering expense, goodwill of $77 million, and other intangible assets of $47 million. Of the $47 million of acquired intangible assets, $21 million was assigned to purchased technology (to be amortized over 4 to 11 years), $21 million was assigned to maintenance contracts (to be amortized over 7 years), $2 million was assigned to acquired backlog (to be amortized over 1 year), $2 million was assigned to trademarks and tradenames (to be amortized over 7 years) and $1 million was assigned to customer relationships (to be amortized over 4 years). The acquired business is reported under the Applied Global Services segment.

 

The acquired IPR&D expense was determined by identifying research projects for which technological feasibility had not been established and no alternative future use existed. The value of the projects identified as in-process was determined by estimating the future cash flows from the projects once commercially feasible, discounting the net cash flows back to their present value at a rate commensurate with the level of risk and maturity of the projects, and then applying a percentage of completion to the calculated value.

 

For all of the purchase business combinations discussed above, the results of operations prior to the acquisition dates were not material in relation to those of Applied for any of the periods presented herein. Goodwill is not amortized but is reviewed periodically for impairment, and purchased technology is amortized over its useful life of 1 to 15 years.

 

 

Applied’s effective income tax rate for the first quarter of fiscal 2008 was 32.6 percent and includes the impact of restructuring charges (See Note 7). Applied’s effective income tax rate was 28.6 percent for the comparable quarter of fiscal 2007 and included benefits of $30 million due primarily to a favorable resolution of audits of prior years’ income tax filings. Applied’s future effective income tax rate depends on various factors, such as tax legislation, the geographic composition of Applied’s pre-tax income, and the tax rate on equity compensation. Management carefully monitors these factors and timely adjusts the interim income tax rate accordingly.

 

In June 2006, the Financial Accounting Standards Board (FASB) issued Interpretation No. 48, “Accounting for Uncertainty in Income Taxes” (FIN 48). FIN 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance with Statement of Financial Accounting Standards No. 109, “Accounting for Income Taxes” (SFAS 109). This interpretation prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. FIN 48 also provides guidance on derecognition of tax benefits, classification on the balance sheet, interest and penalties, accounting in interim periods, disclosure, and transition. Applied implemented FIN 48 effective October 29, 2007. The implementation of FIN 48 did not result in an increase or decrease in liability for unrecognized tax benefits.

 

Applied has unrecognized tax benefits of $52 million as of October 29, 2007, all of which, if recognized, would result in a reduction of Applied’s effective tax rate. Applied recorded an increase in its unrecognized tax benefits of $1 million as of January 28, 2008.

 

The gross liability for unrecognized tax benefits was $60 million, exclusive of interest and penalties. Interest and penalties related to uncertain tax positions were $11 million and are recognized in the provision for income taxes line item of the Consolidated Condensed Statement of Operations. Applied had no tax positions for which it was reasonably possible the liability for unrecognized tax benefits will significantly increase or decrease within the next 12 months.

 

A number of Applied’s tax returns remain subject to examination by taxing authorities. These include United States federal returns for 2005 and after, tax returns in certain states for 2002 and after, and tax returns in certain jurisdictions outside of the United States for 2003 and after.

 

Applied’s four reportable segments are: Silicon, Applied Global Services, Display, and Energy and Environmental Solutions. Prior to the first quarter of fiscal 2008, the Applied Global Services segment was presented as Fab Solutions and the Energy and Environmental Solutions segment was presented as Adjacent Technologies. Applied’s chief operating decision-maker has been identified as the President and CEO, who reviews operating results to make decisions about allocating resources and assessing performance for the entire Company. Segment information is presented based upon Applied’s management organization structure as of January 27, 2008 and the distinctive nature of each segment. Future changes to this internal financial structure may result in changes to the reportable segments disclosed.

 

Each reportable segment is separately managed and has separate financial results that are reviewed by Applied’s chief operating decision-maker. Each reportable segment contains closely related products that are unique to the particular segment. Segment operating income is determined based upon internal performance measures used by the chief operating decision-maker.

 

Applied derives the segment results from its internal management reporting system. The accounting policies Applied uses to derive reportable segment results are substantially the same as those used for external reporting purposes. Management measures the performance of each reportable segment based upon several metrics, including orders, net sales and operating income. Management uses these results to evaluate the performance of, and to assign resources to, each of the reportable segments. Applied does not allocate to its reportable segments certain operating expenses, which it manages separately at the corporate level. These unallocated costs include equity-based compensation and certain components of variable compensation, corporate marketing and sales, corporate functions (certain management, finance, legal, human resources and RD&E), and unabsorbed information technology and occupancy costs. In addition, Applied does not allocate to its reportable segments restructuring and asset impairment charges and any associated adjustments related to restructuring actions. Segment operating income excludes interest income/expense and other financial charges and income taxes according to how a particular reportable segment’s management is measured. Management does not consider the unallocated costs in measuring the performance of the reportable segments.

 

Effective the first quarter of fiscal 2008, Applied changed the management reporting system for services, with all service results reported in the Applied Global Services segment. Applied has reclassified segment operating results for the three months ended January 28, 2007 to conform to the fiscal 2008 presentation. Future changes to this organizational structure may result in changes to the business segments disclosed.

 

The Silicon segment includes semiconductor capital equipment for etch, rapid thermal processing (RTP), deposition, chemical mechanical planarization (CMP), and metrology and inspection.

 

The Applied Global Services segment includes technically differentiated products to improve the operating efficiency, reduce operating costs and lessen the environmental impact of semiconductor, display and solar customers’ factories, and also comprises spares and remanufactured equipment sales. Customer demand for spare parts and services is fulfilled through a global distribution system with trained service engineers located in close proximity to customer sites.

 

The Display segment encompasses products for manufacturing LCDs for TVs, personal computers and other video-enabled devices. The Display segment also includes design and manufacture of differentiated stand-alone equipment for the Applied SunFab^tm Thin Film Line.

 

The Energy and Environmental Solutions segment includes products for fabricating solar photovoltaic cells and modules, high throughput roll-to-roll coating systems for flexible electronics and web products, and energy-efficient glass.

Information for each reportable segment for the three months ended January 27, 2008 and January 28, 2007 is as follows:

 

 

Reconciliations of segment operating results to Applied consolidated totals for the three months ended January 27, 2008 and January 28, 2007 are as follows:

 

 

 

In December 2007, FASB issued Statement 141 (revised), “Business Combinations” (SFAS 141(R)). The standard changes the accounting for business combinations, including the measurement of acquirer shares issued in consideration for a business combination, the recognition of contingent consideration, the accounting for preacquisition gain and loss contingencies, the recognition of capitalized in-process research and development, the accounting for acquisition-related restructuring cost accruals, the treatment of acquisition related transaction costs, and the recognition of changes in the acquirer’s income tax valuation allowance. SFAS 141(R) will be effective for Applied in fiscal 2010, with early adoption prohibited. Applied is evaluating the potential impact of the implementation of Statement 141(R) on its financial position and results of operations.

 

In December 2007, the FASB issued Statement No. 160, “Noncontrolling Interests in Consolidated Financial Statements, an amendment of ARB No. 51” (SFAS 160). The standard changes the accounting for noncontrolling (minority) interests in consolidated financial statements, including the requirements to classify noncontrolling interests as a component of consolidated stockholders’ equity, and the elimination of “minority interest” accounting in results of operations with earnings attributable to noncontrolling interests reported as part of consolidated earnings. Additionally, SFAS 160 revises the accounting for both increases and decreases in a parent’s controlling ownership interest. SFAS 160 will be effective for Applied in fiscal 2010, with early adoption prohibited. Applied is evaluating the potential impact of the implementation of SFAS 160 on its financial position and results of operations.

 

In February 2007, the FASB issued Statement No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities Including an Amendment of FASB Statement No. 115” (SFAS 159), which permits entities to elect to measure many financial instruments and certain other items at fair value that are not currently required to be

measured at fair value. This election is irrevocable. SFAS No. 159 will be effective for Applied in fiscal 2009. Applied is evaluating the potential impact of the implementation of SFAS No. 159 on its financial position and results of operations.

 

In September 2006, the FASB issued Statement No. 157, “Fair Value Measurements” (SFAS 157). SFAS 157 defines fair value, establishes a framework for measuring fair value in accordance with generally accepted accounting principles, and expands disclosures about fair value measurements. In February 2008, the FASB issued FASB Staff Position (FSP) 157-1, “Application of FASB Statement No. 157 to FASB Statement No. 13 and Other Accounting Pronouncements That Address Fair Value Measurements for Purposes of Lease Classification or Measurement under Statement 13” (FSP 157-1) and FSP 157-2, “Effective Date of FASB Statement No. 157” (FSP 157-2). FSP 157-1 amends SFAS No. 157 to remove certain leasing transactions from its scope. FSP 157-2 delays the effective date of SFAS No. 157 for all non-financial assets and non-financial liabilities, except for items that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually), until the beginning of Applied’s first quarter of fiscal 2010. The measurement and disclosure requirements related to financial assets and financial liabilities are effective for Applied beginning in the first quarter of fiscal 2009. Applied is evaluating the potential impact of the implementation of SFAS 157 on its financial position and results of operations.

 

 

On January 31, 2008, Applied acquired all of the outstanding shares of Baccini S.p.A. (Baccini), a privately-held company based in Italy, for a purchase price of approximately $224 million in cash, net of cash acquired. Baccini, a leading supplier of automated metallization and test systems for manufacturing crystalline silicon (c-Si) photovoltaic cells, will be reported under the Energy and Environmental Solutions segment.

 

Certain information contained in this Quarterly Report on Form 10-Q is forward-looking in nature. All statements in this Quarterly Report, including those made by the management of Applied, other than statements of historical fact, are forward-looking statements. Examples of forward-looking statements include statements regarding Applied’s future financial results, operating results, cash flows and cash deployment strategies, business strategies, projected costs, products, competitive positions, management’s plans and objectives for future operations, research and development, acquisitions and joint ventures, growth opportunities, customer contracts, investments and legal proceedings, as well as industry trends. These forward-looking statements are based on management’s estimates, projections and assumptions as of the date hereof and include the assumptions that underlie such statements. Forward-looking statements may contain words such as “may,” “will,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential” and “continue,” the negative of these terms, or other comparable terminology. Any expectations based on these forward-looking statements are subject to risks and uncertainties and other important factors, including those discussed in Part II, Item 1A, “Risk Factors,” below and elsewhere in this report. Other risks and uncertainties may be disclosed in Applied’s prior Securities and Exchange Commission (SEC) filings. These and many other factors could affect Applied’s future financial condition and operating results and could cause actual results to differ materially from expectations based on forward-looking statements made in this document or elsewhere by Applied or on its behalf. Applied undertakes no obligation to revise or update any forward-looking statements.

 

Overview

 

Applied provides Nanomanufacturing Technology^tm solutions for the global semiconductor, flat panel display, solar and related industries, with a broad portfolio of innovative equipment, service and software products. Applied’s customers include manufacturers of semiconductor chips and wafers, liquid crystal displays (LCDs), solar photovoltaic cells and modules (PVs), flexible electronics and energy-efficient glass. Applied reports four segments: Silicon, Applied Global Services, Display, and Energy and Environmental Solutions. Product development and manufacturing activities occur in North America, Europe, Israel and Asia. Applied’s broad range of equipment and service products are highly technical and are sold primarily through a direct sales force.

 

Applied’s results are driven primarily by worldwide demand for integrated circuits, which in turn depends on end-user demand for electronic products. Applied’s business is subject to cyclical industry conditions, as demand for manufacturing equipment and services can change depending on supply and demand for chips, LCDs, PVs and other electronic devices, as well as other factors, such as global economic conditions and technological advances in fabrication processes.

 

The following table presents certain significant measurements for the three months ended January 27, 2008 and January 28, 2007:

 

 

Financial results for the first quarter of fiscal 2008 reflected slowing worldwide demand for semiconductor equipment and services, while demand for display and solar products increased. Total orders decreased slightly from the first quarter of fiscal 2007, primarily due to the decline in demand for semiconductor manufacturing and service products, partially offset by increased demand for display and solar equipment. Net sales decreased during the first quarter of fiscal 2008 over the first fiscal quarter of 2007, primarily due to a decrease in demand from DRAM and Flash memory chip manufacturers, as well as decreased LCD equipment sales, reflecting lower LCD

equipment orders in fiscal 2007. Net income declined in the first quarter of fiscal 2008 compared to the first quarter of fiscal 2007 due to lower sales and net interest income, while operating expenses remained flat. First quarter of fiscal 2008 financial results included restructuring charges.

 

Results of Operations

 

Applied received new orders of $2.5 billion for the first quarter of fiscal 2008, an increase from $2.2 billion for the fourth quarter of fiscal 2007 and flat compared to $2.5 billion for the first quarter of fiscal 2007. New orders for the first quarter of fiscal 2008 increased by 13 percent from the preceding quarter and decreased by 2 percent from the first quarter of fiscal 2007. The increase in new orders for the first quarter of fiscal 2008 from the fourth quarter of fiscal 2007 was primarily attributable to a significant increase in demand for LCD equipment and increased demand for solar equipment, offset by lower demand for semiconductor equipment and service products.

 

New orders by geographic region (determined by the location of customers’ facilities) for the three months ended January 27, 2008 and January 28, 2007 were as follows:

 

 

 

 

Applied’s backlog for the most recent three fiscal quarters was as follows: $4.1 billion at January 27, 2008, $3.7 billion at October 28, 2007, and $3.4 billion at July 29, 2007. Backlog consists only of orders for which written authorizations have been accepted, shipment dates within 12 months have been assigned and revenue has not been recognized. Due to the potential for customer changes in delivery schedules or cancellation of orders, Applied’s backlog at any particular time is not necessarily indicative of actual sales for any future periods.

 

Net sales for the first quarter of fiscal 2008 decreased 12 percent to $2.1 billion, from $2.4 billion for the preceding quarter, and decreased 8 percent from $2.3 billion for the first quarter of fiscal 2007. Net sales for the first quarter of fiscal 2008 compared to the first quarter of fiscal 2007 reflected lower sales of semiconductor and LCD equipment, partially offset by higher solar equipment sales and increased fab operations spending.

Net sales by geographic region (determined by the location of customers’ facilities) for the three months ended January 27, 2008 and January 28, 2007 were as follows:

 

 

 

 

Gross margin percentage was 44.8 percent for the first quarter of fiscal 2008, down from 46.7 percent for the first quarter of fiscal 2007. The decrease in the gross margin percentage for the first quarter of fiscal 2008 from that of the prior year’s period was principally attributable to lower revenues, product mix, incremental charges attributable to acquisitions (consisting of amortization of purchased intangible assets and inventory fair value adjustments on products sold), partially offset by lower material costs. Gross margin during each of the first quarters of fiscal 2008 and 2007 included $6 million of equity-based compensation expense.

 

Operating expenses included expenses related to research, development and engineering (RD&E), marketing and selling (M&S), and general and administrative (G&A). Expenses related to RD&E, M&S and G&A were $513 million for the first quarter of fiscal 2008, compared to $516 million for the first quarter of fiscal 2007. Lower operating expenses in these categories during the first quarter of fiscal 2008 compared to the same period in the prior year were principally attributable to savings from cost control initiatives and lower variable compensation expenses, partially offset by increased operating costs from acquired businesses and higher equity compensation expense.

 

Operating expenses for the first quarter of fiscal 2008 include restructuring charges of $49 million, of which $38 million was associated with a global cost reduction plan and $11 million related to facilities closures associated with ceasing development of beamline implant products and other costs of $1 million associated with ceasing development of beamline implant products. (See Note 7 of Notes to Consolidated Condensed Financial Statements.)

 

Net interest income was $26 million for the first quarter of fiscal 2008 and $20 million for the first quarter of fiscal 2007, respectively. Higher net interest income during the first quarter of fiscal 2008 was primarily due to a decrease in interest expense associated with scheduled debt maturities.

 

Applied’s effective income tax rate for the first quarter of fiscal 2008 was 32.6 percent and includes the impact of restructuring charges. Applied’s effective income tax rate was 28.6 percent for the comparable quarter of fiscal 2007 and included benefits of $30 million due primarily to a favorable resolution of audits of prior years’ income tax filings. Applied’s future effective income tax rate depends on various factors, such as tax legislation, the geographic composition of Applied’s pre-tax income, and the tax rate on equity compensation. Management carefully monitors these factors and timely adjusts the interim income tax rate accordingly.

 

Segment Information

 

Applied operates in four reportable segments: Silicon, Applied Global Services, Display, and Energy and Environmental Solutions. A description of the products and services, as well as financial data, for each reportable segment can be found in Note 14 of Notes to Consolidated Condensed Financial Statements. Applied does not allocate to its reportable segments certain operating expenses, which it manages separately at the corporate level. These unallocated costs include equity-based compensation and certain components of variable compensation,

corporate marketing and sales, corporate functions (certain management, finance, legal, human resources and RD&E), and unabsorbed information technology and occupancy costs. Effective in the first quarter of fiscal 2008, Applied renamed two of its reportable segments. The Fab Solutions segment has been renamed Applied Global Services, and the Adjacent Technologies segment has been renamed Energy and Environmental Solutions. In addition, Applied changed its management reporting system for services, with all service results reported in the Applied Global Services segment. Applied has reclassified segment operating results for the three months ended January 28, 2007 to conform to the fiscal 2008 presentation. Discussions below include the results of each reportable segment.

 

Silicon Segment

 

The Silicon segment includes semiconductor capital equipment for etch, rapid thermal processing (RTP), deposition, chemical mechanical planarization (CMP), and metrology and inspection. Development efforts are focused on solving customers’ key technical challenges, including transistor performance and nanoscale patterning, and improving chip manufacturing productivity to reduce costs.

 

 

Silicon new orders decreased 39 percent to $1.1 billion for the first quarter of fiscal 2008 compared to $1.8 billion for the first quarter of fiscal 2007, due to reduced demand for equipment from memory device manufacturers and continued weakness in demand from foundry and logic customers. The decrease in orders was across all products within the segment. New orders were primarily for leading-edge memory applications while orders from foundries remained at low levels due to low fab utilization rates.

 

Net sales decreased 17 percent to $1.2 billion for the first quarter of fiscal 2008 from $1.5 billion for the first quarter of fiscal 2007. The decrease in net sales was due to decreased investment by memory and logic semiconductor customers in multiple areas, including etch, inspection, and front end products.

 

Operating income decreased 14 percent to $445 million for the first quarter of fiscal 2008 from $520 million for the first quarter of fiscal 2007. The operating income decrease was due to lower revenue levels, offset in part by lower spending attributable to continued focus on cost controls.

 

Applied Global Services Segment

 

The Applied Global Services segment includes technically differentiated products to improve operating efficiency, reduce operating costs and lessen the environmental impact of semiconductor, display and solar customers’ factories, and includes spares and remanufactured equipment sales. Customer demand for spare parts and services is fulfilled through a global distribution system with trained service engineers located in close proximity to customer sites.

 

 

New orders decreased 15 percent to $610 million for the first quarter of fiscal 2008, compared to $718 million for the first quarter of fiscal 2007, due to lower orders for spares and remanufactured equipment, partially offset by increased orders for factory automation software.

Net sales increased 6 percent to $595 million for the first quarter of fiscal 2008, compared to $560 million for the first quarter of fiscal 2007, reflecting increased factory automation software sales and higher sales for remanufactured equipment.

 

Operating income decreased 7 percent to $149 million for the first quarter of fiscal 2008 from $159 million for the first quarter of fiscal 2007 as a result of product mix, increased operating expenses and acquisition-related charges, offset by higher net sales.

 

Fiscal 2007 new orders, net sales and operating income have increased from the previously reported amounts due to the reclassification of display service products from the Display segment.

 

Display Segment

 

The Display segment encompasses products for manufacturing LCDs for TVs, personal computers and other video-enabled devices. This business is focused on expanding market share by differentiation with larger-scale substrates, entry into new markets, and development of products to enable cost reductions through productivity and uniformity.

 

 

New orders increased to $555 million for the first quarter of fiscal 2008, compared to $34 million for the first quarter of fiscal 2007. Increased orders reflected a significant increase in investment by LCD customers in response to rising LCD panel demand.

 

Net sales decreased 32 percent to $133 million for the first quarter of fiscal 2008 from $196 million for the first quarter of fiscal 2007. The decrease in net sales reflected the lower order levels in fiscal 2007.

 

Operating income decreased 32 percent to $34 million for the first quarter of fiscal 2008 from $50 million for the first quarter of fiscal 2007, due to lower revenue levels and product mix, partially offset by lower costs.

 

Fiscal 2007 new orders, net sales and operating income have decreased from the previously reported amounts due to the reclassification of display service products to the Applied Global Services segment.

 

Energy and Environmental Solutions Segment

 

The Energy and Environmental Solutions segment includes products for fabricating solar photovoltaic cells and modules, high throughput roll-to-roll coating systems for flexible electronics and web products, and energy-efficient glass. This business is focused on delivering solutions to generate and conserve energy, with an emphasis on lowering the cost to produce solar power by providing equipment to enhance manufacturing scale and efficiency.

 

 

New orders of $260 million for the first quarter of fiscal 2008 increased from $31 million for the first quarter of fiscal 2007, and included the initial recognition of orders for Applied’s SunFab^tm Thin Film Line. The first quarter of fiscal 2008 also included the first full quarter of results for precision wafering systems to manufacture crystalline silicon substrates from the acquisition of HCT Shaping Systems S.A.

Net sales of $122 million for the first quarter of fiscal 2008 increased from $32 million for the first quarter of fiscal 2007, due to increased sales across all products.

 

The operating loss of $48 million for the first quarter of fiscal 2008 increased from $15 million for the first quarter of fiscal 2007, reflecting increased RD&E spending to develop products that enable lower-cost production of solar energy, increased operating costs, amortization of acquisition-related costs, and costs related to expansion of solar marketing efforts, partially offset by higher revenues.

 

Financial Condition, Liquidity and Capital Resources

 

During the three months ended January 27, 2008, cash, cash equivalents and investments decreased by $363 million, from $3.7 billion as of October 28, 2007.

 

Cash, cash equivalents and investments consisted of the following:

 

 

Applied generated $390 million of cash from operating activities for the three months ended January 27, 2008. The primary source of operating cash flow for the three months ended January 27, 2008 was net income, adjusted to exclude the effect of non-cash charges including depreciation, amortization, equity-based compensation, and restructuring expenses, which was partially offset by changes in operating assets and liabilities. Days sales outstanding for the first quarter of fiscal 2008 increased to 88 days, compared to 79 days in the fourth quarter of fiscal 2007, primarily due to regional mix. Applied discounted certain letters of credit totaling $15 million for the three months ended January 27, 2008. Discounting of letters of credit depends on many factors, including the willingness of financial institutions to discount the letters of credit and the cost of such arrangements. For further details regarding discounting of letters of credit, see Note 3 of Notes to Consolidated Condensed Financial Statements.

 

Applied generated $290 million of cash from investing activities during the three months ended January 27, 2008. Investing activities included the purchase from Edwards Vacuum, Inc. certain assets of its Kachina semiconductor equipment parts cleaning and refurbishment business for $19 million in cash and capital expenditures of $74 million. Proceeds from sales and maturities of investments, net of purchases of investments, totaled $383 million.

 

Applied used $667 million of cash for financing activities during the three months ended January 27, 2008, consisting primarily of $600 million to repurchase common shares and payment of $83 million in cash dividends to stockholders, partially offset by $16 million received from the issuance of common stock under equity plans.

 

On September 11, 2007, Applied’s Board of Directors declared a quarterly cash dividend in the amount of $0.06 per share that was paid on December 6, 2007 to stockholders of record as of November 15, 2007. On December 11, 2007, Applied’s Board of Directors declared a quarterly cash dividend in the amount of $0.06 per share, payable on March 6, 2008, to stockholders of record as of February 14, 2008. Applied currently anticipates that cash dividends will continue to be paid on a quarterly basis, although the declaration of any future cash dividend is at the discretion of the Board of Directors and will depend on Applied’s financial condition, results of operations, capital requirements, business conditions and other factors, as well as a determination that cash dividends are in the best interests of Applied’s stockholders.

 

Applied has credit facilities for unsecured borrowings in various currencies of up to $1.1 billion, of which $1.0 billion is comprised of a 5-year revolving credit agreement with a group of banks that is scheduled to expire in January 2012. The agreement provides for borrowings at interest rates keyed to one of the two rates selected by Applied for each advance and includes financial and other covenants with which Applied was in compliance at

January 27, 2008. No amounts were outstanding under this agreement at January 27, 2008 (see Note 11 of Notes to Consolidated Condensed Financial Statements).

 

On January 31, 2008, Applied acquired all of the outstanding shares of Baccini S.p.A. (Baccini), a privately-held company based in Italy, for a purchase price of approximately $224 million in cash, net of cash acquired. For additional information regarding this business combination, see Note 16 of Notes to Consolidated Condensed Financial Statements.

 

In the ordinary course of business, Applied provides standby letters of credit or other guarantee instruments to certain parties as required for certain transactions initiated by either Applied or its subsidiaries. As of January 27, 2008, the maximum potential amount of future payments that Applied could be required to make under these guarantee arrangements was approximately $208 million. Applied has not recorded any liability in connection with these guarantee arrangements beyond that required to appropriately account for the underlying transaction being guaranteed. Applied does not believe, based on historical experience and information currently available, that it is probable that any amounts will be required to be paid under these guarantee arrangements.

 

Applied expects that changes in its business will affect its working capital components in fiscal 2008, primarily related to its Energy and Environmental Solutions segment. Applied believes that the solar industry is moving to increasingly greater factory output of solar modules, including output on a level sufficient to annually generate electricity on a gigawatt scale. Applied has entered into contracts with multiple customers for its SunFab Thin Film Line, the fulfillment of which will require Applied to invest in inventory and incur related costs.

 

Applied’s investment portfolio consists principally of investment grade municipal bonds, money market mutual funds, U.S. Treasury and agency securities, corporate bonds, and mortgage-backed and asset-backed securities. Applied regularly monitors the credit risk in its investment portfolio and takes appropriate measures to manage such risks prudently in accordance with its investment policies. As a result of recent adverse conditions in the financial markets, the following types of financial instruments may present risks arising from liquidity and/or credit concerns: structured investment vehicles, auction rate securities, sub-prime mortgage-backed securities, and collateralized debt obligations. At January 27, 2008, Applied’s holdings in these categories of investments totaled $45 million, or 1.3% of total cash, cash equivalents and investments, which Applied does not consider to be material. In the event that these categories of investments that are experiencing credit concerns become illiquid, Applied does not believe that this will materially affect the Company’s liquidity or results of operations. In the first quarter of fiscal 2008, as part of its regular investment review process, Applied recorded an insignificant impairment charge associated with its investment portfolio. While Applied cannot predict future market conditions or market liquidity, Applied believes that its investment policies provide an appropriate means to manage the risks in its investment portfolio.

 

Although cash requirements will fluctuate based on the timing and extent of many factors such as those discussed above and in Part II, Item IA, “Risk Factors” below, Applied’s management believes that cash generated from operations, together with the liquidity provided by existing cash balances and borrowing capability, will be sufficient to satisfy Applied’s liquidity requirements for the next 12 months. For further details regarding Applied’s operating, investing and financing activities, see the Consolidated Condensed Statements of Cash Flows.

 

Critical Accounting Policies and Estimates

 

The preparation of consolidated financial statements and related disclosures in conformity with accounting principles generally accepted in the United States requires management to make judgments, assumptions and estimates that affect the amounts reported. Certain of these significant accounting policies are considered to be critical accounting policies, as defined below.

 

A critical accounting policy is defined as one that is both material to the presentation of Applied’s consolidated financial statements and requires management to make difficult, subjective or complex judgments that could have a material effect on Applied’s financial condition or results of operations. Specifically, these policies have the following attributes: (1) Applied is required to make assumptions about matters that are highly uncertain at the time of the estimate; and (2) different estimates Applied could reasonably have used, or changes in the estimate that are reasonably likely to occur, would have a material effect on Applied’s financial condition or results of operations.

Estimates and assumptions about future events and their effects cannot be determined with certainty. Applied bases its estimates on historical experience and on various other assumptions believed to be applicable and reasonable under the circumstances. These estimates may change as new events occur, as additional information is obtained and as Applied’s operating environment changes. These changes have historically been minor and have been included in the consolidated financial statements as soon as they became known. In addition, management is periodically faced with uncertainties, the outcomes of which are not within its control and will not be known for prolonged periods of time. These uncertainties include those discussed in Part II, Item 1A, “Risk Factors.” Based on a critical assessment of its accounting policies and the underlying judgments and uncertainties affecting the application of those policies, management believes that Applied’s consolidated financial statements are fairly stated in accordance with accounting principles generally accepted in the United States of America, and provide a meaningful presentation of Applied’s financial condition and results of operations. Management has discussed the development, selection and disclosure of significant estimates with the Audit Committee of our Board of Directors.

 

For further information about Applied’s critical accounting policies, see the discussion of critical accounting policies in Applied’s 2007 Form 10-K. Management believes that there has been no significant change during the three months ended January 27, 2008 to the items disclosed as critical accounting policies in Applied’s 2007 Form 10-K.

 

 

Applied’s investment portfolio includes fixed-income securities with a fair value of approximately $2.1 billion at January 27, 2008. These securities are subject to interest rate risk and will decline in value if interest rates increase. Based on Applied’s investment portfolio at January 27, 2008, an immediate 100 basis point increase in interest rates would result in a decrease in the fair value of the portfolio of approximately $32 million. While an increase in interest rates reduces the fair value of the investment portfolio, Applied will not realize the losses in the consolidated condensed statement of operations unless the individual fixed-income securities are sold prior to recovery or the loss is determined to be other-than-temporary.

 

Certain operations of Applied are conducted in foreign currencies. Applied enters into currency forward exchange and option contracts to hedge a portion of, but not all, existing and anticipated foreign currency denominated transactions expected to occur within 12 months. Gains and losses on these contracts are generally recognized in income at the time that the related transactions being hedged are recognized. Because the effect of movements in currency exchange rates on currency forward exchange and option contracts generally offsets the related effect on the underlying items being hedged, these financial instruments are not expected to subject Applied to risks that would otherwise result from changes in currency exchange rates. Applied does not use derivative financial instruments for trading or speculative purposes. Net foreign currency gains and losses were not material for the three months ended January 28, 2007 and January 27, 2008.

 

 

As required by Rule 13a-15(b) under the Securities Exchange Act of 1934, as amended (Exchange Act), Applied’s management, including the Chief Executive Officer and Chief Financial Officer, conducted an evaluation as of the end of the period covered by this report, of the effectiveness of Applied’s disclosure controls and procedures as defined in Exchange Act Rule 13a-15(e). Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that Applied’s disclosure controls and procedures were effective as of the end of the period covered by this report in ensuring that information required to be disclosed in our SEC reports is (i) recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and (ii) accumulated and communicated to Applied’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

 

As required by Rule 13a-15(d), Applied’s management, including the Chief Executive Officer and Chief Financial Officer, also conducted an evaluation of Applied’s internal control over financial reporting to determine whether any changes occurred during the fiscal quarter that have materially affected, or are reasonably likely to materially affect, Applied’s internal control over financial reporting. Based on that evaluation, there has been no such change during the fiscal quarter.

It should be noted that any system of controls, however well designed and operated, can provide only reasonable, and not absolute, assurance that the objectives of the system will be met. In addition, the design of any control system is based in part upon certain assumptions about the likelihood of future events.

 

PART II. OTHER INFORMATION

 

 

The information set forth above under Note 6 contained in Notes to Consolidated Condensed Financial Statements is incorporated here in by reference.

 

 

The risk factors set forth below include any material changes to, and supersede the description of, the risk factors disclosed in Item 1A of Applied’s 2007 Form 10-K.

 

The industries that Applied serves are volatile and unpredictable.

 

As a supplier to the global semiconductor, flat panel display, solar and related industries, Applied is subject to business cycles, the timing, length and volatility of which can be difficult to predict and which may vary by reportable segment. The industries have historically been cyclical due to sudden changes in customers’ manufacturing capacity requirements and spending, which depend in part on capacity utilization, demand for customers’ products, and inventory levels relative to demand. The effects on Applied of these changes in demand, including end-customer demand, are occurring more rapidly. These changes have affected the timing and amounts of customers’ purchases and investments in technology, and continue to affect Applied’s orders, net sales, gross margin, contributed profit and results of operations.

 

Applied must effectively manage its resources and production capacity to meet rapidly changing demand in each of the industries it serves. During periods of decreasing demand for Applied’s products, Applied must be able to appropriately align its cost structure with prevailing market conditions, motivate and retain key employees, and effectively manage its supply chain. During periods of increasing demand, Applied must have sufficient manufacturing capacity and inventory to meet customer demand; attract, retain and motivate a sufficient number of qualified individuals; and effectively manage its supply chain. If Applied is not able to timely and appropriately adapt to changes in industry cycles, Applied’s business, financial condition or results of operations may be materially and adversely affected.

 

Applied is exposed to risks as a result of ongoing changes in the semiconductor and semiconductor-related industries.

 

The global industries in which Applied operates are characterized by ongoing changes, including: (1) higher capital requirements for building and operating new semiconductor, LCD and solar photovoltaic cell or module (PV) fabrication plants and the resulting effect on customers’ ability to raise the necessary capital; (2) differing rates of market growth for, and capital investments by, various semiconductor device makers, such as memory (including NAND Flash and DRAM), logic and foundry, as well as LCD and solar manufacturers; (3) industry growth rates; (4) the increasing cost and decreasing affordability of research and development due to many factors, including decreasing linewidths, the increasing number of materials, applications and process steps, and the greater complexity of process development and chip design; (5) the increasing difficulty for customers to move from product design to volume manufacturing; (6) the importance of reducing the cost of system ownership, due in part to the increasing significance of consumer electronics as a driver for semiconductor and LCD demand and the related focus on lower prices; (7) varying levels of business information technology spending; (8) the heightened importance to customers of system reliability and productivity, and the effect on demand for systems as a result of their increasing productivity, device yield and reliability; (9) the growing types and varieties of semiconductors and expanding number of applications across multiple substrate sizes, resulting in customers’ divergent technical demands; (10) demand for shorter cycle times for the development, manufacture and installation of manufacturing equipment; (11) the challenge to semiconductor manufacturers of moving volume manufacturing from one

technology node to the next smaller technology node, and the resulting impact on the technology transition rate and the rate of investment in capital equipment; (12) price trends for semiconductor devices, LCDs and solar modules; (13) difficulties associated with transitioning to larger substrate sizes; and (14) the increasing importance of the availability of spare parts to assure maximum system uptime. If Applied does not successfully manage the risks resulting from the ongoing changes occurring in the semiconductor and semiconductor-related industries, its business, financial condition and results of operations could be materially and adversely affected.

 

Applied must adapt its business and product offerings to respond to competition and rapid technological changes.

 

As Applied operates in a highly competitive environment, its future success depends on many factors, including the effective development, commercialization and customer acceptance of its nanomanufacturing technology equipment, service and related products. In addition, Applied must successfully execute its growth strategy, including enhancing market share in existing markets, expanding into related markets, and cultivating new markets, while constantly improving its operational performance. The development, introduction and support of a broadening set of products in more varied competitive environments have grown increasingly complex and expensive over time. Applied’s success is subject to many risks, including but not limited to its ability to timely, cost-effectively and successfully: (1) improve and/or develop new applications for existing products, adapt similar products for use by customers in different applications and/or markets with varying technical requirements, and develop new products; (2) appropriately price and achieve market acceptance of products; (3) maintain operating flexibility to enable different responses to different markets, customers and applications; (4) appropriately allocate resources, including RD&E funding, among Applied’s products and between the development of new products and the enhancement of existing products; (5) accurately forecast demand and meet production schedules for its products; (6) achieve cost efficiencies across product offerings; (7) increase market share in existing markets, expand its markets and exceed industry growth rates; (8) adapt to technology changes in related markets, such as lithography; (9) adapt to changes in value offered by companies in different parts of the supply chain; (10) qualify products for volume manufacturing with its customers; (11) implement changes in its design engineering methodology, including those that enable reduction of material costs and cycle time, and enable greater commonality of platforms and types of parts used in different systems, and greater effectiveness of product life cycle management; and (12) improve its manufacturing processes. Furthermore, new or improved products may involve higher costs and reduced margins. If Applied does not successfully manage these challenges, its business, financial condition and results of operations could be materially and adversely affected.

 

The entry into new markets and industries entails additional challenges.

 

As part of its growth strategy, Applied must successfully expand into related or new markets and industries, either with its existing nanomanufacturing technology products or with new products developed internally or obtained through acquisitions. These include the emerging solar market, which Applied entered in 2006 and which is subject to ongoing changes in demand for PV products arising from, among other things, fluctuations in the cost of electric power, availability of government incentives, government energy policies, the performance and reliability of PV technology, technological innovations, evolving industry standards, and the cost and availability of other energy sources. In addition, Applied believes that the solar industry is moving to increasingly greater factory output of PVs, including output on a level sufficient to annually generate electricity on a gigawatt scale. The entry into different markets involves additional challenges, including those arising from: (1) Applied’s ability to anticipate demand and capitalize on opportunities, and avoid or minimize risks; (2) new and more diverse customers and suppliers, including some with limited operating histories, uncertain and/or limited funding, evolving business models and/or locations in regions where Applied does not have existing operations; (3) the adoption of new business models, such as the supply of a suite of Applied and non-Applied equipment sufficient to manufacture PVs; (4) difficulties in production planning, execution, supply chain management and logistics; (5) new materials, processes and technologies; (6) Applied’s ability to meet performance specifications and drive efficiencies and cost reductions; (7) the need to attract, motivate and retain employees with skills and expertise in these new areas; (8) different service requirements; and (9) intellectual property rights of others; (10) Applied’s ability to rapidly expand its operations to meet demand for one or more gigawatt-scale solar factories and the associated effect on

Applied’s working capital. If Applied does not successfully manage the risks resulting from entry into new markets and industries, its business, financial condition and results of operations could be materially and adversely affected.

 

Applied is exposed to the risks of operating a global business.

 

In the first quarter of fiscal 2008, approximately 77 percent of Applied’s net sales were to customers in regions outside the United States. A rising percentage of Applied’s business is from customers in Asia. Certain of Applied’s RD&E and/or manufacturing facilities, as well as suppliers to Applied, are also located outside the United States, including in China. The global nature of Applied’s business and operations presents challenges, including but not limited to, those arising from: (1) uncertainties with respect to economic growth rates in various countries; (2) varying regional and geopolitical business conditions and demands; (3) local, regional, national or international regulatory requirements; (4) global trade issues; (5) variations in protection of intellectual property and other legal rights in different countries; (6) positions taken by U.S. governmental agencies regarding possible national commercial and/or security issues posed by international business operations; (7) fluctuating raw material and energy costs; (8) variations in the ability to develop relationships with suppliers and other local businesses; (9) changes in laws and regulations of the United States (including export restrictions) and other countries, as well as their interpretation and application; (10) fluctuations in interest rates and currency exchange rates, including the weakening relative position of the U.S. dollar; (11) the need to provide sufficient levels of technical support in different locations; (12) political instability, natural disasters (such as earthquakes, floods or storms), pandemics, terrorism or acts of war in locations where Applied has operations, suppliers or sales; (13) cultural differences; (14) special customer- or government-supported efforts to promote the development and growth of local competitors; (15) shipping costs and/or delays; (16) adverse conditions in financial markets that may affect the liquidity and or credit of financial instruments in Applied’s investment portfolio; and (17) adverse conditions in credit markets. Many of these challenges are present in China, which is experiencing significant growth of both suppliers and competitors to Applied, and which Applied believes presents a large potential market for its products and opportunity for growth over the long term. In addition, Applied must regularly reassess the size, capability and location of its global infrastructure and make appropriate changes. These challenges may materially and adversely affect Applied’s business, financial condition and results of operations.

 

Applied is exposed to risks associated with a highly concentrated customer base.

 

Applied’s semiconductor and flat panel display customer base historically has been, and is becoming even more, highly concentrated. In addition, certain customers have entered into strategic alliances or industry consortia that have increased the influence of key industry participants in technology decisions made by their partners. In the solar area, while the number of PV manufacturing customers is increasing as the number of market entrants grows, the size of contracts with particular customers is expected to rise substantially as the industry moves to solar module output capability on a level sufficient to annually generate electricity on a gigawatt scale. In this environment, orders from a relatively limited number of manufacturers have accounted for, and are expected to continue to account for, a substantial portion of Applied’s net sales. In addition, the mix and type of customers, and sales to any single customer, may vary significantly from quarter to quarter and from year to year. If customers do not place orders, or they delay or cancel orders, Applied may not be able to replace the business. As Applied’s products are configured to customer specifications, changing, rescheduling or canceling orders may result in significant, non-recoverable costs. Major customers may also seek, and on occasion receive, pricing, payment, intellectual property-related, or other commercial terms that are less favorable to Applied. In addition, certain customers have undergone significant ownership changes and/or have outsourced manufacturing activities, which may result in additional complexities in managing customer relationships and transactions. These factors could have a material, adverse effect on Applied’s business, financial condition and results of operations.

 

Applied is exposed to risks associated with acquisitions and strategic investments.

 

Applied has made, and in the future intends to make, acquisitions of, and investments in, companies, technologies or products in existing, related or new markets for Applied. Acquisitions involve numerous risks, including but not limited to: (1) diversion of management’s attention from other operational matters; (2) inability to complete acquisitions as anticipated or at all; (3) inability to realize anticipated benefits; (4) failure to

commercialize purchased technologies; (5) inability to capitalize on characteristics of new markets that may be significantly different from Applied’s existing markets; (6) exposure to operational risks, rules and regulations to the extent such activities are located in countries where Applied has not historically done business; (7) inability to obtain and protect intellectual property rights in key technologies; (8) ineffectiveness of an acquired company’s internal controls; (9) impairment of acquired intangible assets as a result of technological advancements or worse-than-expected performance of the acquired company or its product offerings; (10) unknown, underestimated and/or undisclosed commitments or liabilities; (11) excess or underutilized facilities; and (12) ineffective integration of operations, technologies, products or employees of the acquired companies. Applied also makes strategic investments in other companies, including companies formed as joint ventures, which may decline in value and/or not meet desired objectives. The success of these investments depends on various factors over which Applied may have limited or no control and, particularly with respect to joint ventures, requires ongoing and effective cooperation with strategic partners. Mergers and acquisitions and strategic investments are inherently subject to significant risks, and the inability to effectively manage these risks could materially and adversely affect Applied’s business, financial condition and results of operations.

 

Manufacturing interruptions or delays could affect Applied’s ability to meet customer demand, while the failure to estimate customer demand accurately could result in excess or obsolete inventory.

 

Applied’s business depends on its ability to supply equipment, services and related products that meet the rapidly changing technical and volume requirements of its customers, which depends in part on the timely delivery of parts, components and subassemblies (collectively, parts) from suppliers. Some key parts may be subject to long lead-times and/or obtainable only from a single supplier or limited group of suppliers, and some sourcing or subassembly is provided by suppliers in developing regions, including China. Significant interruptions of manufacturing operations or the delivery of services as a result of: (1) the failure or inability of suppliers to timely deliver quality parts; (2) volatility in the availability and cost of materials; (3) difficulties or delays in obtaining required import or export approvals; (4) information technology or infrastructure failures; (5) natural disasters (such as earthquakes, floods or storms); or (6) other causes (such as regional economic downturns, pandemics, political instability, terrorism, or acts of war), could result in delayed deliveries, manufacturing inefficiencies, increased costs or order cancellations. Applied’s need to rapidly ramp up its business to meet anticipated accelerating demand for its PV products, in particular, may exacerbate any interruptions in Applied’s manufacturing operations and supply chain and the associated effect on Applied’s working capital. Moreover, if actual demand for Applied’s products is different than expected, Applied may purchase more/fewer parts than necessary or incur costs for canceling, postponing or expediting delivery of parts. Any or all of these factors could materially and adversely affect Applied’s business, financial condition and results of operations.

 

The failure to successfully implement and conduct off-shoring and outsourcing activities and other operational initiatives could adversely affect results of operations.

 

To better align its costs with market conditions, increase its presence in growing markets, improve its tax structure, and enhance productivity and operational efficiency, Applied conducts engineering, software development and other operations in regions outside the United States, particularly India and China, and outsources certain functions to third parties, including companies in the United States, India, China and other countries. Outsourced functions include certain engineering, manufacturing, customer support, software development, information technology support and administrative activities. The expanding role of third party providers has required changes to Applied’s existing operations and the adoption of new procedures and processes for retaining and managing these providers in order to realize the potential productivity and operational efficiencies, assure quality and protect Applied’s intellectual property. In addition, Applied has implemented several key, operational initiatives intended to improve manufacturing efficiency, including integrate-to-order, module-final-test and merge-in-transit programs. Applied also is implementing a multi-year, company-wide program to transform certain business processes, which includes transitioning to a single-vendor, enterprise resource planning (ERP) software system to perform various functions. If Applied does not effectively develop and implement its off-shoring and outsourcing strategies, if required export and other governmental approvals are not timely obtained, if Applied’s third party providers do not perform as anticipated, or if there are delays or difficulties in implementing a new ERP system or enhancing business processes, Applied may not realize anticipated productivity improvements or cost efficiencies, and may

experience operational difficulties, increased costs, manufacturing interruptions or delays, loss of its intellectual property rights, quality issues, increased product time-to-market and/or inefficient allocation of human resources, any or all of which could materially and adversely affect Applied’s business, financial condition and results of operations.

 

The ability to attract, retain and motivate key employees is vital to Applied’s success.

 

Applied’s success and competitiveness depend in large part on its ability to attract, retain and motivate key employees. Achieving this objective may be difficult due to many factors, including fluctuations in global economic and industry conditions, changes in Applied’s management or leadership, competitors’ hiring practices, and the effectiveness of Applied’s compensation programs, including its equity-based programs. Applied regularly evaluates its overall compensation program and makes adjustments, as appropriate, to enhance its competitiveness. If Applied does not successfully attract, retain and motivate key employees, Applied’s ability to capitalize on its opportunities and its operating results may be materially and adversely affected.

 

Changes in tax rates or tax liabilities could affect results of operations.

 

As a global company, Applied is subject to taxation in the United States and various other countries. Significant judgment is required to determine and estimate worldwide tax liabilities. Applied’s future annual and quarterly tax rates could be affected by numerous factors, including changes in the: (1) applicable tax laws; (2) composition of earnings in countries with differing tax rates; or (3) valuation of Applied’s deferred tax assets and liabilities. In addition, Applied is subject to regular examination of its income tax returns by the Internal Revenue Service and other tax authorities. Applied regularly assesses the likelihood of favorable or unfavorable outcomes resulting from these examinations to determine the adequacy of its provision for income taxes. Although Applied believes its tax estimates are reasonable, there can be no assurance that any final determination will not be materially different from the treatment reflected in Applied’s historical income tax provisions and accruals, which could materially and adversely affect Applied’s results of operations.

 

Applied is exposed to various risks related to legal proceedings or claims and protection of intellectual property rights.

 

Applied from time to time is, and in the future may be, involved in legal proceedings or claims regarding patent infringement, intellectual property rights, antitrust, environmental regulations, securities, contracts, product performance, product liability, unfair competition, employment and other matters. In addition, Applied on occasion receives notification from customers who believe that Applied owes them indemnification or other obligations related to claims made against customers by third parties. These legal proceedings and claims, whether with or without merit, may be time-consuming and expensive to prosecute or defend and also divert management’s attention and resources. There can be no assurance regarding the outcome of current or future legal proceedings or claims. Applied previously entered into a mutual covenant-not-to-sue arrangement with one of its competitors to decrease the risk of patent infringement lawsuits in the future. There can be no assurance that the intended results of this arrangement will be achieved or that Applied will be able to adequately protect its intellectual property rights with the restrictions associated with such a covenant. In addition, Applied’s success depends in significant part on the protection of its intellectual property and other rights. Infringement of Applied’s rights by a third party, such as the unauthorized manufacture or sale of equipment or spare parts, could result in uncompensated lost market and revenue opportunities for Applied. Applied’s intellectual property rights may not provide significant competitive advantages if they are circumvented, invalidated, rendered obsolete by the rapid pace of technological change, or if Applied does not adequately assert these rights. Furthermore, the laws and practices of other countries, including China, Taiwan and Korea, permit the protection and enforcement of Applied’s rights to varying extents, which may not be sufficient to protect Applied’s rights. If Applied is not able to obtain or enforce intellectual property rights, resolve or settle claims, obtain necessary licenses on commercially reasonable terms, and/or successfully prosecute or defend its position, Applied’s business, financial condition and results of operations could be materially and adversely affected.

Applied is subject to risks of non-compliance with environmental and safety regulations.

 

Applied is subject to environmental and safety regulations in connection with its global business operations, including but not limited to: regulations related to the development, manufacture and use of its products; recycling and disposal of materials used in its products; the operation of its facilities; and the use of its real property. The failure or inability to comply with existing or future environmental and safety regulations could result in: (1) significant remediation liabilities; (2) the imposition of fines; (3) the suspension or termination of the development, manufacture, sale or use of certain of its products; (4) limitations on the operation of its facilities or ability to use its real property; and/or (5) a decrease in the value of its real property, each of which could have a material adverse effect on Applied’s business, financial condition and results of operations.

 

Applied is exposed to various risks related to the regulatory environment.

 

Applied is subject to various risks related to: (1) new, different, inconsistent or even conflicting laws, rules and regulations that may be enacted by legislative bodies and/or regulatory agencies in the countries in which Applied operates; (2) disagreements or disputes between national or regional regulatory agencies related to international trade; and (3) the interpretation and application of laws, rules and regulations. If Applied is found by a court or regulatory agency not to be in compliance with applicable laws, rules or regulations, Applied’s business, financial condition and results of operations could be materially and adversely affected.

 

Applied is subject to internal control evaluations and attestation requirements of Section 404 of the Sarbanes-Oxley Act.

 

Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, Applied must include in its Annual Report on Form 10-K a report of management on the effectiveness of Applied’s internal control over financial reporting. Ongoing compliance with this requirement is complex, costly and time-consuming. If: (1) Applied fails to maintain effective internal control over financial reporting; (2) Applied’s management does not timely assess the adequacy of such internal control; or (3) Applied’s independent registered public accounting firm does not timely deliver an unqualified opinion as to the effectiveness of Applied’s internal controls, Applied could be subject to regulatory sanctions and the public’s perception of Applied may decline.

 

 

The following table provides information as of January 27, 2008 with respect to the shares of common stock repurchased by Applied during the first quarter of fiscal 2008:

 

 

 

 

 

None.

 

None.

 

 

None.

 

 

Exhibits are numbered in accordance with the Exhibit Table of Item 601 of Regulation S-K:

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

APPLIED MATERIALS, INC.

 

George S. Davis

Senior Vice President,

Chief Financial Officer

(Principal Financial Officer)

 

March 3, 2008

 

Yvonne Weatherford

Corporate Vice President,

Corporate Controller

(Principal Accounting Officer)

 

March 3, 2008

Exhibit 10.55

SHARE PURCHASE AGREEMENT

November 18, 2007
By and between

- Applied Materials, Inc., a Delaware corporation (the “Purchaser”), with its registered office at 3050 Bowers Avenue, Santa Clara, CA 95054, here represented by its Senior Vice President duly authorized by its board of directors

-on one side-

and

the following parties (the “Selling Shareholders”):

- Mr. Gisulfo Baccini, an Italian citizen born in Breda Di Piave (Treviso), Italy, on 1 October 1942, resident in 31030 Carbonera (Treviso), Italy, Via Duca D’Aosta 1; and

- Finanziaria Baccini S.r.l., an Italian company, with its registered office at 31100 Treviso, Sottoportico Buranelli 27, enrolled with the Register of Companies of Treviso at no. 00398350264, share capital €100.000,00 fully paid-in, here represented by the legal representative, Mr. Gisulfo Baccini;

-on the other side-

(The Purchaser and the Selling Shareholders are referred to collectively as the “Parties” and each of them as a “Party.”)

Certain capitalized terms used in this Agreement are defined in Exhibit A.

WHEREAS

	(a)		The Selling Shareholders own 600,000 ordinary shares in the share capital of Baccini S.p.A., an Italian company, with its registered office at 31048 San Biagio di Callalta (Treviso), Via Postumia Ovest 244, tax code and number of registration with the Register of Companies of Treviso at no. 00766780266 (the “Company”), having each a par value of €1 (the “Shares”), fully paid in and subscribed, each in the respective amount set forth opposite each Selling Shareholder’s name on Schedule 2.2, which Shares collectively constitute 100% (one hundred per cent) of the share capital of the Company;
	(b)		The Purchaser has been granted access to a number of documents related to the Company and its business; and
	(c)		The Selling Shareholders wish to sell the Shares to the Purchaser (or to a direct or indirect subsidiary of the Purchaser as its nominee pursuant to Article 1401 of the Italian Civil Code) on the terms set forth in this Share Purchase Agreement (this “Agreement”).

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1.

Recitals, Exhibits and Schedules

	1.1		All the above recitals and all the attachments hereto constitute an integral and substantial part of this Agreement.
	1.2		The Exhibits to this Agreement are the following:

Exhibit A		—		Certain Definitions
Exhibit B		—		Non-Competition, Non-Solicitation and Confidentiality Agreements
Exhibit C		—		Lease-Back Agreement
Exhibit D		—		Escrow Agreement
Exhibit E		—		Employment Agreement Term Sheets
Exhibit F		—		Preliminary Sale and Purchase Agreement

1.3

The Schedules to this Agreement are the following:

Schedule 2.2		—		Schedule of Selling Shareholders
Schedule 2.4(b)(iv )		—		Persons to Execute Non-Competition, Non-Solicitation and Confidentiality Agreements
the Disclosure Schedule				the Disclosure Schedule
Schedule 3.9(d)		—		Acquired Patents
Schedule 7.9		—		Persons to Remain Employed
Schedule 12.7(c)		—		Dispute Resolution Procedures

2.

Object of this Agreement; Closing

	2.1		Sale and Purchase of Shares. At the Closing (as defined in Section 2.3), the Selling Shareholders shall sell, assign, transfer and deliver the Shares to the Purchaser (or to a direct or indirect subsidiary of the Purchaser as its nominee pursuant to Article 1401 of the Italian Civil Code), free and clear of any Encumbrance, and the Purchaser (or such subsidiary as nominee) shall purchase the Shares from the Selling Shareholders (such sale and purchase of the Shares, the “Share Purchase”), on the terms and subject to the conditions set forth in this Agreement.
	2.2		Purchase Price. The aggregate purchase price payable by the Purchaser (or by a direct or indirect subsidiary of the Purchaser as its nominee pursuant to Article 1401 of the Italian Civil Code) for the Shares (the “Purchase Price”) shall be €200.400.000,00. The Purchase Price shall be paid as follows:

	(a)		At the Closing, the Purchaser shall cause to be paid to each Selling Shareholder its pro rata percentage, as set forth opposite such Selling Shareholder’s name on Schedule 2.2, of the amount by which: (i) €168.400.000,00; exceeds (ii) the Acquired Company Transaction Expenses (including those Acquired Company Transaction Expenses reflected in the acknowledgments contemplated by clause “(A)” of Section 2.4(b)(ix)), all in accordance with the payment instructions set forth opposite such Selling Shareholder’s name on Schedule 2.2.
	(b)		€5.000.000,00 of the Purchase Price shall be paid to the Selling Shareholders (allocated based on such Selling Shareholder’s pro rata percentage as set forth opposite such Selling Shareholder’s name on Schedule 2.2), by wire transfer of immediately available funds in accordance with the payment instructions set forth opposite such Selling Shareholder’s name on Schedule 2.2, on the first anniversary of the Closing Date if (and only if) all of the key employees identified on Schedule 7.9 remain employed by the Company or one of its subsidiaries on such anniversary (it being understood that if one or more of such persons shall die (or as a consequence of illness or accident become physically unable to perform the activity contemplated by the relevant Employment Agreement) or is terminated by the Acquired Companies without “right cause” or “justified reason” (giusta causa or giustificato motivo) prior to the first anniversary of the Closing Date, such person shall be excluded from the requirement contained in the preceding portion of this sentence); provided, however, if, prior to the first anniversary of the Closing Date, either: (i) the employment of all of the key employees identified on Schedule 7.9 has been terminated by the Acquired Companies without “right cause” or “justified reason” (giusta causa or giustificato motivo); or (ii) all of such key employees shall die (or as a consequence of illness or accident become physically unable to perform the activity contemplated by the relevant Employment Agreement), then the payment contemplated by this Section 2.2(b) shall be made promptly after such termination, death or supervened inability as described above (for the avoidance of doubt, and without prejudice to the foregoing, it is understood that no Selling Shareholder shall be entitled to the amount described in this Section 2.2(b), or to any portion thereof, if the employment of any of the key employees identified on Schedule 7.9 is terminated with “right cause” or “justified reason” (giusta causa or giustificato motivo) or if any such key employee voluntarily resigns from her or his employment (for a reason other than supervened inability as described above), in each case before the first anniversary of the Closing Date).
	(c)		€5.000.000,00 of the Purchase Price shall be paid to the Selling Shareholders (allocated based on such Selling Shareholder’s pro rata percentage as set forth opposite such Selling Shareholder’s name on Schedule 2.2), by wire transfer of immediately available funds in accordance with the payment instructions set forth opposite such Selling Shareholder’s name on Schedule 2.2, on the second anniversary of the Closing Date if (and only if) all of the key employees identified on Schedule 7.9 remain employed by the Company or one of its subsidiaries on such anniversary (it being understood that if one or more of such persons shall die (or as a consequence of illness or accident become physically unable to perform the activity contemplated by the relevant Employment Agreement) or is terminated by the Acquired Companies without “right cause” or “justified reason” (giusta causa or giustificato motivo) prior to the second anniversary of the Closing Date, such person shall be excluded from the requirement contained in the preceding portion of this sentence); provided,

			however, if, prior to the second anniversary of the Closing Date, either: (i) the employment of all of the key employees identified on Schedule 7.9 has been terminated by the Acquired Companies without “right cause” or “justified reason” (giusta causa or giustificato motivo); or (ii) all of such key employees shall die (or as a consequence of illness or accident become physically unable to perform the activity contemplated by the relevant Employment Agreement), then the payment contemplated by this Section 2.2(c) shall be made promptly after such termination, death or supervened inability as described above (for the avoidance of doubt, and without prejudice to the foregoing, it is understood that no Selling Shareholder shall be entitled to the amount described in this Section 2.2(c), or to any portion thereof, if the employment of any of the key employees identified on Schedule 7.9 is terminated with “right cause” or “justified reason” (giusta causa or giustificato motivo) or if any such key employee voluntarily resigns from her or his employment (for a reason other than supervened inability as described above), in each case before the second anniversary of the Closing Date).
	(d)		If the Selling Shareholders receive any amount pursuant to Section 2.2(b) or 2.2(c), the Purchaser shall also cause to be paid to the Selling Shareholders interest on such amount at the Specified Rate (as defined below) from the Closing Date until the day immediately preceding the date of payment, subject to any tax withholding obligations that the Selling Shareholders and the Purchaser determine are required by any applicable Legal Requirement. The “Specified Rate” shall mean: (1) the average Euro LIBOR three month rate for the period from the Closing Date though the day immediately preceding the date of payment, with such average rate being determined from the applicable Bloomberg page (or its successor) on the day immediately preceding the date of payment, plus (2) 100 basis points.
	(e)		€22.000.000,00 of the Purchase Price (the “Escrow Amount”) shall be paid at the Closing to an escrow account designated by the Escrow Agent. The Escrow Amount shall be maintained in an escrow account for the purposes of satisfying claims brought pursuant to Section 10 for the period of time and in accordance with the terms set forth in this Agreement and the Escrow Agreement (the “Escrow Account”). When (and if) all or any portion of the Escrow Amount is released from escrow to the Selling Shareholders pursuant to the terms of this Agreement and the Escrow Agreement, each Selling Shareholder shall be entitled to receive such Selling Shareholder’s pro rata percentage of such released amount as set forth opposite such Selling Shareholder’s name on Schedule 2.2, to be paid in accordance with the payment instructions set forth opposite such Selling Shareholder’s name on Schedule 2.2.

2.3

Closing. The closing of the Share Purchase (the “Closing”) shall take place at the offices of Lovells Studio Legale in Milan, Italy at 10:00 a.m. (local time) on a date to be designated by the Purchaser and communicated to the Selling Shareholders with five days prior notice (or such shorter prior notice as the Selling Shareholders may agree), which shall be no later than the fifth business day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or at such other time and date as the Purchaser and the Selling Shareholders may jointly designate. The date on which the Closing actually takes place is referred to in this Agreement as the “Closing Date.”

2.4

Closing Actions and Deliveries by the Selling Shareholders. In addition to any other action to be taken and to any other instrument to be executed and/or delivered at the Closing pursuant to this Agreement, at the Closing, the Selling Shareholders shall:

(a)

hold a valid totalitarian shareholders meeting of each of the Acquired Companies at which the following are unanimously approved: (i) new bylaws in the form indicated by the Purchaser; (ii) the election of a new board of directors, as indicated by the Purchaser; and (iii) the appointment of new board of statutory auditors, as indicated by the Purchaser; and

(b)

cause to be delivered to the Purchaser the following agreements and documents, each of which shall be in full force and effect:

(i)

the certificates representing the Shares, duly endorsed and notarized as required by Italian law in order to transfer to the Purchaser (or to a direct or indirect subsidiary of the Purchaser as its nominee pursuant to Article 1401 of the Italian Civil Code) valid and marketable title to such Shares and to properly register the Purchaser (or a direct or indirect subsidiary of the Purchaser as its nominee pursuant to Article 1401 of the Italian Civil Code) in the shareholders’ ledger of the Company;

(ii)

the “fissato bollato” executed by the Selling Shareholders;

(iii)

the Escrow Agreement, duly executed by the Selling Shareholders;

(iv)

Non-Competition, Non-Solicitation and Confidentiality Agreements, substantially in the form of Exhibit B (the “Non-Competition, Non-Solicitation and Confidentiality Agreements”), duly executed by the Persons identified on Schedule 2.4(b)(iv);

(v)

a certificate, duly executed by each Selling Shareholder, pursuant to which such Selling Shareholder certifies and represents to the Purchaser that the conditions set forth in Sections 7.1, 7.2, 7.4, 7.5, 7.6 and 7.9 have been duly satisfied (the “Closing Certificate”);

(vi)

a certificate, duly executed by each Selling Shareholder (the “Acquisition Consideration Certificate”), pursuant to which such Selling Shareholder certifies and represents to the Purchaser as to the following information: (A) the aggregate amount of Acquired Company Transaction Expenses paid prior to (or payable after) the Closing; (B) the consideration that each Selling Shareholder is entitled to receive pursuant to Section 2.2(a); and (C) the cash amount to be contributed to the Escrow Account with respect to such Selling Shareholder pursuant to Section 2.2(e);

(vii)

documentation, reasonably satisfactory to the Purchaser, in support of the calculation of the amounts set forth in the Acquisition Consideration Certificates;

(viii)

written resignations of all directors and members of the Board of Auditors of the Acquired Companies, effective as at the Closing;

(ix)

written acknowledgments pursuant to which the Acquired Companies’ outside legal counsel and any financial advisor, accountant or other

			Person who performed services for or on behalf of the Acquired Companies, or who is otherwise entitled to any compensation from the Acquired Companies, in connection with the Transactional Agreements, any of the Contemplated Transactions or otherwise, acknowledges: (A) the total amount of fees, costs and expenses of any nature that have been paid (or that will become payable) to such Person by any of the Acquired Companies in connection with the Transactional Agreements, any of the Contemplated Transactions and otherwise; and (B) that, except for the amount, if any, identified in such acknowledgment as that which is “to become payable,” it has been paid in full and is not (and will not be) owed any other amount by any of the Acquired Companies with respect to the Transactional Agreements, any of the Contemplated Transactions and otherwise;
	(x)		a lease agreement (the “Lease-Back Agreement”) substantially in the form of Exhibit C, duly executed by the Company and Finanziaria Baccini S.r.l.;
	(xi)		the Real Property Transfer Agreement (as defined below), duly executed by the Company and the other parties thereto; and
	(xii)		the Employment Agreements (the “Employment Agreements”) to be mutually agreed to by the Company and each of the employees identified in Schedule 7.9 based on the term sheet attached as Exhibit E, duly executed by each such Person.

2.5

Closing Actions and Deliveries by the Purchaser. In addition to any other action to be taken and to any other instrument to be executed and/or delivered at the Closing pursuant to this Agreement, at the Closing, the Purchaser shall:

(a)

deliver to the Selling Shareholders the following agreements and documents, each of which shall be in full force and effect:

(i)

the Escrow Agreement, duly executed by the Purchaser;

(ii)

a certificate, duly executed by the Purchaser, pursuant to which the Purchaser certifies and represents to the Selling Shareholders that the conditions set forth in Sections 8.1 and 8.2 have been satisfied;

(iii)

the “fissato bollato”, duly executed by the Purchaser, in respect of the purchase and sale of the Shares; and

(iv)

the Employment Agreements to be mutually agreed to by the Company and each of the employees identified in Schedule 7.9 based on the term sheet attached as Exhibit E, duly executed by the Company; and

(b)

cause to be paid: (i) to the appropriate tax authority the stamp duty relating to the transfer of the Shares at Closing (including “fissato bollato”), provided that the endorsement of the Shares is performed before a financial intermediary (it being understood that in no event shall the Purchaser be responsible for stamp duty of more than 0.05% of the consideration with respect to such Shares) and (ii) the fees and costs due to the Notary Public for all the activities to be performed at Closing.

3.

Representations and Warranties of the Selling Shareholders

The Selling Shareholders represent and warrant to and for the benefit of the Indemnitees that, except as set forth in the applicable part of the disclosure schedule prepared in accordance with Section 12.15 and delivered to the Purchaser on the date of this Agreement (the “Disclosure Schedule”):

3.1

Due Organization; Subsidiary; Etc.

(a)

Each of the Acquired Companies has been duly organized, and is validly existing and in good standing (to the extent that the laws of the jurisdiction of its formation recognize the concept of good standing), under the laws of the jurisdiction of its formation. Each of the Acquired Companies has full power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Contracts to which it is a party or by which it is bound.

(b)

Each of the Acquired Companies is qualified, licensed or admitted to do business, and is in good standing (to the extent that the applicable jurisdiction recognizes the concept of good standing), under the laws of the jurisdiction in which it is incorporated and in all other jurisdictions where the property owned, leased or operated by it or the nature of its business requires such qualification, license or admission.

(c)

Part 3.1(c) of the Disclosure Schedule accurately sets forth: (i) the names of the members of the board of directors (or similar body) and statutory auditors of each of the Acquired Companies; and (ii) the names and titles of the officers of each of the Acquired Companies. No Acquired Company has established any committees of the board of directors (or similar body) of such Acquired Company.

(d)

Except for the equity interests identified in Part 3.1(d) of the Disclosure Schedule (and except for securities held for cash management and similar short-term investment purposes), none of the Acquired Companies has ever owned, beneficially or otherwise, any shares or other securities of, or any direct or indirect equity interest in, any Entity. None of the Acquired Companies has agreed or is obligated to make any future investment in or capital contribution to any Entity. None of the Acquired Companies has guaranteed or is responsible or liable for any obligation of any Entity.

3.2

Charter Documents; Records. The Company has delivered to the Purchaser (and/or granted the Purchaser access in the Company’s online or physical data room) accurate and complete copies of: (a) the articles of associations, bylaws and memorandum of association or equivalent governing documents, including all amendments thereto, of each of the Acquired Companies (the “Charter Documents”); and (b) the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the shareholders (or members) and the board of directors (or other similar body) of each of the Acquired Companies. The books of account, stock records, minute books and other records of each of the Acquired Companies are accurate, up-to-date and complete in all material respects.

3.3

Capitalization.

(a)

The authorized share capital of the Company consists of 600,000 ordinary shares each with a par value of €1, of which 600,000 ordinary shares have been issued and are outstanding as at the date of this Agreement. Except as set forth in Part 3.3(a) of the Disclosure Schedule, the Company has not declared or paid any dividends on any shares of the Company’s share capital since April 1999 and until the date of this Agreement. All of the Shares have been duly authorized and validly issued, and are fully paid and nonassessable, and none of the Shares is subject to any repurchase option, forfeiture provision or restriction on transfer.

(b)

The Selling Shareholders together own, of record and beneficially, 100% of the share capital of the Company. There is no and as at the Closing will be no: (i) outstanding subscription, option, call, convertible note, warrant or right (whether or not currently exercisable) to acquire any share capital of the Company or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the Company’s share capital (or cash based on the value of such shares, including pursuant to any share appreciation rights) or other securities of the Company; (iii) Contract under which the Company is or may become obligated to sell or otherwise issue any shares of the Company’s share capital or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of the Company’s share capital or other securities of the Company.

(c)

All of the Shares have been issued and granted in compliance with: (i) all applicable Legal Requirements; and (ii) all requirements set forth in all applicable Contracts. None of the Shares were issued in violation of any preemptive rights or other rights to subscribe for or purchase securities of the Company.

(d)

Except as set forth in Part 3.3(d) of the Disclosure Schedule, as at the date of this Agreement, all of the issued and outstanding shares of capital stock of the Subsidiary are owned, of record and beneficially, by the Company free and clear of any Encumbrance, and as at the Closing, all of the issued and outstanding shares of capital stock of the Subsidiary will be owned, of record and beneficially, by the Company free and clear of any Encumbrance. The outstanding shares of the Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all applicable securities laws and other applicable Legal Requirements and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities of the Subsidiary. There are no options, warrants or other rights outstanding to subscribe for or purchase any shares or other securities of the Subsidiary and the Subsidiary is not subject to any Contract or order, writ, injunction, judgment or decree under which the Subsidiary is or may become obligated to sell or otherwise issue any shares or other securities. There are no preemptive rights applicable to any shares of the Subsidiary.

3.4

Financial Statements and Related Information.

(a)

The Company has delivered to the Purchaser the following financial statements (collectively, the “Acquired Company Financial Statements”): (i) the unaudited

			balance sheet (in Italian, stato patrimoniale) of the Company and the Subsidiary as at December 31, 2005, and the related unaudited statement of income (in Italian, conto profitti e perdite) of the Company and the Subsidiary for the year ended December 31, 2005, in each case and the notes thereto (in Italian, nota integrativa); (ii) the unaudited balance sheet of the Company and the Subsidiary as at December 31, 2006, and the related unaudited statement of income of the Company and the Subsidiary for the year ended December 31, 2006, in each case and the notes thereto; and (iii) the audited balance sheet of the Company as at June 30, 2007 (the “Most Recent Balance Sheet”) and the related audited statement of income of the Company for the six-month period ended June 30, 2007, in each case and the notes thereto.
	(b)		The Acquired Company Financial Statements present fairly the financial position of the Acquired Companies as at the respective dates thereof and the results of operations of the Acquired Companies for the periods covered thereby.
	(c)		The books, records and accounts of the Acquired Companies accurately and fairly reflect, in reasonable detail, the transactions in and dispositions of the assets of the Acquired Companies.
	(d)		Part 3.4(d) of the Disclosure Schedule provides an accurate and complete breakdown of all amounts (including loans, advances or other indebtedness) owed to any of the Acquired Companies by a director, officer (in Italian, dirigente), employee (whether regular or temporary, direct hire or leased), consultant or shareholder of any of the Acquired Companies as at the date of this Agreement (the “Related Party Receivables”). All Related Party Receivables (including those receivables reflected on the Most Recent Balance Sheet that have not yet been collected and those receivables that have arisen since June 30, 2007 and have not yet been collected): (i) represent valid obligations arising from bona fide transactions entered into in the ordinary course of business; and (ii) are current and will be collected in full when due, without any counterclaim or set off.
	(e)		Part 3.4(e) of the Disclosure Schedule provides the following information with respect to each account maintained by or for the benefit of any of the Acquired Companies at any bank or other financial institution: (i) the name of the bank or other financial institution at which such account is maintained; (ii) the account number; (iii) the type of account; and (iv) the names of all Persons who are authorized to sign checks or other documents with respect to such account.
	(f)		As at the date of this Agreement, there are Acquired Company Contracts with customers of the Acquired Companies that, if performed in accordance with their terms, would result in revenue in excess of €212.739.516,18 from the sale of products of the Acquired Companies to be shipped on or after the date hereof (it being understood that the representation in this sentence is not, and shall not be construed as, a guarantee that such Acquired Company Contracts will, in fact, result in such revenue). Each Acquired Company Contract contemplated by the first sentence of this Section 3.4(f) (including the customer’s name, the amount of potential revenue thereunder, the cancellation rights of such customer and the penalties, if any, for late delivery) is identified in Part 3.4(f)(i) of the Disclosure Schedule. Except as set forth in Part 3.4(f)(ii) of the Disclosure Schedule, none of the Selling Shareholders and none of the Acquired Companies has received any notice or other communication (in writing or otherwise) indicating that any

customer of any of the Acquired Companies or any other Person who is a party to any of the Acquired Company Contracts referred to in the first sentence of this Section 3.4(f) (such customers and other Persons being referred to as the “Specified Customers”) intends to cancel, delay or otherwise modify any orders from any of the Acquired Companies under any Acquired Company Contracts or reduce the amount of business expected to be completed under any Acquired Company Contract (it being understood that: (i) it shall not be a breach of the representation contained in this sentence if, after the date of this Agreement, the Selling Shareholders or the Acquired Companies receive notices or other communications (in writing or otherwise) indicating that Specified Customers intend to cancel orders from the Acquired Companies under any such Acquired Company Contract as long as: (A) no Selling Shareholder and no Acquired Company had Knowledge of an intended cancellation prior to the date of this Agreement that was not disclosed in Part 3.4(f) of the Disclosure Schedule; and (B) such notices or other communications of cancellation are for orders under Acquired Company Contracts totaling no more than €10.636.975,81 in the aggregate; and (ii) it shall be a breach of the representation contained in this sentence to the extent that the Selling Shareholders or the Acquired Companies receive notices or other communications (in writing or otherwise) indicating that Specified Customers intend to cancel orders from the Acquired Companies under Acquired Company Contracts if such notices or other communications of cancellation are for orders exceeding €10.636.975,81 in the aggregate, with the Selling Shareholders being liable for Damages relating to such excess, subject to the limitations set forth in Section 10.3). To the Knowledge of the Selling Shareholders, except as set forth in Part 3.4(f)(iii) of the Disclosure Schedule, the Acquired Companies do not currently expect to be late in delivering any Acquired Company Offering contemplated by the Acquired Company Contracts referred to in the first sentence of this Section 3.4(f) (it being understood that with respect to any expected late deliveries disclosed in Part 3.4(f)(iii) of the Disclosure Schedule, the Selling Shareholders shall include disclosure of the contract delivery date and the approximate date on which the product is currently expected to be delivered).

3.5

Absence of Undisclosed Liabilities.

(a)

None of the Acquired Companies has any accrued, contingent or other Liabilities of any nature, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with Italian GAAP, and whether due or to become due), except for: (i) Liabilities identified as such in the “liabilities” column of the Most Recent Balance Sheet and in the “liabilities” column of the balance sheet of the Subsidiary as at December 31, 2006; (ii) accounts payable or accrued salaries, retributions, severance indemnities (so called “TFR”) and social contribution that have been incurred by the Company since June 30, 2007 and by the Subsidiary since December 31, 2006, in each case in the ordinary course of business and consistent with applicable Legal Requirements and with the Acquired Companies’ past practices; (iii) Liabilities under any written Acquired Company Contracts entered into in the ordinary course of business consistent with the Acquired Companies’ past practices (taking into account the recent increase in the business of the Acquired Companies) to the extent that such Liabilities are expressly set forth in and identifiable by reference to the text of such Acquired Company Contracts; (iv) Liabilities under any oral Acquired Company Contracts that are entered into in the ordinary course of

			business consistent with the Acquired Companies’ past practices (taking into account the recent increase in the business of the Acquired Companies); and (v) the Liabilities identified in Part 3.5(a) of the Disclosure Schedule.
	(b)		Except as set forth in Part 3.5(b) of the Disclosure Schedule, none of the Acquired Companies is a party to or is involved in any Off-Balance Sheet Arrangements. None of the Acquired Companies has any outstanding guaranty with regard to any debt or other obligation of any other Person.

3.6

Absence of Changes. Except as set forth in Part 3.6 of the Disclosure Schedule, since June 30, 2007 with regard to the Company and since December 31, 2006 with regard to the Subsidiary:

(a)

except as set forth in Part 3.10(a)(xv) of the Disclosure Schedule, each of the Acquired Companies has conducted its business in the ordinary course;

(b)

there has not been any Material Adverse Effect, and no event has occurred and no circumstances exist, that, in combination with any other events or circumstances, will (or would reasonably be expected to) have a Material Adverse Effect;

(c)

there has not been any material loss, damage or destruction to, or any material interruption in the use of, any of the Acquired Companies’ material assets (whether or not covered by insurance);

(d)

except as set forth in Part 3.3(a) of the Disclosure Schedule, none of the Acquired Companies has declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of their respective capital stock or other securities, and none of the Acquired Companies has repurchased, redeemed or otherwise reacquired any of their respective shares of capital stock or other securities;

(e)

none of the Acquired Companies has made any capital expenditure (in Italian, acquisto di beni strumentali) which, when added to all other capital expenditures made on behalf of such respective Acquired Company, exceeds €250.000,00;

(f)

none of the Acquired Companies has amended or prematurely terminated, or waived any material right or remedy under, any Contract that is or would constitute a Material Contract (as defined in Section 3.10(a));

(g)

none of the Acquired Companies has: (i) acquired, leased or licensed any right or other asset from any other Person: (ii) sold or otherwise disposed of, or leased or licensed, any right or other asset to any other Person; or (iii) waived or relinquished any right, except for immaterial rights or other immaterial assets acquired, leased, licensed or disposed of in the ordinary course of business and consistent with past practices of the Acquired Companies;

(h)

none of the Acquired Companies has written off as uncollectible, or established any extraordinary reserve with respect to, any account receivable or other indebtedness in excess of €50.000,00 with respect to a single matter, or in excess of €150.000,00 in the aggregate;

(i)

none of the Acquired Companies has made any pledge of any of its assets or otherwise permitted any of its assets to become subject to any Encumbrance

			(other than nonexclusive licenses granted pursuant to the Contracts listed in Part 3.6(i) of the Disclosure Schedule), except for pledges of immaterial assets made in the ordinary course of business and consistent with such Acquired Company’s past practices;
	(j)		none of the Acquired Companies has: (i) lent money to any Person (other than pursuant to routine and reasonable travel advances made to current employees of the Acquired Companies in the ordinary course of business); or (ii) incurred or guaranteed any indebtedness for borrowed money;

(k)

none of the Acquired Companies has: (i) established, adopted or amended any Plan (as defined in Section 3.14(b)); (ii) made any bonus, profit-sharing or similar payment to, or increased the amount of wages, salary, commissions, fringe benefits or other compensation (including equity-based compensation, whether payable in cash or otherwise) or remuneration payable to, any of its directors, officers, employees (whether regular or temporary, direct hire or leased), contractors or consultants; or (iii) other than with respect to non-officer employees and in the ordinary course of business and consistent with past practices, hired any new employee;

(l)

none of the Acquired Companies has changed any of its methods of accounting or accounting practices in any respect;

(m)

none of the Acquired Companies has made any Tax election;

(n)

none of the Acquired Companies has commenced or settled any Legal Proceeding; and

(o)

none of the Acquired Companies has agreed or legally committed to take any of the actions referred to in clauses “(d)” through “(n)” above.

3.7

Title to Assets.

(a)

Each of the Acquired Companies owns, and has good and valid title to, all assets purported to be owned by it, including all Currently Owned Real Property. All of such assets are owned by the Acquired Companies free and clear of any liens or other Encumbrances, except for: (A) any lien for current Taxes not yet due and payable; and (B) minor liens that have arisen in the ordinary course of business and that do not (in any case or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of any of the Acquired Companies (reference is made to the easements (in Italian, servitù) indicated in Part 3.7(a) of the Disclosure Schedule).

(b)

Part 3.7(b) of the Disclosure Schedule identifies all assets that are material to the business of any of the Acquired Companies and that are being leased to any of the Acquired Companies. The Disclosure Schedule identifies all the assets that are material to any of the Acquired Companies and are not owned by, or leased to, an Acquired Company. No Selling Shareholder, and if a Selling Shareholder is an Entity, no Person who holds a direct or indirect interest in such Selling Shareholder, owns or has possession of any right to any asset that was used, is being used or is useful in connection with the business or the operations of any of the Acquired Companies.

3.8

Equipment; Real Property.

(a)

Part 3.8(a) of the Disclosure Schedule provides a list as at the date of this Agreement of all material items of equipment, fixtures and other tangible assets owned by or leased to any of the Acquired Companies, and states thereon whether such item is owned or leased. The assets identified in Part 3.8(a) of the Disclosure Schedule are reasonably adequate for the uses to which they are being put, are in good condition and repair (ordinary wear and tear excepted) and are adequate for the conduct of each of the Acquired Companies’ respective businesses in the manner in which such businesses are currently being conducted.

(b)

Prior to the Closing, the Company will enter into a preliminary sale and purchase agreement in the form attached hereto as Exhibit F and a final sale and purchase agreement in accordance therewith (collectively, the “Real Property Transfer Agreement”) pursuant to which all of the Company’s interests in the real property listed in Part 3.8(b) of the Disclosure Schedule (the “Transferred Real Property”) will be validly transferred to the parties identified in Part 3.8(b) of the Disclosure Schedule as at the Closing (the “Real Property Transfer”).

(c)

Part 3.8(c) of the Disclosure Schedule lists all real property and all interests in any real property (other than the leasehold interests identified in Part 3.8(d) of the Disclosure Schedule) owned as at the date of this Agreement by any Acquired Company. (All real property identified or required to be identified in Part 3.8(c) of the Disclosure Schedule as owned as at the date of this Agreement (including the Transferred Real Property), including all buildings, structures, fixtures and other improvements thereon, are referred to as the “Currently Owned Real Property.”)

(d)

Part 3.8(d) of the Disclosure Schedule lists all Contracts pursuant to which any of the Acquired Companies leases or otherwise occupies or uses any real property. (All real property identified or required to be identified in Part 3.8(d) of the Disclosure Schedule, including all buildings, structures, fixtures and other improvements thereon, are referred to as the “Leased Real Property.”)

(e)

Except as set forth in Part 3.8(e) of the Disclosure Schedule, the use and operation of the Leased Real Property and Currently Owned Real Property by the Acquired Companies, as well as the use and operation of real property, including all buildings, structures, fixtures and other improvements thereon, which has been owned by the Acquired Companies in the past and is no longer owned (the “Previously Owned Real Property”), is (and, since January 1, 2003, has been) authorized by, and is (and, since January 1, 2003, has been) in full compliance with, all applicable zoning, land use, building, fire, health, labor, safety and environmental laws and other Legal Requirements. There is no Legal Proceeding pending, or to the Knowledge of the Selling Shareholders threatened, that challenges or adversely affects, or would challenge or adversely affect, the continuation of the present use or operation of any Leased Real Property or the Currently Owned Real Property. To the Knowledge of the Selling Shareholders, there is no existing plan or study by any Governmental Body or by any other Person that challenges or otherwise adversely affects the continuation of the present use or operation of any Leased Real Property or the Currently Owned Real Property. There are no subleases, licenses, occupancy agreements or other contractual obligations that grant the right of use or occupancy of any of the

			Leased Real Property or the Currently Owned Real Property to any Person other than the Acquired Companies, and there is no Person in possession of any of the Leased Real Property or the Currently Owned Real Property other than the Acquired Companies.
	(f)		Except as set forth in Part 3.8(f) of the Disclosure Schedule, each of the Currently Owned Real Property and the Leased Real Property were built in compliance with: (i) the applicable administrative and town planning laws and regulations; (ii) the applicable town planning and construction rules; (iii) the building authorizations issued by the municipality in which it is located; and (iv) all other applicable Legal Requirements; and no changes to it or to its intended use have ever been made without the prior authorization of the competent authority, pursuant to the applicable Legal Requirements, as well as the applicable town planning and construction rules. The Currently Owned Real Property and Leased Real Property have obtained the fitness for use certificate (“certificato di agibilità”) and, after the issuance/obtainment of the same, no changes have been made which would have required the issuance of a new fitness for use certificate.

(g)

No specific plan (such as, but not limited to, lot plans or “piani di lottizzazione”) which may have an impact on the Currently Owned Real Property is currently in the course of being approved by any competent public authority.

(h)

In relation to the Currently Owned Real Property, all the urbanization burdens due to the municipality in which it is located by virtue of: (i) any specific plan (such as, but not limited to, lot plans); (ii) any unilateral deed (“atti unilaterali d’obbligo”); or (iii) any building authorization, have been duly fulfilled. Moreover, all the Taxes on the Currently Owned Real Property and the Previously Owned Real Property have been duly fulfilled, except from Taxes not yet payable.

3.9

Intellectual Property.

(a)

Part 3.9(a) of the Disclosure Schedule accurately identifies:

(i)

in Part 3.9(a)(i) of the Disclosure Schedule: (A) each item of Registered IP in which any of the Acquired Companies has or purports to have an ownership interest of any nature (whether exclusively, jointly with another Person or otherwise); (B) the jurisdiction in which such item of Registered IP has been registered or filed and the applicable registration or serial number; and (C) any other Person that has an ownership interest in such item of Registered IP and the nature of such ownership interest;

(ii)

in Part 3.9(a)(ii) of the Disclosure Schedule: (A) all Intellectual Property Rights or Intellectual Property licensed to any of the Acquired Companies (other than any generally available third-party commercial software); and (B) the corresponding Contract or Contracts pursuant to which such Intellectual Property Rights or Intellectual Property is licensed to any such Acquired Company;

(iii)

in Part 3.9(a)(iii) of the Disclosure Schedule, each Contract pursuant to which any Person has been granted any license under, or otherwise has

			received or acquired any right (whether or not currently exercisable) or interest in, any Acquired Company IP; and
	(iv)		in Part 3.9(a)(iv) of the Disclosure Schedule, all royalties, sales commissions or similar payments that any of the Acquired Companies is, will be or could be required to pay upon the use of any Acquired Company IP and the Contract pursuant to which such royalties, sales commissions or similar payments are to (or could) be paid.

(b)

The Acquired Companies exclusively own all right, title and interest to and in the Acquired Company IP (other than Intellectual Property Rights or Intellectual Property exclusively licensed to any of the Acquired Companies, as identified in Part 3.9(a)(ii) of the Disclosure Schedule) free and clear of any Encumbrances (other than nonexclusive licenses granted pursuant to the Contracts listed in Part 3.9(a)(ii) of the Disclosure Schedule). Without limiting the generality of the foregoing:

	(i)		except as set forth in Part 3.9(b)(i) of the Disclosure Schedule, all Acquired Company Offerings were developed solely by employees of the Acquired Companies and are owned exclusively by the Acquired Companies;
	(ii)		except as set forth in Part 3.9(b)(ii) of the Disclosure Schedule, no funding, facilities or personnel of any Governmental Body or public or private college, university or other educational institution were used to develop or create, in whole or in part, any Acquired Company IP;
	(iii)		the Acquired Companies have taken all reasonable steps to maintain the confidentiality of and otherwise protect and enforce its rights in all proprietary information held by the Acquired Companies, or purported to be held by the Acquired Companies, as a trade secret;
	(iv)		none of the Acquired Companies is or has ever been a member or promoter of, or a contributor to, any industry standards body or similar organization that could require or obligate such Acquired Company to grant or offer to any other Person any license or right to any Acquired Company IP; and
	(v)		except for the licenses and rights granted in Contracts identified or referred to in Part 3.9(a)(ii) and 3.9(a)(iii) of the Disclosure Schedule, none of the Acquired Companies is bound by, and no Acquired Company IP is subject to, any Contract containing any covenant or other provision that in any way limits or restricts the ability of any of the Acquired Companies to exploit, assert, or enforce any Acquired Company IP anywhere in the world.

(c)

Except as set forth in Part 3.9(c) of the Disclosure Schedule, all Acquired Company IP is valid, subsisting and enforceable. Without limiting the generality of the foregoing:

	(i)		none of the Acquired Companies nor any of the Selling Shareholders has engaged in any fraud or inequitable conduct, patent misuse or copyright misuse;
	(ii)		no trademark (whether registered or unregistered) or trade name owned, used or applied for by any of the Acquired Companies conflicts or interferes with any trademark (whether registered or unregistered) or trade name owned, used or applied for by any other Person;
	(iii)		each item of Acquired Company IP that is Registered IP is and at all times has been in compliance with all Legal Requirements, and all filings, payments and other actions required to be made or taken to maintain such item of Acquired Company IP in full force and effect have been made by the applicable deadline; and
	(iv)		no interference, opposition, reissue, reexamination or other Legal Proceeding of any nature is or has been pending or, to the Knowledge of the Selling Shareholders, threatened, in which the scope, validity or enforceability of any Acquired Company IP is being, has been or could reasonably be expected to be contested or challenged.

(d)

Except for those license rights expressly granted to the Company pursuant to: (i) that certain Grant of License on Industrial Property Rights dated Dec. 13, 2005 by and between Mr. Gisulfo Baccini and the Company; and (ii) that certain terminated Patent License Agreement, dated Jul. 12, 1999 by and between Mr. Gisulfo Baccini and the Company, no rights or licenses under the Acquired Patents or other Assigned IP Rights (or covenants not to assert or enforce the Acquired Patents or other Assigned IP Rights) have ever been granted to, or made for the benefit of, any Person.

(e)

Except as set forth in Part 3.9(e) of the Disclosure Schedule, to the Knowledge of the Selling Shareholders, no Person has infringed, misappropriated, or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any Acquired Company IP. No letter or other written or electronic communication or correspondence has been sent or otherwise delivered by or to any of the Acquired Companies or any Representative of any of the Acquired Companies regarding any actual, alleged or suspected infringement or misappropriation of any Acquired Company IP.

(f)

Except as set forth in Part 3.9(f) of the Disclosure Schedule, none of the Acquired Companies has ever infringed (directly, contributorily, by inducement or otherwise), misappropriated or otherwise violated any Intellectual Property Right of any other Person. Without limiting the generality of the foregoing:

(i)

no Acquired Company Offering and no Acquired Company IP has ever infringed, misappropriated or otherwise violated any Intellectual Property Right of any other Person;

(ii)

no infringement, misappropriation or similar claim or Legal Proceeding is pending or, to the Knowledge of the Selling Shareholders, has been threatened against any of the Acquired Companies or against any other Person who may be entitled to be indemnified, defended, held harmless

			or reimbursed by any of the Acquired Companies with respect to such claim or Legal Proceeding; and
	(iii)		none of the Acquired Companies has received any notice or other communication (in writing or otherwise) relating to any actual, alleged or suspected infringement, misappropriation or violation of any Intellectual Property Right of another Person.

(g)

The representations and warranties contained in the IP Transfer Agreement (as defined below) are accurate.

3.10

Contracts.

(a)

Part 3.10(a) of the Disclosure Schedule accurately identifies:

	(i)		each Acquired Company Contract relating to the employment of, or the performance of services by any director, officer, employee (whether regular or temporary, direct hire or leased), contractor or consultant; any Acquired Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make any severance, termination or similar payment to any current or former director, officer, employee (whether regular or temporary, direct hire or leased), contractor or consultant; and any Acquired Company Contract pursuant to which any of the Acquired Companies is or may become obligated to make any bonus or similar payment (other than payment in respect of salary) to any current or former director, officer, employee (whether regular or temporary, direct hire or leased), contractor or consultant;
	(ii)		each Acquired Company Contract which provides for indemnification of any officer, director or employee;
	(iii)		each Acquired Company Contract relating to the merger, consolidation, reorganization or any similar transaction with respect to any of the Acquired Companies;
	(iv)		each Acquired Company Contract relating to the acquisition, transfer, development or sharing of any Intellectual Property or Intellectual Property Right (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Acquired Companies with any customer or other Person);
	(v)		each Acquired Company Contract relating to the acquisition, sale, spin-off or outsourcing of the Subsidiary or any business unit or operation of any of the Acquired Companies;
	(vi)		each Acquired Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
	(vii)		each Acquired Company Contract imposing any restriction on the right or ability of any of the Acquired Companies: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services