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**UNITED STATES**

**SECURITIES AND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

 

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**FORM 10-Q**

 

**(Mark One)**

 

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

 

**For the quarterly period ended March 31, 2009**

 

**Or**

 

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

 

**For the transition period from                    to                     **

 

**Commission file number: 001-33069**

 

**OCCAM NETWORKS, INC.**

(Exact name of registrant as specified in itscharter)

 

| **Delaware**                             | ** ** | **77-0442752**         |
|------------------------------------------|------------|------------------------|
| (State or other jurisdiction of          |       | (I.R.S. Employer       |
| incorporation or organization)           |       | Identification Number) |
| ** **                               | ** ** | ** **             |
| **6868 Cortona Drive**                   | ** ** | ** **             |
| **Santa Barbara, California**            | ** ** | **93117**              |
| (Address of principal executive offices) |       | (Zip Code))            |

 

Registrant’s telephone number, including area code: **(805) 692-2900**

 

Indicateby check mark whether the registrant (1) has filed all reports required tobe filed by Section 13 or 15(d) of the Securities Exchange Act of1934 during the preceding 12 months (or for such shorter period that theregistrant was required to file such reports), and (2) has been subject tosuch filing requirements for the past 90 days.   Yes  x  No o

 

Indicate by check markwhether the registrant has submitted electronically and posted on its corporateWeb site, if any, every Interactive Data File required to be submitted andposted pursuant to Rule 405 of Regulation S-T during the preceding 12months (or for such shorter period that the registrant was required to submitand post such files).   Yes o  No o

 

Indicateby check mark whether the registrant is a large accelerated filer, anaccelerated filer, a non-accelerated filer, or a smaller reporting company. Seedefinition of “large accelerated filer,” “accelerated filer” and “smallerreporting company” in Rule 12b-2 of the Exchange Act. (check one).

 

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

 

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

 

Asof May 6, 2009, the number of shares outstanding of the registrant’scommon stock was 20,395,070 shares.

 

 

 

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**INDEX**

 
| ** **                             | ** **                                                                                  | **Page** |
|----------------------------------------|---------------------------------------------------------------------------------------------|----------|
|                                   |                                                                                        |     |
| PART I—FINANCIAL INFORMATION | 1                                                                                           |
|                                   |                                                                                        |     |
| Item 1.                                | Financial Statements                                                                        | 1        |
|                                   |                                                                                        |     |
| Item 2.                                | Management’s Discussion And Analysis Of  Financial Condition And Results Of Operations | 13       |
|                                   |                                                                                        |     |
| Item 3.                                | Quantitative  And Qualitative Disclosures About Market Risk                                 | 21       |
|                                   |                                                                                        |     |
| Item 4.                                | Controls And  Procedures                                                                    | 21       |
|                                   |                                                                                        |     |
| PART II—OTHER  INFORMATION   | 24                                                                                          |
|                                   |                                                                                        |     |
| Item 1.                                | Legal Proceedings                                                                           | 24       |
|                                   |                                                                                        |     |
| Item 1a.                               | Risk Factors                                                                                | 26       |
|                                   |                                                                                        |     |
| Item 2.                                | Unregistered  Sales Of Equity Securities And Use Of Proceeds                                | 43       |
|                                   |                                                                                        |     |
| Item 3.                                | Defaults  Upon Senior Securities                                                            | 43       |
|                                   |                                                                                        |     |
| Item 4.                                | Submission  Of Matters To A Vote Of Security Holders                                        | 43       |
|                                   |                                                                                        |     |
| Item 5.                                | Other Information                                                                           | 43       |
|                                   |                                                                                        |     |
| Item 6.                                | Exhibits                                                                                    | 43       |

 

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**PART I—FINANCIAL INFORMATION**

 

**ITEM 1.****                        FINANCIALSTATEMENTS**

 

**OCCAM NETWORKS, INC. AND SUBSIDIARY**

**CONDENSED CONSOLIDATED BALANCE SHEETS**

**(In thousands, except share data)**

 
| ** **                                                                                                                                                                                | ** ** | **March 31,** | ** **   | **December 31,** | ** ** |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------|--------------|-----------------------|------------|
| ** **                                                                                                                                                                                | ** ** | **2009**           | ** **   | **2008 (*)**     | ** ** |
| ** **                                                                                                                                                                                | ** ** | **(Unaudited)**    | ** **   | ** **            | ** ** |
| **ASSETS**                                                                                                                                                                                |       |               |         |                  |       |
| Current assets:                                                                                                                                                                           |       |               |         |                  |       |
| Cash and cash equivalents                                                                                                                                                                 |       | $                  |  30,804 |                  | $          |  30,368 |   |
| Restricted cash                                                                                                                                                                           |       | 12,626             |         | 13,771                |       |
| Accounts receivable, net                                                                                                                                                                  |       | 10,653             |         | 17,391                |       |
| Inventories                                                                                                                                                                               |       | 14,318             |         | 16,761                |       |
| Prepaid and other current assets                                                                                                                                                          |       | 2,282              |         | 3,290                 |       |
| Total current assets                                                                                                                                                                      |       | 70,683             |         | 81,581                |       |
| Property and equipment, net                                                                                                                                                               |       | 10,210             |         | 10,834                |       |
| Intangibles, net                                                                                                                                                                          |       | 228                |         | 251                   |       |
| Other assets                                                                                                                                                                              |       | 64                 |         | 68                    |       |
| Total assets                                                                                                                                                                              |       | $                  |  81,185 |                  | $          |  92,734 |   |
|                                                                                                                                                                                      |       |               |         |                  |       |
| **LIABILITIES AND STOCKHOLDERS’ EQUITY**                                                                                                                                             |       |               |         |                  |       |
| Current liabilities:                                                                                                                                                                      |       |               |         |                  |       |
| Accounts payable                                                                                                                                                                          |       | $                  |  4,284  |                  | $          |  6,911 |   |
| Accrued liabilities                                                                                                                                                                       |       | 6,711              |         | 8,687                 |       |
| Deferred revenue                                                                                                                                                                          |       | 12,680             |         | 17,612                |       |
| Deferred rent                                                                                                                                                                             |       | 361                |         | 394                   |       |
| Capital lease obligations                                                                                                                                                                 |       | 25                 |         | 24                    |       |
| Total current liabilities                                                                                                                                                                 |       | 24,061             |         | 33,628                |       |
| Deferred rent, net of current portion                                                                                                                                                     |       | 1,847              |         | 1,892                 |       |
| Capital lease obligations, net of current  portion                                                                                                                                        |       | 38                 |         | 43                    |       |
| Total liabilities                                                                                                                                                                         |       | 25,946             |         | 35,563                |       |
| Commitments and contingencies (See Note 6)                                                                                                                                                |       |               |         |                  |       |
| Stockholders’ equity:                                                                                                                                                                |       |               |         |                  |       |
| Common stock, $0.001 par value, 250,000,000  shares authorized; and 20,395,070 shares issued and outstanding at  March 31, 2009 and 20,268,488 December 31, 2008, respectively. |       | 289                |         | 289                   |       |
| Additional paid-in capital                                                                                                                                                                |       | 184,507            |         | 183,409               |       |
| Accumulated deficit                                                                                                                                                                       |       | (129,557           | )            | (126,527              | )          |
| Total stockholders’ equity                                                                                                                                                           |       | 55,239             |         | 57,171                |       |
| Total liabilities and stockholders’ equity                                                                                                                                           |       | $                  |  81,185 |                  | $          |  92,734 |   |

 

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***              **Derived from audited consolidated financialstatements included in its Annual Report on Form 10-K.

 

Theaccompanying notes are an integral part of these condensed consolidatedfinancial statements.

 

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**OCCAM NETWORKS, INC. AND SUBSIDIARY**

**UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS**

**(In thousands, except per share data)**

 
| ** **                                                   | ** ** | **Three Months Ended**   | ** ** |
|--------------------------------------------------------------|------------|--------------------------|------------|
| ** **                                                   | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **                                                   | ** ** | **(Unaudited)**          | ** ** |
|                                                         |       |                     |       |   |   |
| Revenue                                                      |       | $                        | 19,419     |   | $ | 19,653 |   |
| Cost of revenue                                              |       | 11,245                   |       | 11,220 |   |
| Gross margin                                                 |       | 8,174                    |       | 8,433 |   |
| Operating expenses:                                          |       |                     |       |   |   |
| Research and product-development                             |       | 4,389                    |       | 4,559 |   |
| Sales and marketing                                          |       | 4,581                    |       | 4,978 |   |
| General and administrative                                   |       | 2,366                    |       | 3,123 |   |
| Total operating expenses                                     |       | 11,336                   |       | 12,660 |   |
| Loss from operations                                         |       | (3,162                   | )          | (4,227 | ) |
| Other income (expense), net                                  |       | —                   |       | (654 | ) |
| Interest income, net                                         |       | 145                      |       | 360 |   |
| Loss before provision for income taxes                       |       | (3,017                   | )          | (4,521 | ) |
| Provision for income taxes                                   |       | 13                       |       | 19 |   |
| Net loss                                                     |       | $                        | (3,030     | ) | $ | (4,540 | ) |
| Net loss per share attributable to common  stockholders:     |       |                     |       |   |   |
| Basic and diluted net loss per share                         |       | $                        | (0.15      | ) | $ | (0.23 | ) |
|                                                         |       |                     |       |   |   |
| Shares used to compute basic and diluted  net loss per share |       | 20,149                   |       | 19,779 |   |
| Stock-based compensation included in:                        |       |                     |       |   |   |
| Cost of revenue                                              |       | $                        | 89         |   | $ | 107 |   |
| Research and product-development                             |       | 223                      |       | 296 |   |
| Sales and marketing                                          |       | 197                      |       | 187 |   |
| General and administrative                                   |       | 234                      |       | 232 |   |
| Total stock-based compensation                               |       | $                        | 743        |   | $ | 822 |   |

 

Theaccompanying notes are an integral part of these condensed consolidatedfinancial statements.

 

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**OCCAM NETWORKS, INC. AND SUBSIDIARY**

**UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS**

**(In thousands)**

 
| ** **                                                                   | ** ** | **Three Months Ended**   | ** ** |
|------------------------------------------------------------------------------|------------|--------------------------|------------|
| ** **                                                                   | ** ** | **March 31,  2009** | ** ** | **March 31,  2008*** | ** ** |
| ** **                                                                   | ** ** | **(Unaudited)**          | ** ** |
| **Operating activities**                                                     |       |                     |       |   |   |
| Net loss                                                                     |       | $                        | (3,030     | ) | $ | (4,540 | ) |
| Adjustments to reconcile net loss to net  cash used in operating activities: |       |                     |       |   |   |
| Depreciation and amortization                                                |       | 826                      |       | 746 |   |
| Stock-based compensation expense                                             |       | 743                      |       | 822 |   |
| Accounts receivable reserves                                                 |       | (79                      | )          | 54 |   |
| Inventory reserves                                                           |       | (145                     | )          | (10 | ) |
| Write-off of developed technology and  related inventory                     |       | —                   |       | 944 |   |
| Changes in operating assets and  liabilities:                                |       |                     |       |   |   |
| Accounts receivable                                                          |       | 6,817                    |       | 4,689 |   |
| Inventories                                                                  |       | 2,588                    |       | (50 | ) |
| Prepaid Expenses and other assets                                            |       | 1,012                    |       | (364 | ) |
| Accounts payable                                                             |       | (2,627                   | )          | (2,629 | ) |
| Accrued Expenses                                                             |       | (1,976                   | )          | 865 |   |
| Deferred revenue                                                             |       | (4,932                   | )          | (1,876 | ) |
| Deferred rent                                                                |       | (78                      | )          | — |   |
| Net cash used in operating activities                                        |       | (881                     | )          | (1,349 | ) |
| **Investing activities**                                                     |       |                     |       |   |   |
| Purchases of property and equipment                                          |       | (179                     | )          | (239 | ) |
| Decrease in restricted cash                                                  |       | 1,145                    |       | (2,705 | ) |
| Net cash provided by (used in) investing  activities                         |       | 966                      |       | (2,944 | ) |
| **Financing activities**                                                     |       |                     |       |   |   |
| Proceeds from the exercise of stock options                                  |       | —                   |       | 64 |   |
| Proceeds from employee stock purchase plan                                   |       | 355                      |       | — |   |
| Payments of capital lease obligations                                        |       | (4                       | )          | (4 | ) |
| Net cash provided by financing activities                                    |       | 351                      |       | 60 |   |
| Net increase (decrease) in cash and cash  equivalents                        |       | 436                      |       | (4,233 | ) |
| Cash and cash equivalents, beginning of  period                              |       | 30,368                   |       | 37,637 |   |
| Cash and cash equivalents, end of period                                     |       | $                        | 30,804     |   | $ | 33,404 |   |
| **Supplemental disclosure of cash flow  information:**                       |       |                     |       |   |   |
| Income taxes paid                                                            |       | $                        | 144        |   | $ | 32 |   |
| Interest paid                                                                |       | $                        | 1          |   | $ | 19 |   |

 

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***              **Certain amounts have been reclassified toconform to current period’s presentation.

 

Theaccompanying notes are an integral part of these condensed consolidatedfinancial statements.

 

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**OCCAM NETWORKS, INC. AND SUBSIDIARY**

**NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIALSTATEMENTS**

 

**1.****   ****Business and Basis of Presentation**

 

Occam Networks, Inc. (“Occam,”the “Company,” “we” or “us”) develops markets and supports innovative broadbandaccess products designed to enable telecom service providers to offer bundledvoice, video and high speed internet, or Triple Play, services over both copperand fiber optic networks.  The Company’sBroadband Loop Carrier (BLC) is an integrated hardware and software platformthat uses Internet Protocol (IP) and Ethernet technologies to increase thecapacity of local access networks, enabling the delivery of advanced TriplePlay services.

 

*Basis ofPresentation*

 

The accompanying condensedconsolidated financial statements are unaudited.  The condensed consolidated balance sheet at December 31,2008 is derived from Occam’s audited consolidated financial statements includedin its Annual Report on Form 10-K for the year ended December 31,2008.  These unaudited condensedconsolidated financial statements reflect all material adjustments, consistingonly of normal recurring adjustments, which, in the opinion of management, arenecessary to fairly state our financial position, results of operations andcash flows for the interim periods.  Theresults of operations for the current interim periods are not necessarilyindicative of results to be expected for the entire year.

 

The unaudited condensedconsolidated financial statements include management’s estimates andassumptions that affect the reported amounts of assets and liabilities as ofthe date of the consolidated financial statements and the reported amounts ofrevenue and expenses during the reporting period.  Actual results could differ from thoseestimates, and material effects on consolidated operating results andconsolidated financial position may result.

 

The unaudited interimcondensed financial statements have been prepared in accordance with accountingprinciples generally accepted in the United States (“GAAP”) for interimfinancial information and with the instructions to Form 10-Q and Article 10of Regulation S-X.  Accordingly,they do not include all of the information and notes required by GAAP forannual financial statements.  In theopinion of management, all adjustments consisting of normal and recurringentries considered necessary for a fair statement of the results for theinterim periods have been included in the Company’s financial position as of March 31,2009, the results of its operations for the three months ended March 31,2009 and 2008, and its cash flow for the three months ended March 31, 2009and 2008.

 

Certain amounts in the priorperiods presented have been reclassified to conform to the current periodfinancial statement presentation. These reclassifications had no effect onpreviously reported net income (loss).

 

*Use ofEstimates*

 

The preparation of financialstatements in conformity with accounting principles generally accepted in theUnited States of America requires management to make estimates and assumptionsthat affect the amounts reported in the consolidated financial statements andthe accompanying notes.  Actual resultscould differ from those estimates and such differences may be material to theconsolidated financial statements.

 

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*RevenueRecognition*

 

Occam recognizes revenuewhen persuasive evidence of sales arrangements exist, delivery has occurred orservices have been rendered, the buyer’s price is fixed or determinable andcollection is reasonably assured.  Weallow credit for products returned within our policy terms.

 

In addition to theaforementioned general policy, we enter into transactions that representmultiple-element arrangements, which may include training and post-salestechnical support and maintenance to our customers as needed to assist them ininstallation or use of our products, and make provisions for these costs in theperiods of sale.  Multiple-elementarrangements are assessed to determine whether they can be separated into morethan one unit of accounting.  Amultiple-element arrangement is separated into more than one unit of accountingif all of the following criteria are met:

 

·**                 **the delivereditem(s) has value to the customer on a stand-alone basis;

 

·**                 **there isobjective and reliable evidence of the fair value of the undelivered item(s);and

 

·**                 **the arrangementincludes a general right of return relative to the delivered item(s) anddelivery or performance of the undelivered item(s) is considered probableand substantially in our control.

 

If these criteria are notmet, then revenue is deferred until such criteria are met or until the period(s) overwhich the last undelivered element is delivered.  If there is objective and reliable evidenceof fair value for all units of accounting in an arrangement, the arrangementconsideration is allocated to the separate units of accounting based on eachunit’s relative fair value.

 

Incertain circumstances, the Company enters into arrangements with customers whoreceive financing support in the form of long-term low interest rate loans fromthe United States Department of Agriculture’s Rural Utilities Service, or RUS.The terms of the RUS contracts provide that in certain instances transfer oftitle of the Company’s products does not occur until customer acceptance,however the Company waited for final cash payment on these contracts beforerecognizing revenue. Effective January 1, 2009 based on this historicalexperience, the Company has determined that revenue recognition on RUScontracts is appropriate upon customer acceptance, given the remaining revenuerecognition criteria, such as collectability, under SAB 104 have been met. As aresult the Company recognized approximately $3.3 million in revenue for thefirst quarter of fiscal 2009 based on customer acceptance, not final cashpayment. We believe the impact of this determination on any annual period isnot material.

 

In certain circumstances,the Company enters into transactions with value-added resellers where theresellers may not have the ability to pay for these sales independent ofpayment to them by the end-user.  Inthese cases, the Company does not recognize revenue until payment has beenreceived, provided the remaining revenue recognition criteria are met.

 

We warrant our products forperiods up to five years and record an estimated warranty accrual when shipped.

 

**2.****   ****Fair Value Measurements**

 

Effective January 1,2008, the Company adopted SFAS No. 157, “Fair Value Measurements” (“SFAS157”), except as it applies to the nonfinancial assets and nonfinancialliabilities subject to Financial Staff Position SFAS 157-2.  SFAS 157 clarifies that fair value is an exitprice, representing the amount that would be received to sell an asset or paidto transfer a liability in an orderly transaction between marketparticipants.  As such, fair value is amarket-based measurement that should be determined based on assumptions thatmarket participants would use in pricing an asset or a liability.  As a basis for considering such assumptions,SFAS 157 establishes a three-tier value hierarchy, which prioritizes the inputsused in the valuation methodologies in measuring fair value:

 

Level 1 - Observable inputsthat reflect quoted prices (unadjusted) for identical assets or liabilities inactive markets.

 

Level 2 - Include otherinputs that are directly or indirectly observable in the marketplace.

 

Level 3 - Unobservableinputs which are supported by little or no market activity.

 

The fair value hierarchyalso requires an entity to maximize the use of observable inputs and minimizethe use of unobservable inputs when measuring fair value.

 

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In accordance with SFAS 157,we measure our cash equivalents at fair value. Our cash equivalents are classified within Level 1.  Cash equivalents are valued primarily usingquoted market prices utilizing market observable inputs.  At March 31, 2009, cash equivalentsconsisted of money market funds measured at fair value on a recurringbasis.  Fair value of our money marketfunds was $29.7 million at March 31, 2009.

 

**3.****   ****Inventories**

 

Inventories consist of thefollowing (in thousands):

 
| ** **         | ** ** | **March 31,  2009** | ** ** | **December 31,  2008** | ** ** |
|--------------------|------------|--------------------------|------------|-----------------------------|------------|
| Raw materials      |       | $                        | 962        |                        | $          | 495 |   |
| Work-in-process    |       | 740                      |       | 4                           |       |
| Finished goods (1) |       | 12,616                   |       | 16,262                      |       |
|               |       | $                        | 14,318     |                        | $          | 16,761 |   |

 

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(1)**         **$6.3 million and$8.1 million of finished goods inventory were shipped to customers as of March 31,2009 and December 31, 2008, respectively.  The majoritywere sent to RUS contract customers and value-added resellers.  Revenue and related Cost of revenue were notrecognized at the time of shipments as defined by the Company’s revenuerecognition policy and therefore were included in inventories.  For more information regarding our revenuerecognition policy, see Revenue Recognition under Note 1 to theseunaudited condensed consolidated financial statements.

 

**4.****   ****Intangibles, net**

 

In October 2007, wepurchased certain assets from Terawave Communications, Inc., including abroadband passive optical network (BPON) asset purchase that addressedMetro-Ethernet/Telemetry applications. We intended to sell this line of business and recorded an intangibleasset of approximately $0.8 million as of the asset acquisition date.  During the period ended March 31, 2008,we were unable to secure a feasible offer and therefore decided to terminatethe sales efforts and instead focus on bringing new Gigabyte Passive OpticalNetwork (“GPON”) technology to market. As a result of this decision, we wrote-off both the intangible asset andthe related inventory.

 

In June 2008, wedetermined the intangible for customer relationships to be fully impaired andwrote-off the remaining unamortized balance of approximately $37,000.  Valuation for the intangible was based onestimated Broadband Passive Optical Network (“BPON”) revenues through 2009 fromcertain customers of Terawave Communications, Inc.  With final shipments of our last-time-buypromotion of BPON products to former Terawave customers during the period endedJune 30, 2008, these customer relationships ceased to have future valuefor the Company.

 

**5.****   ****Net Loss Per Share Attributable toCommon Stockholders**

 

The following table sets forth the computation of basic and dilutedloss per share required under Statement of Financial Accounting Standards No. 128,“Earnings per Share” (“SFAS No. 128”) (in thousands, except per sharedata):

 
| ** **                                                  | ** ** | **Three Months Ended**   | ** ** |
|-------------------------------------------------------------|------------|--------------------------|------------|
| ** **                                                  | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| Numerator                                                   | ** ** | ** **               | ** ** | ** ** | ** ** |
| Net loss available to common stockholders                   |       | $                        | (3,030     | ) | $ | (4,540 | ) |
| Denominator                                                 |       |                     |       |   |   |
| Shares used to compute basic and diluted net loss per share |       | 20,149                   |       | 19,779 |   |
| Basic and diluted net loss per share                        |       | $                        | (0.15      | ) | $ | (0.23 | ) |

 

Basic and diluted net loss per share are identical because we hadlosses from continuing operations and the impact of common equivalent shareswas anti-dilutive and therefore excluded. The anti-dilutive weighted averageshares that were excluded from the shares used in computing diluted net lossper share for three months ended March 31, 2009 and March 31, 2008,amounted to approximately 3.0 million and 2.4 million shares, respectively.

 

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**6.****   ****Commitments and Contingencies**

 

The Company leases itsoffice facilities and certain equipment under non-cancelable operating leaseagreements, which expire at various dates through 2015.  Operating leases contain escalation clauseswith annual base rent adjustments or a cost of living adjustment.  Total rent expense was $285,704 and $365,464 for the threemonths ended March 31, 2009 and 2008, respectively.  Minimum annual lease commitments undernon-cancelable operating leases are as follows (in thousands):

 
| **Remainder of fiscal year,**        | ** ** | ** ** | ** ** |
|--------------------------------------|------------|------------|------------|
| 2009                                 |       | 1,052      |       |
| Fiscal year ending December 31, |       |       |       |
| 2010                                 |       | 1,433      |       |
| 2011                                 |       | 1,469      |       |
| 2012                                 |       | 1,505      |       |
| 2013                                 |       | 1,543      |       |
| 2014                                 |       | 639        |       |
| Thereafter                           |       | 328        |       |
| Total Minimum Lease Payments         |       | $          | 7,969      |   |
|                                      |            |            |            |  |

 

Royalties

 

From time to time, theCompany may license certain technology for incorporation into itsproducts.  Under the terms of thesemulti-year agreements, royalty payments will be made based on per-unit sales ofcertain of the Company’s products.  TheCompany incurred royalty expense of $41,727 and $60,600 for the threemonths ended March 31, 2009 and 2008, respectively.

 

**Legal Proceedings**

 

**2007 Class Action Litigation**

 

On April 26, 2007 and May 16, 2007, two putative class actioncomplaints were filed in the United States District Court for the CentralDistrict of California against us and certain of our officers. The complaintsallege that the defendants violated sections 10(b) and 20(a) ofthe Securities Exchange Act of 1934, or the Exchange Act, and SEC Rule 10b-5promulgated thereunder by making false and misleading statements and omissionsrelating to our financial statements and internal controls with respect to revenuerecognition. The complaints seek, on behalf of persons who purchased our commonstock during the period from May 2, 2006 to April 17, 2007, damagesof an unspecified amount.

 

On July 30, 2007, Judge Christina A. Snyder consolidated theseactions into a single action, appointed NECA-IBEW Pension Fund (The DecaturPlan) as lead plaintiff, and approved its selection of lead counsel. On November 16,2007, the lead plaintiff filed a consolidated complaint. This consolidatedcomplaint added as defendants certain of our current and former directors andofficers, our current and former outside auditors, the lead underwriter of oursecondary public offering in November 2006, and two venture capital firmswho were early investors in us. The consolidated complaint alleged thatdefendants violated sections 10(b), 20(a) and 20A of the Exchange Actand SEC Rule 10b-5 promulgated thereunder, as well as sections 11 and15 of the Securities Act of 1933, or Securities Act, by making false andmisleading statements and omissions relating to our financial statements andinternal controls with respect to revenue recognition that requiredrestatement. The consolidated complaint seeks, on behalf of persons whopurchased, Occam’s common stock during the period from April 29, 2004 to October 15,2007, damages of an unspecified amount.

 

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On January 25, 2008, defendants filed motions to dismiss theconsolidated complaint. On July 1, 2008, Judge Snyder issued an ordergranting in part and denying in part defendants’ motions. This order dismissedall claims against certain of our current and former directors, the 20A claimin its entirety, the section 10(b) claim against the auditors andventure capital firms, and the section 11 claims against the venturecapital firms. On July 16, 2008, lead plaintiff filed an amended complaintto conform to the Court’s July 1, 2008 order. Defendants answered thisamended complaint on August 29, 2008. We believe that we have meritoriousdefenses in this action, and intend to defend ourselves vigorously. Failure byus to obtain a favorable resolution of the claims set forth in the consolidatedcomplaint could have a material adverse effect on our business, results ofoperations and financial condition. Currently, the amount of such materialadverse effect cannot be reasonably estimated.

 

**IPO Allocation Litigation**

 

In June 2001, three putative stockholder class action lawsuitswere filed against Accelerated Networks, certain of its then officers anddirectors and several investment banks that were underwriters of AcceleratedNetworks’ initial public offering. The cases, which have since beenconsolidated, were filed in the United States District Court for the SouthernDistrict of New York. The Court appointed a lead plaintiff on April 16,2002, and plaintiffs filed a Consolidated Amended Class Action Complaint(the “Complaint”) on April 19, 2002. The Complaint was filed on behalf ofinvestors who purchased Accelerated Networks’ stock between June 22, 2000and December 6, 2000 and alleged violations of Sections 11 and 15 ofthe 1933 Act and Sections 10(b) and 20(a) and Rule 10b-5 ofthe 1934 Act against one or both of Accelerated Networks and the individualdefendants. The claims were based on allegations that the underwriterdefendants agreed to allocate stock in Accelerated Networks’ initial publicoffering to certain investors in exchange for excessive and undisclosedcommissions and agreements by those investors to make additional purchases inthe aftermarket at pre-determined prices. Plaintiffs alleged that theprospectus for Accelerated Networks’ initial public offering was false andmisleading in violation of the securities laws because it did not disclosethese arrangements. These lawsuits are part of the massive “IPO allocation”litigation involving the conduct of underwriters in allocating shares ofsuccessful initial public offerings.

 

Webelieve that over three hundred other companies have been named in more thanone thousand similar lawsuits that have been filed by some of the sameplaintiffs’ law firms. In October 2002, the plaintiffs voluntarilydismissed the individual defendants without prejudice. On February 1, 2003a motion to dismiss filed by the issuer defendants was heard and the courtdismissed the 10(b), 20(a) and rule 10b-5 claims against Occam. On October 13,2004, the Court certified a class in six of the approximately 300 other nearlyidentical actions (the “focus” cases) and noted that the decision was intendedto provide guidance to all parties regarding class certification in theremaining cases. The Underwriter Defendants appealed the decision and theSecond Circuit Court of Appeals vacated the district court’s decision grantingclass certification in those six cases on December 5, 2006. Plaintiffsfiled a motion for rehearing. On April 6, 2007, the Second Circuit deniedthe petition, but noted that Plaintiffs could ask the District Court to certifya more narrow class than the one that was rejected. On October 3, 2007Plaintiff has filed a motion to certify a new class and a second amendedcomplaint based on the Second Circuit Appeals Court decision. An oppositionbrief was filed by both Underwriter Defendants and the Issuer Defendants on December 21,2007 and a reply brief was filed on January 28, 2008. On March 28,2008, the plaintiffs filed an amended reply brief in support of their motion tocertify the class of plaintiffs. The Underwriter Defendants and the issuerDefendants had until August 31, 2008 to file an answer to the amendedcomplaint. The Court has not ruled on the motion. The insurers, theunderwriters and the Plaintiffs subsequently agreed to global mediation in theinterest of trying to resolve this case without the further need forlitigation. The mediation commenced in late June of 2008 and resulted incurrent settlement negotiations whereby the parties agreed to a settlement. Thesettlement is currently being reviewed by the Court.

 

Prior to the Second Circuit’s December 5, 2006 ruling, we agreed,together with over three hundred other companies similarly situated, to settlewith the Plaintiffs. A settlement agreement and related agreements weresubmitted to the Court for approval. The settlement would have provided, amongother things, a release of the Company and of the individual defendants for theconduct alleged to be wrongful in the Complaint in exchange for a guaranteefrom the Company’s insurers regarding recovery from the underwriter defendantsand other consideration from the Company regarding its underwriters. In lightof the Second Circuit opinion, liaison counsel for the issuers informed theDistrict Court that the settlement cannot be approved because the defined settlementclass, like the litigation class, cannot be certified. We cannot predictwhether we will be able to renegotiate a settlement that complies with theSecond Circuit’s mandate.

 

Due to the inherent uncertainties of litigation, we cannot accuratelypredict the ultimate outcome of the matter. We have not recorded any accrualrelated to this proposed settlement because Occam expects any settlementamounts to be covered by its insurance policies.

 

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**IPO Short Swing Profits Litigation**

 

In late 2007, we received a letter from Vanessa Simmonds, a putativeshareholder, demanding that we investigate and prosecute a claim for allegedshort-swing trading in violation of Section 16(b) of the SecuritiesExchange Act of 1934, 15 U.S.C. § 78p(b), by the underwriter of ourinitial public offering (“IPO”) and certain unidentified directors, officersand shareholders of us (then known as Accelerated Networks). We evaluated thedemand and declined to prosecute the claim. On October 12, 2007, theputative shareholder commenced a civil lawsuit in the U.S. District Court forthe Western District of Washington against Credit Suisse Group, the leadunderwriter of our IPO, alleging violations of Section 16(b). Thecomplaint alleges that the combined number of shares of our common stockbeneficially owned by the lead underwriter and certain unnamed officers,directors, and principal shareholders exceeded ten percent of its outstandingcommon stock from the date of Occam’s IPO on June 23, 2000, through atleast June 22, 2001. It further alleges that those entities andindividuals were thus subject to the reporting requirements of Section 16(a) andthe short-swing trading prohibition of Section 16(b), and failed to complywith those provisions. The complaint seeks to recover from the lead underwriterany “short-swing profits” obtained by it in violation of Section 16(b). Wewere named as a nominal defendant in the action, but have no liability for theasserted claims. None of our directors or officers of Occam are named asdefendants in this action.

 

On October 29, 2007, the case was reassigned to Judge James L.Robart along with fifty-four other Section 16(b) cases seekingrecovery of short-swing profits from underwriters in connection with variousIPOs. The Underwriters and Issuers have filed a motion to dismiss the case andreply briefs have been filed. The Court heard oral argument on January 19,2009 from all parties. On March 12, 2009, the Court dismissed the 16 (b) complaintagainst the issuer defendants including Occam on both jurisdictional andstatute of limitation grounds. On March 31, 2009, the Plaintiffs filed aNotice of Appeal. Currently all pleadings relative to the appeal must be filedby August 31, 2009. Oral argument will be heard thereafter.

 

Due to the inherent uncertainties of threatened litigation, we cannotaccurately predict the ultimate outcome of the matter, but we believe that theoutcome of this litigation will not have a material adverse impact on ourconsolidated financial position and results of operations. We have not recordedany accruals related to the demand letters or Section 16(b) litigationbecause we expect any resulting resolution to be covered by our insurancepolicies.

 

**Other Matters**

 

From time to time, we are subject to threats of litigation or actuallitigation in the ordinary course of business, some of which may be material.We believe that, except as described above, there are no currently pendingmatters that, if determined adversely to us, would have a material effect onour business or that would not be covered by our existing liability insurancemaintained by us.

 

*Indemnificationsand Guarantees*

 

TheCompany enters into indemnification provisions under its agreements with othercompanies in the ordinary course of business, typically with its contractors,customers, value-added resellers, and landlords. In connection with its 2006offering, the Company also agreed to indemnify the underwriters in the offeringand certain stockholders who sold shares as part of the offering with respectto certain liabilities arising from the offering. Under these provisions, theCompany generally indemnifies and hold harmless the indemnified party forlosses suffered or incurred by the indemnified party as a result of itsactivities or, in some cases, as a result of the indemnified party’s activitiesunder the agreement. These indemnification provisions generally survive terminationof the underlying agreement. The maximum potential amount of future paymentsthe Company could be required to make under these indemnification provisions isgenerally unlimited.  As of March 31,2009, the Company did not have any material accruedliability relating to the defense of lawsuits or settlement of claims relatedto these indemnification agreements. During fiscal 2008, wereimbursed Norwest Venture Partners for indemnification expenses in the amountof $80,166. During the quarter ended March 31, 2009, we reimbursed U.S.Venture Partners for indemnification expenses incurred in 2008 in the amount of$192,166.

 

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*PurchaseOrders*

 

Under the terms of Occam’scontract manufacturer agreements, Occam is required to place orders with itscontract manufacturers to provide inventory to meet its estimated sales demand.Certain contract manufacturer agreements include production forecast change,lead-time and cancellation provisions. At March 31, 2009, open purchaseorders with contract manufacturers were $7.9 million.

 

*Warranties*

 

Occam provides standardwarranties with the sale of products for up to five years from date ofshipment. The estimated cost of providing the product warranty is recorded atthe time of shipment. Occam maintains product quality programs and processesincluding actively monitoring and evaluating the quality of its suppliers.  Occam quantifies and records an estimate forwarranty related costs based on Occam’s actual history, projected return andfailure rates and current repair and replacement costs.  The following table summarizes changes inOccam’s accrued warranty liability that is included in accrued liabilities (inthousands):

 
| ** **                                  | ** ** | **March 31,** | ** ** | **December 31,** | ** ** |
|---------------------------------------------|------------|--------------------|------------|-----------------------|------------|
| ** **                                  | ** ** | **2009**           | ** ** | **2008**              | ** ** |
| ** **                                  | ** ** | ** **         | ** ** | ** **            | ** ** |
| Warranty liability at beginning of the year |       | $                  | 4,326      |                  | $          | 3,470 |   |
| Accruals for warranty during the period     |       | 397                |       | 2,340                 |       |
| Warranty utilization                        |       | (696               | )          | (1,484                | )          |
| Warranty liability at end of the period     |       | $                  | 4,027      |                  | $          | 4,326 |   |

 

**7.****   ****Accrued Liabilities**

 

The major components ofaccrued liabilities are (in thousands):

 
| ** **                                  | ** ** | **March 31,  2009** | ** ** | **December 31,  2008** | ** ** |
|---------------------------------------------|------------|--------------------------|------------|-----------------------------|------------|
| Warranty accruals                           |       | $                        | 4,027      |                        | $          | 4,326 |   |
| Payroll, paid time off and related accruals |       | 1,515                    |       | 2,727                       |       |
| Commissions                                 |       | 209                      |       | 316                         |       |
| Royalty accruals                            |       | 15                       |       | 41                          |       |
| Other accruals                              |       | 945                      |       | 1,277                       |       |
| Total                                       |       | $                        | 6,711      |                        | $          | 8,687 |   |

 

**8.****   ****Stock Options, Stock Awards,Employee Stock Purchase Plan, and Share-Based Compensation**

 

Stock option activity, underthe Company’s stock option plan for the three months ended March 31, 2009is summarized as below (shares and intrinsic value in thousands):

 
| ** **                          | ** ** | **Options** | ** ** | **Weighted-  Average  Exercise Price** | ** ** | **Weighted-  Average  Remaining  Contractual  Term** | ** ** | **Aggregate  Intrinsic  Value** | ** ** |
|-------------------------------------|------------|-------------|------------|---------------------------------------------|------------|------------------------------------------------------|------------|---------------------------------|------------|
| Outstanding at January 1, 2009 |       | 3,015       |       | $                                           | 6.71       |                                                 | 7.11       |                            | $          | 15 |   |
| Granted                             |       | 52          |       | $                                           | 3.00       |                                                 | —     |                            | —     |   |
| Exercised                           |       | —      |       | $                                           | —     |                                                 | —     |                            | —     |   |
| Forfeited or expired                |       | (37         | )          | $                                           | 5.18       |                                                 | —     |                            | —     |   |
| Outstanding at March 31, 2009  |       | 3,030       |       | $                                           | 6.66       |                                                 | 6.89       |                            | $          | 32 |   |
| Exercisable at March 31, 2009  |       | 1,917       |       | $                                           | 7.31       |                                                 | 5.83       |                            | $          | 10 |   |

 

The weighted-average fairvalue of options granted to employees on the date of the grant during the threemonths ended March 31, 2009 was $1.53 per share.

 

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The 2006 Equity IncentivePlan, or 2006 Plan, provides for automatic annual increases in the number ofshares available for issuance under the 2006 Plan effective as of the first dayof each fiscal year equal to the lesser of (a) 3% of the outstandingshares of the common stock on the first day of the applicable fiscal year; (b) 750,000shares; or (c) such other amount as the Board of Directors or a committeeof the board may determine. On April 1, 2009, the Board of Directorsapproved an increase of 608,055 shares reserved for issuance under the 2006Plan for fiscal 2009. This represents 3% of the outstanding common shares as ofJanuary 1, 2009. In addition the Board of Directors approved an amendmentto the 2006 Plan, subject to stockholder approval, to increase the number ofshares of common stock reserved for issuance under the Plan by 900,000 shares.On May 7, 2009, the stockholders approved the amendment to the 2006 plan.

 

***Stock Awards***

 

A summary of the Company’srestricted stock unit activities is as follows (in thousands):

 
| ** **                          | ** ** | **Restricted Stock   Units** | ** ** | **Weighted-  Average  Remaining  Contractual  Term** | ** ** | **Aggregate  Intrinsic  Value** | ** ** |
|-------------------------------------|------------|------------------------------|------------|------------------------------------------------------|------------|---------------------------------|------------|
| Outstanding at January 1, 2009 |       | 180                          |       | 1.44                                                 |       | $                               | 432        |   |
| Awarded                             |       | —                       |       | —                                               |       | —                          |       |
| Released                            |       | —                       |       | —                                               |       | —                          |       |
| Forfeited or expired                |       | (3                           | )          | —                                               |       | —                          |       |
| Outstanding at March 31, 2009  |       | 177                          |       | 1.20                                                 |       | $                               | 466        |   |

 

***Employee Stock Purchase Plan***

 

In March 2008, theBoard of Directors approved an amendment to our 2006 EmployeeStock Purchase Plan ~~(~~or the ~~“~~ESPP~~”)~~.  The amendment increased the maximum number ofshares of the Company’s common stock that an eligible employee may purchaseduring each offering period from 1,000 shares to 5,000 shares.  In connection with the ESPP, 126,582 shareswere issued on February 17, 2009 at a purchase price per share of $2.80.

 

The ESPP provides for anautomatic annual increases in the number of shares available for issuance underthe ESPP effective as of the first day of each fiscal year equal to the lesserof (a) 300,000 shares of common stock; (b) 1.5% of the outstandingshares of common stock on the first day of the applicable fiscal year; or (c) anamount determined by the Board of Directors. On April 1, 2009, the Boardof Directors approved an increase of 300,000 shares in the number of sharesreserved for issuance under the ESPP.

 

***Stock-Based Compensation***

 

The following tablesummarizes the impact of SFAS 123(R) for all share-based awards toemployees and directors, including employee stock options, restricted stockunits and employee stock purchase plan based on the estimated fair value on ourConsolidated Statements of Operations (in thousands):

 
| ** **                                                            | ** ** | **Three Months Ended**   | ** ** |
|-----------------------------------------------------------------------|------------|--------------------------|------------|
| ** **                                                            | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **                                                            | ** ** | ** **               | ** ** | ** ** | ** ** |
| **Employee stock-based compensation in:**                             |       |                     |       |   |   |
| Cost of revenue                                                       |       | $                        | 89         |   | $ | 107 |   |
| Research and product-development                                      |       | 223                      |       | 296 |   |
| Sales and marketing                                                   |       | 197                      |       | 187 |   |
| General and administrative                                            |       | 234                      |       | 232 |   |
| Total SFAS 123(R) stock-based compensation in operating expenses |       | 654                      |       | 715 |   |
| Total SFAS 123(R) stock-based compensation                       |       | $                        | 743        |   | $ | 822 |   |

 

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As of March 31, 2009,total unamortized stock-based compensation cost related to non-vested stock optionsafter accounting for estimated forfeitures was $3.3 million, which the Companyexpects to recognize over the remaining vesting period of each grant, up to thenext 48 months.

 

Upon adoption of SFAS123(R), we selected the Black-Scholes option pricing model as the mostappropriate model for determining the estimated fair value for stock-basedawards.  The use of the Black-Scholesmodel requires the use of extensive actual employee exercise behavior data andthe use of a number of complex assumptions including expected volatility,risk-free interest rate, forfeitures, and expected dividends.  The assumptions used to value options grantedare as follows:

 
| ** **              | ** ** | **Three Months Ended**   | ** ** |
|-------------------------|------------|--------------------------|------------|
| ** **              | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| Risk-free interest rate |       | 1.9                      | %          | 2.9 | % |
| Expected term (years)   |       | 5.0                      |       | 4.9 |   |
| Dividend yield          |       | 0                        | %          | 0 | % |
| Expected volatility     |       | 58.2                     | %          | 62 | % |

 

The risk-free interest rateis based on the U.S. Treasury yield curve in effect at the time of grant.  We do not anticipate declaring dividends inthe foreseeable future.  Expectedvolatility is based on the annualized weekly historical volatility of our stockprice and we believe it is indicative of future volatility.  We estimate the expected life of optionsgranted based on historical exercise and post-vesting cancellation patternswith consideration of our industry peers of similar size with similar optionvesting periods.  Our analysis of stockprice volatility and option lives involves management’s best estimates at thetime of determination.  SFAS 123(R) alsorequires that we recognize compensation expense for only the portion of optionsor stock units that are expected to vest. Therefore, we apply an estimated forfeiture rate that is derived fromhistorical employee termination behavior. If the actual number of forfeitures differs from that estimated bymanagement, additional adjustments to compensation expense may be required infuture periods.

 

**9.****Subsequent Events**

 

The Company announced in May 2009 that it hasundertaken an initiative to reduce its total headcount by approximately 10%, inorder to reduce expenses and conserve cash in the current economic environment.The Company expects to record a charge of approximately $0.2 million associatedwith this initiative in the second quarter of 2009.

 

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| **ITEM  2.** | **MANAGEMENT’S  DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS** |
|--------------|-------------------------------------------------------------------------------------------------|

 

You should read thefollowing discussion and analysis in conjunction with our condensedconsolidated financial statements and the related notes thereto included inthis Quarterly Report on Form 10-Q and with Management’sDiscussion and Analysis of Financial Condition and Results of Operationscontained in the Company’s Annual Report on Form 10-K for the year ended December 31,2008.  The discussion in this Reportcontains both historical information and forward-looking statements.  A number of factors affect our operatingresults and could cause our actual future results to differ materially from anyforward-looking results discussed below. In some cases, you can identify forward-looking statements byterminology such as “anticipates,” “appears,” “believes,” “continue,” “could,” “estimates,”“expects,” “feels,” “goal,” “hope,” “intends,” “may,” “our future successdepends,” “plans,” “potential,” “predicts,” “projects,” “reasonably,” “seek tocontinue,” “should,” “thinks,” “will” or the negative of these terms or othercomparable terminology.  These statementsare only predictions.  Actual events orresults may differ materially.  Inaddition, historical information should not be considered an indicator offuture performance.  Factors that couldcause or contribute to these differences include, but are not limited to, therisks discussed in this Report in Part II, Item 1A under the caption “RiskFactors.”  These factors may cause ouractual results to differ materially from any forward-looking statements.

 

Although we believe that theexpectations reflected in the forward-looking statements are reasonable, wecannot guarantee future results, levels of activity, performance orachievements.  Moreover, we are under noduty to update any of the forward-looking statements after the date of this Quarterly Report on Form 10-Qto conform these statements to actual results. These forward-looking statements are made in reliance upon the safeharbor provision of The Private Securities Litigation Reform Act of 1995.

 

**Overview**

 

We develop, market andsupport innovative broadband access products designed to enable telecom serviceproviders to offer bundled voice, video and high speed internet, or TriplePlay, services over both copper and fiber optic networks.  Our Broadband Loop Carrier, or BLC, is anintegrated hardware and software platform that uses Internet Protocol, or IP,and Ethernet technologies to increase the capacity of local access networks,enabling our customers to deliver advanced services, including voice-over-IP,or VoIP, IP-based television, or IPTV, video-on-demand, or VoD, andhigh-definition television, or HDTV.  Ourplatform simultaneously supports traditional voice and data services, enablingour customers to leverage their existing networks and migrate to IP withoutdisruption.  In addition to providing ourcustomers with increased bandwidth, our products provide incremental value byoffering software-based features to improve the quality, resiliency andsecurity of network service offerings. We market our products through a combination of direct and indirectchannels.  Our direct sales efforts arefocused on the incumbent local exchange providers, or ILECs, segment of thetelecom service provider market.  As of March 31,2009, we had shipped our BLC platform to over 300 service provider customers.

 

Fromour inception through March 31, 2009, we have incurred cumulative netlosses of approximately $129.6 million. We realized income fromoperations and were profitable on a net income basis during the quarters ended December 31,2008, December 31, 2006, September 24, 2006, and for the year ended December 31,2006. Previously, we had not been profitable on a quarterly or annual basis,excluding the quarter ended December 25, 2005, in which we realized modestoperating income of $3,000. We experienced operating and net losses in thefirst, second and third quarters of fiscal 2008 and for fiscal 2008 as a whole.We do not believe that our return to profitability in the fourth quarter offiscal 2008 is indicative of future quarterly performance. In the first quarterof 2009, we continued to experience a slowdown in bookings and delays incustomer projects. We believe this condition reflects the macroeconomic weakness as well as the timing effectsof thegovernment stimulus programs. We expect the uncertainty surrounding the stimulusfunds will resolve itself through the year, however in the short term it willcontinue to affect our customer bookings activity level.

 

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**CriticalAccounting Policies and Estimates**

 

Management’s Discussion andAnalysis of Financial Condition and Results of Operations discusses ourconsolidated financial statements, which have been prepared in accordance withaccounting principles generally accepted in the United States of America.  The preparation of these consolidatedfinancial statements requires us to make estimates and assumptions that affectthe reported amounts of assets and liabilities and the disclosure of contingentassets and liabilities at the date of the consolidated financial statements andthe reported amounts of revenue and expenses during the reporting period.  On an ongoing basis, we evaluate our estimatesand judgments, including those related to revenue recognition, inventories,accounts receivable reserves, sales return reserves, litigation, warrantyreserve, stock-based compensation, and valuation of deferred income taxassets.  We base our estimates andjudgments on historical experience and on various other factors that arebelieved to be reasonable under the circumstances, the results of which formthe basis for making judgments about the carrying values of assets andliabilities that are not readily apparent from other sources.

 

Weincluded in our Annual Report on Form 10-K for the year ended December 31,2008 a discussion of our most critical accounting policies, which are thosethat are most important to the portrayal of our financial condition and resultsof operations and require management’s most difficult, subjective and complexjudgments, often as a result of the need to make estimates about the effect ofmatters that are inherently uncertain.

 

Incertain circumstances, we enter into arrangements with customers who receivefinancing support in the form of long-term low interest rate loans from theUnited States Department of Agriculture’s Rural Utilities Service, or RUS. Theterms of the RUS contracts provide that in certain instances transfer of titleof our products does not occur until customer acceptance, however we waited forfinal cash payment on these contracts before recognizing revenue.  Effective January 1,2009 based on this historical experience, we have determined that revenuerecognition on RUS contracts is appropriate upon customer acceptance, given theremaining revenue recognition criteria, such as collectability, under SAB 104 have been met. As a result we recognizedapproximately $3.3 million in revenue for the first quarter of fiscal 2009based on customer acceptance, not final cash payment. We believe the impact ofthis determination on any annual period is not material.

 

**Results ofOperations**

 

*Three-monthsended March 31, 2009 and 2008*

 

*Revenue(in thousands, except percentages)*

 
| ** ** | ** ** | **Three Months Ended**   | ** ** |
|------------|------------|--------------------------|------------|
| ** ** | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** ** | ** ** | ** **               | ** ** | ** ** | ** ** |
| Revenue    |       | $                        | 19,419     |   | $ | 19,653 |   |
|            |            |                          |            |  |  |  |  |

 

Ourrevenue is principally comprised of our BLC 6000 series system product line,cabinets and related accessories. Revenue decreased by $0.3 million or 1% to $19.4 million for the threemonths ended March 31, 2009 as compared to revenue of $19.7 million forthe three months ended March 31, 2008. Approximately $3.3 million ofrevenue recognized during the quarter was associated with recognition based oncustomer acceptance not final cash payment. In the first quarter of 2009 wecontinued to experience a slow down in customer bookings activity. We believethis slow down is due to overall poor economic conditions as well as the impactof our customers evaluating the timing and availability of the potentialgovernment broadband stimulus funds. We expect the uncertaintysurrounding the stimulus funds will resolve itself through the year, as moredetails become available, however in the short term it will continue to affectour customer bookings activity level.

 

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*Cost of revenue and gross margin (in thousands,except percentages)*

 
| ** **              | ** ** | **Three Months Ended**   | ** ** |
|-------------------------|------------|--------------------------|------------|
| ** **              | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **              | ** ** | ** **               | ** ** | ** ** | ** ** |
| Cost of revenue         |       | $                        | 11,245     |   | $ | 11,220 |   |
| Gross margin            |       | $                        | 8,174      |   | $ | 8,433 |   |
| Gross margin percentage |       | 42                       | %          | 43 | % |

 

Cost of revenue includes thecost of products shipped for which revenue was recognized, warranty provision,costs of any manufacturing yield problems, re-work costs, manufacturingoverhead, provisions for obsolete inventory and the cost of post-sales support.

 

Gross margin decreased to42% of revenue for the three months ended March 31, 2009 compared to grossmargin of 43% for the three months ended March 31, 2008. The decrease inthe gross margin is primarily due to a decrease inrevenue.

 

We expect that our grossmargin will vary from quarter-to-quarter due in part to product mix.  To the extent that cabinets and otherlower-margin products represent an increased percentage of our total revenue inany period, it will tend to reduce our gross margin. Additionally, as weintroduce new products into the market, we anticipate our gross margin mayfluctuate as a function of our product mix.

 

 

*Researchand product- development expenses (in thousands, except percentages)*

 
| ** **                                                  | ** ** | **Three Months Ended**   | ** ** |
|-------------------------------------------------------------|------------|--------------------------|------------|
| ** **                                                  | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **                                                  | ** ** | ** **               | ** ** | ** ** | ** ** |
| Research and product-development                            |       | $                        | 4,389      |   | $ | 4,559 |   |
| Research and product-development as a percentage of revenue |       | 23                       | %          | 23 | % |
|                                                             |            |                          |            |  |  |  |  |

 

Research andproduct-development expenses consist primarily of salaries and otherpersonnel-related costs, prototype component and assembly costs, third-partydesign services and consulting costs, and other costs related to the design,development, and testing of our products. Research and product-development costs are expensed as incurred, exceptfor capital expenditures, which are capitalized and depreciated over theirestimated useful lives, generally two to three years.  Research and development expenses decreasedby $0.2 million or 4% to $4.4 million for the three months ended March 31,2009 as compared to $4.6 million for the three months ended March 31,2008. The decrease in research and product-development expenses wasattributable to decreased outside services. Research and product-developmentexpenses for the three months ended March 31, 2008 includedexpenses attributable to the release of our Gigabit Passive OpticalNetworks (“GPON”) products. The research and product-development expenses mayincrease in future periods as we continue to make investments in our productsand technologies.

 

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*Sales andmarketing expenses (in thousands, except percentages)*

 
| ** **            | ** ** | **Three Months Ended**   | ** ** |
|-----------------------|------------|--------------------------|------------|
| ** **            | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **            | ** ** | ** **               | ** ** | ** ** | ** ** |
| Sales and marketing   |       | $                        | 4,581      |   | $ | 4,978 |   |
| Percentage of revenue |       | 24                       | %          | 25 | % |
|                       |            |                          |            |  |  |  |  |

 

Salesand marketing expenses consist primarily of salaries, sales commissions, andother personnel-related costs, development and distribution of promotionalmaterials, and other costs related to generating sales and conducting corporatemarketing activities.  Sales andmarketing expenses decreased by $0.4 million or 8% to $4.6 million for thethree months ended March 31, 2009 as compared to $5.0 million for thethree months ended March 31, 2008. This decrease was primarily due tolower commissions and marketing event expenses. We currently expect sales and marketing expenses to be largelyconsistent with current expense levels, but may vary with levels of customerbookings.

 

*Generaland administrative expenses (in thousands, except percentages)*

* *
| ** **                 | ** ** | **Three Months Ended**   | ** ** |
|----------------------------|------------|--------------------------|------------|
| ** **                 | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **                 | ** ** | ** **               | ** ** | ** ** | ** ** |
| General and administrative |       | $                        | 2,366      |   | $ | 3,123 |   |
| Percentage of sales        |       | 12                       | %          | 16 | % |
|                            |            |                          |            |  |  |  |  |

 

General and administrativeexpenses consist primarily of salaries and other personnel-related costs forexecutive, finance, human resources, and administrative personnel.Additionally, general and administrative expenses include professional fees,liability insurance and other general corporate costs such as rent, legal,utilities and accounting expenses. General and administrativeexpenses decreased by $0.7 million or 23% to $2.4 million for the three monthsended March 31, 2009 as compared to $3.1 million for the three monthsended March 31, 2008.  General andadministrative expenses decreased primarily due to lower outside services andprofessional fees, partially offset by an increase in legal fees associatedwith our ongoing litigation. We currently expect general andadministrative expenses to be consistent with current expense levels.

 

*Stock-basedcompensation (in thousands)*

 
| ** **                     | ** ** | **Three Months Ended**   | ** ** |
|--------------------------------|------------|--------------------------|------------|
| ** **                     | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **                     | ** ** | ** **               | ** ** | ** ** | ** ** |
| Cost of sales                  |       | $                        | 89         |   | $ | 107 |   |
| Research and development       |       | 223                      |       | 296 |   |
| Sales and marketing            |       | 197                      |       | 187 |   |
| General and administrative     |       | 234                      |       | 232 |   |
| Total stock-based compensation |       | $                        | 743        |   | $ | 822 |   |

 

Stock-based compensationexpense decreased by approximately $79,000 or 10% to $0.7 million for the threemonths ended March 31, 2009 as compared to approximately $0.8 million forthe three months ended March 31, 2008. This decrease is primarily attributable to the estimated forfeiture ratechange used in our stock-based compensation expense calculations.

 

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We anticipate that thestock-based compensation expense calculated under SFAS No. 123(R) willcontinue to have a material effect on our consolidated statement of operations.

 

*Interestincome (expense), net (in thousands)*

* *
| ** **                        | ** ** | **Three Months Ended**   | ** ** |
|-----------------------------------|------------|--------------------------|------------|
| ** **                        | ** ** | **March 31,  2009** | ** ** | **March 31,  2008** | ** ** |
| ** **                        | ** ** | ** **               | ** ** | ** ** | ** ** |
| Interest income                   |       | $                        | 146        |   | $ | 393 |   |
| Interest expense                  |       | (1                       | )          | (33 | ) |
| Total other income (expense), net |       | $                        | 145        |   | $ | 360 |   |

 

Interest income, netdecreased by $215,000 or 60% to $145,000 for the three months ended March 31,2009, as compared to $360,000 for the three months ended March 31,2008.  The decrease in interest incomewas primarily attributable to lower cash balances and lower interest rates.

 

*Income taxexpense*

 

For income tax purposes, we consider our projected annual income andthe utilization of our net operating loss carryforwards among other factors.For the three months ended March 31, 2009 and March 31, 2008, weprovided $13,000 and $19,000 respectively, for federal and state income taxes.

 

Subsequent Event

 

We announced in May 2009 that we haveundertaken an initiative to reduce our total headcount byapproximately 10%, in order to reduce expenses and conserve cash in thecurrent economic environment. We expect to record a charge of approximately $0.2million associated with this initiative in the second quarter of 2009.

 

**Liquidityand Capital Resources**

 

As of March 31, 2009,we had cash and cash equivalents of $30.8 million, restricted cash of $12.6million, stockholders’ equity of $55.2 million, and working capital of $46.6million, compared with cash and cash equivalents of $30.4 million, restrictedcash of $13.8 million, stockholders’ equity of $57.2 million, and workingcapital of $48.0 million as of December 31, 2008.  The decrease in restricted cash at March 31,2009, was related to performance bonds required for our Rural UtilitiesService, or RUS 397 contracts.

 

Netcash used in operating activities for the three months ended March 31,2009, was $0.9 million compared to $1.3 million during the same period ended2008.  The sum of our net loss andcertain non-cash expenses, such as stock-based compensation, depreciation andamortization, impairment of intangibles related to developed technology andcustomer relationships, accounts receivable reserves and inventory reservesresulted in an outflow of $1.7 million in the 2009 period, compared to anoutflow of $1.9 million in the 2008 period. The overall impact of change in certain operating assets and liabilitieson total operating cash flows resulted in a cash inflow of $0.8 million in the three monthsended March 31, 2009 compared to a cash inflow of $0.6 million inthe three months ended March 31, 2008.

 

Net cash provided byinvesting activities for the three months ended March 31, 2009, was $1.0million compared to $2.9 million used in investing activities, during the sameperiod ended March 31, 2008. Cash provided by investing activities for thethree months ended March 31, 2009, was primarily due to a decrease of $1.1million in restricted cash required for performance bonds in connection withour RUS contracts offset by $0.2 million for purchases of property andequipment.

 

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Net cash provided byfinancing activities for the three months ended March 31, 2009 was $0.4million compared to $60,000 for the same period in 2008.  Cash provided by financing activities for thethree months ended March 31, 2009, was mainly due to proceeds from thesale of common stock under the ESPP of $0.4 million, as compared to proceeds ofapproximately $64,000 related to the exercise of options, which was offset bythe payment of approximately $4,000 for capital lease obligations for the threemonths ended March 31, 2008.

 

**WorkingCapital**

 

Working capital decreased to$46.6 million as of March 31, 2009 compared to $48.0 million as of December 31,2008.

 

Our future liquidity andcapital requirements will depend on numerous factors, including the:

 

·                  collectabilityof accounts receivable;

 

·                  amount andtiming of revenue;

 

·                  extent to whichour existing and new products gain market acceptance;

 

·                  extent to whichfunds are restricted due to performance bonds required in connection with ourRUS contracts;

 

·                  cost and timingof product development efforts and the success of these development efforts;

 

·                  cost and timingof marketing and selling activities; and

 

·                  availability ofborrowing arrangements and the availability of other means of financing.

 

We believe that our cash andcash equivalents will be sufficient to finance our operations over the next 12months.  Although we believe these fundswill be sufficient to maintain and expand our operations in accordance with ourbusiness strategy, we may need additional funds in the future.  If we are unable to raise additionalfinancing when and if needed, we may be required to reduce certaindiscretionary spending, which could have a material adverse effect on our abilityto achieve our intended business objectives.

 

**ContractualObligations**

 

We lease our facilities andcertain assets under non-cancelable operating leases expiring through 2015,excluding various renewal options. We lease certain office equipment undercapital leases.

 

The following table summarizesour minimum purchase commitments to our contract manufacturers, our minimumcommitments under non-cancelable operating leases,our commitment under capitalleases, our commitment under fixed assets and licensing agreements as of March 31,2009 (in thousands):

 
| ** **                  | ** ** | **Payments Due By Period** | ** ** |
|-----------------------------|------------|-------------------------------------------|------------|
| ** **                  | ** ** | **Total**                                 | ** ** | **Less than  1 year** | ** ** | **1-3 years** | ** ** | **3-5 years** | ** ** | **More than  5 years** | ** ** |
| **Contractual Obligations** |       |                                      |       |   |   |   |   |   |   |   |   |
| Purchase commitments (1)    |       | $                                         | 7,858      |   | $ | 7,858 |   | $ | — |   | $ | — |   | $ | — |   |
| Operating leases            |       | $                                         | 7,969      |   | $ | 1,052 |   | $ | 4,407 |   | $ | 2,182 |   | $ | 328 |   |
| Capital leases              |       | $                                         | 67         |   | $ | 21 |   | $ | 46 |   | $ |    |   | $ | — |   |
| Licensing agreements        |       | $                                         | 240        |   | $ | 105 |   | $ | 135 |   | $ | — |   | $ | — |   |
|                             |            |                                           |            |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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(1)          Under the terms of our agreement with our contractmanufacturers, we issue purchase orders for the production of ourproducts.  We are required to placeorders in advance with our contract manufacturer to meet estimated salesdemands.  The agreement includes certainlead-time and cancellation provisions. Future amounts payable to the contract manufacturer will vary based onthe level of purchase requirements.

 

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*Off-BalanceSheet Arrangements*

 

As of March 31, 2009,we had no material off-balance sheet arrangements, other than operating leasesand certain purchase commitments described in the contractual obligations tablereferenced above.

 

*IndemnificationObligations*

 

We enter intoindemnification provisions under our agreements with other companies in ourordinary course of business, typically with our contractors, customers, andlandlords.  In connection with our 2006public offering, we also agreed to indemnify the underwriters in the offeringand certain stockholders who sold shares as part of the offering with respectto certain liabilities arising from the offering.  Under these provisions, we generallyindemnify and hold harmless the indemnified party for losses suffered orincurred by the indemnified party as a result of our activities or, in some cases,as a result of the indemnified party’s activities under the agreement.  These indemnification provisions generallysurvive termination of the underlying agreement.  The maximum potential amount of futurepayments we could be required to make under these indemnification provisions isgenerally unlimited.  As of March 31,2009, we did not have any material liabilityrelating to the defense of lawsuits or settlement of claims relatedto these indemnification agreements. During fiscal 2008, wereimbursed Norwest Venture Partners for indemnification expenses in the amountof $80,166.  During the quarter ended March 31,2009, we reimbursed U.S. Venture Partners for indemnification expenses incurredin 2008 in the amount of $192,166.

 

Recent Accounting Pronouncements

 

In April 2009, the FASB issued three related Staff Positions: (i) FSP157-4, Determining Fair Value When the Volume and Level of Activity for theAsset or Liability have Significantly Decreased and Identifying TransactionsThat Are Not Orderly, or FSP 157-4, (ii) SFAS 115-2 and SFAS 124-2,Recognition and Presentation of Other-Than-Temporary Impairments, or FSP 115-2and FSP 124-2, and (iii) SFAS 107-1 and APB 28-1, Interim Disclosuresabout Fair Value of Financial Instruments, or FSP 107 and APB 28-1, which willbe effective for interim and annual periods ending after June 15, 2009.FSP 157-4 provides guidance on how to determine the fair value of assets andliabilities under SFAS 157 in the current economic environment and reemphasizesthat the objective of a fair value measurement remains an exit price. If wewere to conclude that there has been a significant decrease in the volume andlevel of activity of the asset or liability in relation to normal marketactivities, quoted market values may not be representative of fair value and wemay conclude that a change in valuation technique or the use of multiplevaluation techniques may be appropriate. FSP 115-2 and FSP 124-2 modify therequirements for recognizing other-than-temporarily impaired debt securitiesand revise the existing impairment model for such securities, by modifying thecurrent intent and ability indicator in determining whether a debt security isother-than-temporarily impaired. FSP 107 and APB 28-1 enhance the disclosure ofinstruments under the scope of SFAS 157 for both interim and annual periods. Wedo not believe that the above staff positions will have a material impact onour financial position, results of operations, and cash flows.

 

In April 2009, the FASB issued FSP No. 141R-1 Accounting forAssets Acquired and Liabilities Assumed in a Business Combination That Arisefrom Contingencies, or FSP 141R-1. FSP 141R-1 amends the provisions inStatement 141R for the initial recognition and measurement, subsequentmeasurement and accounting, and disclosures for assets and liabilities arisingfrom contingencies in business combinations. The FSP eliminates the distinctionbetween contractual and non-contractual contingencies, including the initialrecognition and measurement criteria in Statement 141R and instead carriesforward most of the provisions in SFAS 141 for acquired contingencies. FSP141R-1 is effective for contingent assets and contingent liabilities acquiredin business combinations for which the acquisition date is on or after thebeginning of the first annual reporting period beginning on or after December 15,2008. We believe the adoption of SFAS 141R will have an impact onaccounting for business combinations once adopted, but the effect on us willdepend upon our level of acquisition activity.

 

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In March 2009, FASB unanimously voted for the FASB AccountingStandards Codification (the “Codification”) to be effective beginning on July 1,2009. Other than resolving certain minor inconsistencies in current UnitedStates Generally Accepted Accounting Principles (“GAAP”), the Codification isnot supposed to change GAAP, but is intended to make it easier to find andresearch GAAP applicable to particular transactions or specific accountingissues. The Codification is a new structure which takes accountingpronouncements and organizes them by approximately ninety accounting topics.Once approved, it will become the source of authoritative U.S. GAAP. Allguidance included in the Codification will be considered authoritative at thattime, even guidance that comes from what is currently deemed to be anon-authoritative section of a standard. Once the Codification becomeseffective, all non-grandfathered, non-SEC accounting literature not included inthe Codification will become non-authoritative.

 

In December 2007, the FASB issued Statement of FinancialAccounting Standards No. 160, “Noncontrolling Interests in ConsolidatedFinancial Statements, an amendment of ARB No. 51” (“SFAS 160”).SFAS 160 will change the accounting and reporting for minority interestswhich will be recharacterized as noncontrolling interests and classified as acomponent of equity. SFAS 160 is effective for fiscal years beginning onor after December 15, 2008. SFAS 160 requires retroactive adoption ofthe presentation and disclosure requirements for existing minority interests.We do not have any non controlling interests in our consolidated financialstatements and hence it does not have an impact on our financial position,results of operations, and cash flows.

 

In December 2007, the FASB issued Statement of FinancialAccounting Standards No. 141 (revised 2007), “Business Combinations” (“SFAS 141R”).SFAS 141R changes accounting for acquisitions that close beginning in2009. More transactions and events will qualify as business combinations andwill be accounted for at fair value under the new standard. SFAS 141Rpromotes greater use of fair values in financial reporting. Some of the changeswill introduce more volatility into earnings. SFAS 141R is effective forfiscal years beginning on or after December 15, 2008. The adoption ofSFAS 141R will have an impact on accounting for business combinations onceadopted, but the effect on us will depend upon our level of acquisitionactivity.

 

In May 2007, the FASB issued FSP No. FIN 48-1 “Definitionof Settlement in FASB Interpretation No. 48,” (FSP FIN 48-1 amendsFIN 48 to provide guidance on how an entity should determine whether a taxprovision is effectively settled for the purpose of recognizing previouslyunrecognized tax benefits. The term “effectively settled” replaces the term “ultimatelysettled” when used to describe recognition, and the terms “settlement” or “settled”replace the terms “ultimate settlement” or “ultimately settled” when used todescribe measurement of a tax position under FIN 48. FSP FIN 48-1clarifies that a tax position can be effectively settled upon the completion ofan examination by a taxing authority without being legally extinguished. Fortax positions considered effectively settled, an entity would recognize thefull amount of tax benefit, even if the tax position is not considered morelikely than not to be sustained based solely on the basis of its technicalmerits and the statue of limitations remains open. We do not anticipate thatthe adoption of FSP FIN 48-1 will have a material effect on our results ofoperations or financial position.

 

In April 2008, the FASB issued FASB Staff Position (“FSP”) No. FAS 142-3,“Determination of the Useful Life of Intangible Assets,” (“FSP 142-3”). FSP142-3 amends the factors that should be considered in developing renewal orextension assumptions used to determine the useful life of a recognizedintangible asset under SFAS No. 142, “Goodwill and Other Intangible Assets”and also requires expanded disclosure related to the determination ofintangible asset useful lives. FSP 142-3 is effective for fiscal years beginningafter December 15, 2008. Early adoption is prohibited. The adoption ofFAS142-3 did not have a material impact on our consolidated financialstatements.

 

In May 2008, the FASB issued FSP APB 14-1, “Accounting forConvertible Debt Instruments That May Be Settled in Cash upon Conversion(Including Partial Cash Settlement)” (“FSP APB 14-1”). FSP APB 14-1requires issuers of convertible debt instruments that may be settled in cashupon conversion to account separately for the liability and equity componentsin a manner that will reflect the entity’s nonconvertible debt borrowing ratewhen interest cost is recognized in subsequent periods. FSP APB 14-1 iseffective for financial statements issued for fiscal years beginning after December 15,2008, and interim periods within those fiscal years. The adoption of thisstandard did not have a material effect on our results of operations andfinancial position.

 

In May 2008, the FASB issued Statement of Financial AccountingStandards No. 162, “The Hierarchy of Generally Accepted AccountingPrinciples” (“SFAS 162”). SFAS 162 identifies the sources ofaccounting principles and the framework for selecting the principles used inthe preparation of financial statements of nongovernmental entities that arepresented in conformity with generally accepted accounting principles.SFAS 162 will become effective 60 days following the SEC’s approvalof the Public Company Accounting Oversight Board amendments to AU Section 411,“The Meaning of Present Fairly in Conformity With Generally Accepted AccountingPrinciples.” We have not yet adopted SFAS 162, but we do not expect theadoption of SFAS 162 will have a material impact on our financialposition, results of operations, and cash flows.

 

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**ITEM 3.****                       ****QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK**

 

Because our portfolio ofcash equivalents is of a short-term nature, we are not subject to significantmarket price risk related to investments. However, our interest income is sensitive to changes in the generallevel of taxable and short-term U.S. interest rates.  Our exposure to market risk due to changes inthe general level of United States interest rates relates primarily to our cashequivalents.  We generally invest oursurplus cash balances in money-market funds with original or remainingcontractual maturities of less than 90 days. The primary objective of our investment activities is the preservationof principal while minimizing risk.  Wedo not hold financial instruments for trading or speculative purposes.  We do not use any derivatives or similarinstruments to manage our interest rate risk.

 

**ITEM 4.****                       ****CONTROLS AND PROCEDURES**

 

***(a)   Evaluation of DisclosureControls and Procedures***

 

Under the supervision and with the participation of our management,including our Chief Executive Officer and Chief Financial Officer, we conductedan evaluation of the effectiveness of the design and operation of ourdisclosure controls and procedures, as defined in Rules 13a-15(e) and15d-15(e) under the Exchange Act, as of March 31, 2009, which werefer to as the Evaluation Date or the end of the period covered by thisQuarterly Report on Form 10-Q.

 

The purpose of this evaluation was to determine whether as of theEvaluation Date our disclosure controls and procedures were effective toprovide reasonable assurance that the information we are required to disclosein our filings with the Securities and Exchange Commission, (i) isrecorded, processed, summarized and reported within the time periods specifiedin the SEC’s rules and forms and (ii) accumulated and communicated toour management, including our Chief Executive Officer and Chief FinancialOfficer, as appropriate to allow timely decisions regarding requireddisclosure.

 

Based on their evaluation, our Chief Executive Officer and ChiefFinancial Officer have concluded that as of March 31, 2009, the samematerial weakness that was previously reported as of December 31, 2007continued to exist with respect to revenue recognition policies and procedures.As a result, our Chief Executive Officer and Chief Financial Officer haveconcluded that our disclosure controls and procedures were not effective as ofthe Evaluation Date.

 

An internal control deficiency exists when the design or operation of acontrol does not allow management or employees, in the normal course ofperforming their assigned functions, to prevent or detect misstatements on atimely basis. A “material weakness” is a deficiency, or a combination ofdeficiencies in internal control over financial reporting, such that there is areasonable possibility that a material misstatement of the company’s annual orinterim financial statements will not be prevented or detected on a timelybasis. A “significant deficiency” is a deficiency, or a combination ofdeficiencies in internal control over financial reporting, such that there is areasonable possibility that a more than inconsequential misstatement of thecompany’s annual or interim financial statements will not be prevented ordetected on a timely basis. A significant deficiency is less severe than amaterial weakness, yet important enough to merit attention by management.

 

In March 2007, our audit committee initiated an internal review ofour revenue recognition practices. On September 12, 2007, we announcedthat our audit committee had identified errors in our revenue recognitionpractices and that our board of directors, based on the recommendation of ouraudit committee, had concluded that we should restate our financial statementsfor fiscal years 2004 and 2005, the corresponding interim quarterly periods offiscal 2004 and fiscal 2005, and the first, second, and third quarters offiscal 2006. Our board of directors also concluded that our previously filedfinancial statements for those periods should not be relied on. On October 16,2007, we announced that our audit committee had concluded its investigation,and we announced the final restated financial information.

 

Our audit committee concluded that the restatement was required becauseof errors in our accounting for (i) commitments to certain customers inconnection with sales for features or deliverables that were not available atthe time revenue was originally recognized, including commitments toprospectively provide free product, software, training, and installationservices, for which we prematurely recognized approximately $9.3 millionin revenue from fiscal 2004 to fiscal 2006; (ii) sales to value-addedresellers where the resellers did not have the ability to pay us for thesesales independent of payment to them by the end-user, for which we prematurelyrecognized approximately $20.2 million in revenue from fiscal 2004 tofiscal 2006; and (iii) for certain quarters ending on weekends, our use ofa shipping vendor who picked up product for subsequent delivery to anothershipping company where the terms and conditions of the shipments did notappropriately transfer title or risk of loss at the time of shipment, for whichwe prematurely recognized approximately $2.3 million in revenue fromfiscal 2004 to fiscal 2006. In addition, we prematurely recognizedapproximately $1.1 million of revenue from fiscal 2004 through fiscal 2006relating principally to errors in accounting for software and softwaremaintenance, customer credits, and undelivered free product.

 

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Our audit committee determined that the foregoing errors resulted fromdeficiencies in our internal controls, in particular resulting from internalcommunication failures between our finance and sales departments, a lack ofclear understanding by, and communication to, sales personnel of technicalaccounting rules, understaffed finance functions, and on occasion, failure offinance personnel to apply technical revenue recognition rules correctly.As part of its internal control deficiencies letter dated October 15,2007, our current independent registered public accounting firm also identifieda material weakness relating to revenue recognition. Our independent registeredpublic accounting firm noted that we did not have policies and procedures in placeto ensure that modifications to, or side agreements associated with, ourstandard terms of contract were properly documented and approved. Ourindependent registered public accounting firm also cited a lack ofunderstanding of the accounting consequences of modifications to standard termsby certain sales employees and a lack of communication among our sales,engineering, and finance departments to ensure that all sales transactions areproperly tracked, documented, approved, and recorded.

 

In their October 2007 letter, our independent registered publicaccounting firm identified additional control deficiencies that it determinedto be significant deficiencies but that it did not deem to be materialweaknesses. In particular, it identified a significant deficiency relating tosegregation of duties, noting among other things that in certain instancesjournal entries and account reconciliations were approved by the preparer ofthe entry or reconciliation. Our independent registered public accounting firmalso noted a significant deficiency relating to post-closing adjusting journalentries and recommended that we reassess the timeline of our financialstatement process to ensure that we have reasonable time to conclude a thoroughfinancial statement closing process. Finally, our independent registered publicaccounting firm identified significant deficiencies relating to recordingcertain purchase transactions, where parts were ordered and accepted by ourengineering department, without approval or involvement of our financedepartment, and where fixed assets were not properly classified fordepreciation purposes.

 

In connection with the audit of our consolidated financial statementsfor the year ended December 31, 2007 and the effectiveness of our internalcontrol over financial reporting as of December 31, 2007, our independentregistered public accounting firm identified a material weakness and somesignificant deficiencies in our internal control over financial reporting in aletter dated March 10, 2008. Specifically, our independent registeredpublic accounting firm noted a continuing material weakness relating to revenuerecognition and our policies and procedures to ensure that modifications to, orside agreements associated with, our standard terms of contract were properlyapproved, documented, tracked and recorded.

 

In connection with the preparation and related audit of our financialstatements for the year ended December 31, 2008, our management againconcluded that a material weakness existed with respect to revenue recognitionat December 31, 2008. In addition, management identified significantdeficiencies relating to (i) approval processes for credit memos andspecial pricing terms and (ii) segregation of duties in our ordermanagement group. Management noted that each of the audit committee’s 2007recommendations had been completed but determined that a number of theseremediation efforts had not been in place or tested for a sufficient period toconclude that they were effective. In particular, we implemented standardizedterms and conditions for customer quotes, contracts, and invoices in the fourthquarter of fiscal 2008, but only a small portion of our revenues in 2008 weregenerated in transactions entered under these standardized terms. In addition,management concluded that the controls implemented to date have largely beenfocused on error detection and that we need to implement additionalpreventative controls designed to address potential errors before they occur.

 

Any failure on our part to remedy identified control deficiencies, orany additional delays or errors in our financial reporting, whether or notresulting from the identified material weakness relating to revenue recognitionor any significant deficiencies, would have a material adverse effect on ourbusiness, results of operations, or financial condition and could have asubstantial adverse impact on the trading price of our common stock.

 

***B. Changes in Internal Control OverFinancial Reporting***

 

OnSeptember 28, 2007, our audit committee presented the findings andrecommendations of its internal investigation to our board of directors,including a proposed remediation plan regarding internal control over financialreporting. At that time, our board of directors adopted the audit committee’sremediation plan. In the fourth quarter of 2008, we completedimplementation of all initial audit committee recommendations.

 

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Our audit committee’s remediation plan consisted of the followingmodifications and improvements in our internal controls relating to the salesand revenue- recognition transaction cycle.

 
|        | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          | ** ** | **Implemented  as of  December 31,  2008** |
|--------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------|
| · |       | adjust  our reporting structure so that finance has direct oversight of sales  administration and the sales proposal generation management group;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | reorganize  our variable compensation plan to ensure that sales personnel are not  incentivized to attempt to influence the timing of revenue recognition;                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | retain  a senior revenue recognition specialist who will report directly to our chief  financial officer and will possess the appropriate level of experience,  authority, and seniority to independently serve as the liaison between all  levels of corporate functions and finance. This individual should have some  degree of managerial oversight of other “liaison” areas (e.g., order  entry personnel, sales administration, and sales proposals generation) and be  responsible for the review and reconciliation of terms given to a customer in  the bid/quote process as well as in the final contract; |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | the  revenue recognition specialist, or employees acting under his or her  supervision, should review all documentation relating to a transaction,  including purchase orders, special pricing approval forms, customer quotes,  letters of intent, emails, etc. to determine whether any of the terms will  result in the deferral of revenue; and                                                                                                                                                                                                                                                                                 |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | a  revenue recognition checklist should accompany the financial package for each  transaction.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | engage  an outsourced internal audit group to review all significant revenue  transactions each quarter to ensure that transactions have been recorded  appropriately, to monitor the status of the remediation of control structure,  and report to the audit committee the progress achieved;                                                                                                                                                                                                                                                                                                                                     |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  formal training, which would include a signed acknowledgement of all  attendees certifying that they have attended and understood the topics  covered, from all finance, executive, sales, and sales administration  personnel, to ensure they understand that certain terms impact revenue  recognition, as well as understand how to document and receive approval for  such terms, as well as report them to finance;                                                                                                                                                                                                 |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | institute  a formal communication process among marketing, engineering, and finance to  ensure that all functions understand that any changes have potential  accounting implications and to ensure that finance is appropriately advised  as to the impact on existing and future transactions;                                                                                                                                                                                                                                                                                                                                    |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  policies and procedures that delineate clear roles, responsibilities, and  authorization levels for all positions defined as “key” to the revenue  recognition transaction cycle;                                                                                                                                                                                                                                                                                                                                                                                                                              |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | compliance  with the stated order addendum process, to ensure that all terms agreed upon  with a customer following the issuance of the customer quote or purchase  order have been captured and provided to finance;                                                                                                                                                                                                                                                                                                                                                                                                               |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  controls required to ensure that no items are shipped or provided to the  customer without being entered as separate line items in our systems;                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  controls required to ensure that all requests for price responses, contract  closeout, acceptance documentation, and other delivery information is  provided to and reviewed by the finance department and is received prior to  recording of revenue;                                                                                                                                                                                                                                                                                                                                                                   |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  procedures to ensure that credit checks are performed and the decision-making  process as to the credit limit is documented and maintained.                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  a policies and procedure document that will be provided to all sales and  sales administration personnel, including an annual sign off that they have  received, read, understood, and complied with the materials, that will ensure  that all terms related to any transaction are evidenced in the sales quotes  and purchase orders, and that all transaction documentation has been provided  to the finance department prior to the recording of revenue;                                                                                                                                                           |       | P                                               |
|   |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |       |                                            |
| · |       | implement  a policies and procedure document that will be provided to all sales and  sales administration personnel, including an annual sign off that they have  received, read, understood, and complied with the materials, that will ensure  that all terms related to any transaction are evidenced in the sales quotes  and purchase orders, and that all transaction documentation has been provided  to the finance department prior to the recording of revenue. Such policies  and procedures may include:                                                                                                                |       | P                                               |

 

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| ** ** | ** ** | ** **                                                                                                                                                                                                                                                                                               | ** ** | **Implemented  as of  December 31,  2008** |
|------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------|
| ·     |       | standardize  language on each customer’s quote and invoice, as well as on the standard terms  and conditions, stating that only those terms listed by the customer on its  purchase order will be deemed part of the final agreement; and                                                           |       | P                                               |
|       |       |                                                                                                                                                                                                                                                                                                     |       |                                            |
| ·     |       | establish  a central, virtual repository for all documentation relating to a  transaction, including quotes, emails, letters of intent, volume pricing  agreements, special pricing approval forms, and all other transaction  documents, which are uploaded by sales and sales administration personnel |       | P                                               |

 

Although we recently completed all remediation steps specificallyrecommended by our audit committee in 2007, management continues to test thenewly implemented controls and has identified additional controls andprocedures for implementation in light of our continuing material weakness. Inparticular, we plan to implement further remedial actions, which have beenapproved by our audit committee, related to the 2008 material weakness,specifically:

 

·                  Monitor and test prior internal controlremediation;

 

·                  Implement additional controls focused onprevention (in contrast to the detection focus of previously implementedremedial controls); and

 

·                  Review and assess current sales process fromthe time of quote to the collection of receivables in an effort to process  orders in a more controlled environment.

 

In addition, in the firstquarter of 2009, we implemented control changes in our order management groupto address identified control deficiencies relating to segregation ofduties.  Specifically, we limitedindividual system access in an effort to ensure that no single individual hadthe ability to book, invoice, and ship orders.

 

**PART II—OTHER INFORMATION**

 

**ITEM 1.LEGAL PROCEEDINGS**

 

**2007 Class Action Litigation**

 

On April 26, 2007 and May 16, 2007, two putative class actioncomplaints were filed in the United States District Court for the CentralDistrict of California against us and certain of our officers. The complaintsallege that the defendants violated sections 10(b) and 20(a) ofthe Securities Exchange Act of 1934, or the Exchange Act, and SEC Rule 10b-5promulgated thereunder by making false and misleading statements and omissionsrelating to our financial statements and internal controls with respect torevenue recognition. The complaints seek, on behalf of persons who purchasedour common stock during the period from May 2, 2006 to April 17,2007, damages of an unspecified amount.

 

On July 30, 2007, Judge Christina A. Snyder consolidated theseactions into a single action, appointed NECA-IBEW Pension Fund (The DecaturPlan) as lead plaintiff, and approved its selection of lead counsel. On November 16,2007, the lead plaintiff filed a consolidated complaint. This consolidatedcomplaint added as defendants certain of our current and former directors andofficers, our current and former outside auditors, the lead underwriter of oursecondary public offering in November 2006, and two venture capital firmswho were early investors in us. The consolidated complaint alleged thatdefendants violated sections 10(b), 20(a) and 20A of the Exchange Actand SEC Rule 10b-5 promulgated thereunder, as well as sections 11 and15 of the Securities Act of 1933, or Securities Act, by making false andmisleading statements and omissions relating to our financial statements andinternal controls with respect to revenue recognition that requiredrestatement. The consolidated complaint seeks, on behalf of persons whopurchased, Occam’s common stock during the period from April 29, 2004 to October 15,2007, damages of an unspecified amount.

 

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On January 25, 2008, defendants filed motions to dismiss theconsolidated complaint. On July 1, 2008, Judge Snyder issued an ordergranting in part and denying in part defendants’ motions. This order dismissedall claims against certain of our current and former directors, the 20A claimin its entirety, the section 10(b) claim against the auditors andventure capital firms, and the section 11 claims against the venturecapital firms. On July 16, 2008, lead plaintiff filed an amended complaintto conform to the Court’s July 1, 2008 order. Defendants answered thisamended complaint on August 29, 2008. We believe that we have meritoriousdefenses in this action, and intend to defend ourselves vigorously. Failure byus to obtain a favorable resolution of the claims set forth in the consolidatedcomplaint could have a material adverse effect on its business, results ofoperations and financial condition. Currently, the amount of such materialadverse effect cannot be reasonably estimated.

 

**IPO Allocation Litigation**

 

In June 2001, three putative stockholder class action lawsuitswere filed against Accelerated Networks, certain of its then officers anddirectors and several investment banks that were underwriters of AcceleratedNetworks’ initial public offering. The cases, which have since beenconsolidated, were filed in the United States District Court for the SouthernDistrict of New York. The Court appointed a lead plaintiff on April 16,2002, and plaintiffs filed a Consolidated Amended Class Action Complaint(the “Complaint”) on April 19, 2002. The Complaint was filed on behalf ofinvestors who purchased Accelerated Networks’ stock between June 22, 2000and December 6, 2000 and alleged violations of Sections 11 and 15 ofthe 1933 Act and Sections 10(b) and 20(a) and Rule 10b-5 ofthe 1934 Act against one or both of Accelerated Networks and the individualdefendants. The claims were based on allegations that the underwriterdefendants agreed to allocate stock in Accelerated Networks’ initial publicoffering to certain investors in exchange for excessive and undisclosedcommissions and agreements by those investors to make additional purchases inthe aftermarket at pre-determined prices. Plaintiffs alleged that theprospectus for Accelerated Networks’ initial public offering was false andmisleading in violation of the securities laws because it did not disclosethese arrangements. These lawsuits are part of the massive “IPO allocation”litigation involving the conduct of underwriters in allocating shares ofsuccessful initial public offerings.

 

Webelieve that over three hundred other companies have been named in more thanone thousand similar lawsuits that have been filed by some of the sameplaintiffs’ law firms. In October 2002, the plaintiffs voluntarilydismissed the individual defendants without prejudice. On February 1, 2003a motion to dismiss filed by the issuer defendants was heard and the courtdismissed the 10(b), 20(a) and rule 10b-5 claims against Occam. On October 13,2004, the Court certified a class in six of the approximately 300 other nearlyidentical actions (the “focus” cases) and noted that the decision was intendedto provide guidance to all parties regarding class certification in theremaining cases. The Underwriter Defendants appealed the decision and theSecond Circuit Court of Appeals vacated the district court’s decision grantingclass certification in those six cases on December 5, 2006. Plaintiffsfiled a motion for rehearing. On April 6, 2007, the Second Circuit deniedthe petition, but noted that Plaintiffs could ask the District Court to certifya more narrow class than the one that was rejected. On October 3, 2007Plaintiff has filed a motion to certify a new class and a second amendedcomplaint based on the Second Circuit Appeals Court decision. An oppositionbrief was filed by both Underwriter Defendants and the Issuer Defendants on December 21,2007 and a reply brief was filed on January 28, 2008. On March 28,2008, the plaintiffs filed an amended reply brief in support of their motion tocertify the class of plaintiffs. The Underwriter Defendants and the issuerDefendants had until August 31, 2008 to file an answer to the amendedcomplaint. The Court has not ruled on the motion. The insurers, theunderwriters and the Plaintiffs subsequently agreed to global mediationin the interest of trying to resolve this case without the further need forlitigation.  The mediation commenced inlate June of 2008 and resulted in current settlement negotiations wherebythe parties agreed to a settlement.  Thesettlement is currently being reviewed by the Court.

 

Prior to the Second Circuit’s December 5, 2006 ruling, we agreed,together with over three hundred other companies similarly situated, to settlewith the Plaintiffs. A settlement agreement and related agreements weresubmitted to the Court for approval. The settlement would have provided, amongother things, a release of the Company and of the individual defendants for theconduct alleged to be wrongful in the Complaint in exchange for a guaranteefrom the Company’s insurers regarding recovery from the underwriter defendantsand other consideration from the Company regarding its underwriters. In lightof the Second Circuit opinion, liaison counsel for the issuers informed theDistrict Court that the settlement cannot be approved because the definedsettlement class, like the litigation class, cannot be certified. We cannotpredict whether we will be able to renegotiate a settlement that complies withthe Second Circuit’s mandate.

 

Due to the inherent uncertainties of litigation, we cannot accuratelypredict the ultimate outcome of the matter. We have not recorded any accrualrelated to this proposed settlement because Occam expects any settlementamounts to be covered by its insurance policies.

 

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**IPO Short Swing Profits Litigation**

 

In late 2007, we received a letter from Vanessa Simmonds, a putativeshareholder, demanding that we investigate and prosecute a claim for allegedshort-swing trading in violation of Section 16(b) of the SecuritiesExchange Act of 1934, 15 U.S.C. § 78p(b), by the underwriter of ourinitial public offering (“IPO”) and certain unidentified directors, officersand shareholders of us (then known as Accelerated Networks). We evaluated thedemand and declined to prosecute the claim. On October 12, 2007, theputative shareholder commenced a civil lawsuit in the U.S. District Court forthe Western District of Washington against Credit Suisse Group, the leadunderwriter of our IPO, alleging violations of Section 16(b). Thecomplaint alleges that the combined number of shares of our common stockbeneficially owned by the lead underwriter and certain unnamed officers,directors, and principal shareholders exceeded ten percent of its outstandingcommon stock from the date of Occam’s IPO on June 23, 2000, through atleast June 22, 2001. It further alleges that those entities andindividuals were thus subject to the reporting requirements of Section 16(a) andthe short-swing trading prohibition of Section 16(b), and failed to complywith those provisions. The complaint seeks to recover from the lead underwriterany “short-swing profits” obtained by it in violation of Section 16(b). Wewere named as a nominal defendant in the action, but have no liability for theasserted claims. None of our directors or officers of Occam are named asdefendants in this action.

 

On October 29, 2007, the case was reassigned to Judge James L.Robart along with fifty-four other Section 16(b) cases seekingrecovery of short-swing profits from underwriters in connection with variousIPOs. The Underwriters and Issuers have filed a motion to dismiss the case andreply briefs have been filed. The Court heard oral argument on January 19,2009 from all parties. On March 12, 2009, the Court dismissed the 16 (b) complaintagainst the issuer defendants including Occam on both jurisdictional andstatute of limitation grounds. On March 31, 2009, the Plaintiffs filed aNotice of Appeal. Currently all pleadings relative to the appeal must be filedby August 31, 2009. Oral argument will be heard thereafter.

 

Due to the inherent uncertainties of threatened litigation, we cannotaccurately predict the ultimate outcome of the matter, but we believe that theoutcome of this litigation will not have a material adverse impact on ourconsolidated financial position and results of operations. We have not recordedany accruals related to the demand letters or Section 16(b) litigationbecause we expect any resulting resolution to be covered by our insurancepolicies.

 

**Other Matters**

 

From time to time, we are subject to threats of litigation or actuallitigation in the ordinary course of business, some of which may be material.We believe that, except as described above, there are no currently pendingmatters that, if determined adversely to us, would have a material effect onour business or that would not be covered by our existing liability insurancemaintained by us.

 

**ITEM1A.  RISK FACTORS**

 

This Quarterly Report on Form 10-Q,or Form 10-Q, including any information incorporated by reference herein,contains forward-looking statements within the meaning of Section 27A ofthe Securities Act of 1933, as amended, referred to as the Securities Act, and Section 21Eof the Securities Exchange Act of 1934, as amended, referred to as the ExchangeAct.  In some cases, you can identifyforward-looking statements by terms such as “may,” “will,” “should,” “expect,” “plan,”“intend,” “forecast,” “anticipate,” “believe,” “estimate,” “predict,” “potential,”“continue” or the negative of these terms or other comparable terminology.  The forward-looking statements contained inthis Form 10-Q involve known and unknown risks, uncertainties andsituations that may cause our or our industry’s actual results, level ofactivity, performance or achievements to be materially different from anyfuture results, levels of activity, performance or achievements expressed orimplied by these statements.  Thesefactors include those listed below in this Item 1A and those discussedelsewhere in this Form 10-Q.  Weencourage investors to review these factors carefully.  We may from time to time make additionalwritten and oral forward-looking statements, including statements contained inour filings with the SEC.  However, we donot undertake to update any forward-looking statement that may be made fromtime to time by or on behalf of us.

 

Before you invest in oursecurities, you should be aware that our business faces numerous financial andmarket risks, including those described below, as well as general economic andbusiness risks.  The following discussionprovides information concerning the material risks and uncertainties that wehave identified and believe may adversely affect our business, our financialcondition and our results of operations. Before you decide whether to invest in our securities, you shouldcarefully consider these risks and uncertainties, together with all of theother information included in this Quarterly Report on Form 10-Q ourAnnual Report on Form 10-K for the year ended December 31, 2008 andin our other public filings.

 

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**Risks Related to Current Economic Environment and Our Future Revenues**

*** ***

***Our business issubstantially dependent on the capital spending patterns of telecom operatorsand has recently been adversely affected by reductions and delays in capitalspending by our customers.  Any continuedreductions or delays in customer orders in response to macroeconomic conditionsor otherwise, would adversely affect our business, operating results, andfinancial condition.***

 

Demandfor our products depends on the magnitude and timing of capital spending bytelecom service providers as they construct, expand and upgrade their networks.  In the fourth quarter of 2008, we identifieda weakening in new order activity that has continued into 2009.  We believe this weakening relates toreductions in capital expenditures and capital equipment investment budgetsresulting from the worldwide financial crisis and economic downturn.   In addition, we believe that many of ourcustomers, particularly those that participate in government fundinginitiatives such as the Department of Agriculture’s Rural Utility Serviceprogram, may be delaying investment and purchase activity pending theiranalysis of the availability of funding under recently announced governmenteconomic stimulus programs.  Continuedreductions, delays, or cancellations in order activity by our customers wouldbe expected to adversely affect our future revenues by reducing the revenue werecognize in any quarter from orders booked and shipped in that quarter and byreducing the amount of deferred revenues that may become recognizable in futureperiods upon satisfaction of revenue recognition criteria.

 

Inaddition to the impact of macroeconomic factors, we believe capitalexpenditures among IOCs have also been adversely affected as our customersconsider their investment and capital expenditure decisions in light of theindustry transition from copper wire to fiber.

 

 

Other factorsaffecting the capital spending patterns of telecom service providers include the following:

 

·                  competitive pressures, including pricingpressures;

 

·                  consumer demand for new services;

 

·                  an emphasis on generating sales fromservices delivered over existing networks instead of new network constructionor upgrades;

 

·                  the timing of annual budget approvals;

 

·                  evolving industry standards and networkarchitectures;

 

·                  free cash flow and access to external sourcesof capital; and

 

·                  completion of major network upgrades.

 

Changesin government funding programs can also affect capital expenditures byIOCs.  Because many of our customers areIOCs, their revenues are particularly dependent upon intercarrier payments(primarily interstate and intrastate access charges) and federal and stateuniversal service subsidies.  The FederalCommunications Commission, or FCC, and some states are considering changes toboth intercarrier payments and universal service subsidies, and such changescould reduce IOC revenues, which would be expected to have an adverse impact oncapital spending budgets.  Furthermore,many IOCs use government supported loan programs or grants to finance capitalspending.  Changes to those programs,such as the Department of Agriculture’s Rural Utilities Service loan program,could reduce the ability of IOCs to access capital.  Any decision by telecom service providers toreduce capital expenditures, whether caused by the economic downturn, changes ingovernment regulations and subsidies, or other reasons, would have a materialadverse effect on our business, consolidated financial condition and results ofoperations.

 

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***Our focus onindependent telephone operating companies limits our sales volume withindividual customers and makes our future operating results difficult topredict.***

 

Wecurrently focus our sales efforts on the independent telephone operatingcompanies, or IOCs, in North America. These customers generally operate relatively small networks with limitedcapital expenditure budgets. Accordingly, we believe the total potential sales volume for ourproducts at any individual IOC is limited, and we must identify and sellproducts to new IOC customers each quarter to continue to increase oursales.  In addition, the spendingpatterns of many IOCs are characterized by small and sporadic purchases.  Moreover, because our sales to IOCs arepredominantly based on purchase orders rather than long-term contracts, ourcustomers may stop purchasing equipment from us with little advance notice.  As a result, we have limited backlog, ourfuture operating results are difficult to predict and we will likely continueto have limited visibility into future operating results.

 

***We have hadlimited experience selling to larger telecommunication companies, and ourability to recognize revenue, if any, from contracts with these companies maybe difficult to predict.***

 

Inearly 2008, we announced that we had been selected as the lead access equipmentprovider for a substantial broadband upgrade by Fairpoint Communications, Inc.in its network in Vermont, New Hampshire, and Maine.  Fairpoint recently acquired these networksthrough its acquisitions of certain assets of Verizon Communications, Inc.  Fairpoint represented our first customer whois considered Tier 1 based on the number of telephone lines serviced.  We have limited experience selling orservicing Tier 1 customers, and our ability to recognize substantial revenuefrom the Fairpoint relationship or any other relationships we may establishwith Tier 1 customers will depend on several factors, including, among others,the timing of orders and the terms and conditions of the orders, which canaffect our ability to satisfy revenue recognition criteria.  We cannot currently predict with any accuracythe timing of orders from Fairpoint, and any delays or termination of Fairpoint’santicipated upgrade of its northern New England network could have a materialadverse effect on our future revenues and operating results.

 

***Fluctuations inour quarterly and annual operating results may adversely affect our businessand prospects.***

 

Anumber of factors, many of which are outside our control, may cause orcontribute to significant fluctuations in our quarterly and annual operatingresults.  These fluctuations may makefinancial planning and forecasting more difficult.  In addition, these fluctuations may result inunanticipated decreases in our available cash, which could limit our growth anddelay implementation of our expansion plans. Factors that may cause or contribute to fluctuations in our operating resultsinclude:

 

·                  fluctuations in demand for our products,including the timing of decisions by our target customers to upgrade theirnetworks and deploy our products;

 

·                  delays in customer orders as IOCsevaluate and consider their capital expenditures and investments in light ofthe industry transition from copper wire to fiber;

 

·                  increases in warranty accruals and othercosts associated with remedying any performance problems relating to ourproducts;

 

·                  seasonal reductions in field work duringthe winter months and the impact of annual budgeting cycles;

 

·                  the size and timing of orders we receiveand products we ship during a given period;

 

·                  delays in recognizing revenue underapplicable revenue recognition rules, particularly from government funded contracts,as a result of additional commitments we may be required to make to securepurchase orders, or with respect to sales to value added resellers where wecannot establish based on our credit analysis that collectability is reasonablyassured;

 

·                  introductions or enhancements ofproducts, services and technologies by us or our competitors, and marketacceptance of these new or enhanced products, services and technologies;

 

·                  the amount and timing of our operatingcosts, including sales, engineering and manufacturing costs and capitalexpenditures; and

 

·                  quarter-to-quarter variations in ouroperating margins resulting from changes in our product mix.

 

Asa consequence, operating results for a particular future period are difficultto predict and prior results are not necessarily indicative of results to beexpected in the future.  Any of theforegoing factors may have a material adverse effect on our consolidatedresults of operations.

 

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***We have a historyof losses and negative cash flow, and we may not be able to generate positiveoperating income and cash flows in the future to support the expansion of ouroperations.***

 

Wehave incurred significant losses since our inception.  As of March 31, 2009, we had anaccumulated deficit of $129.6 million. We incurred substantial losses in 2008. We may expect to continue to incur losses in 2009.  We cannot assure you that we will notcontinue to incur losses or experience negative cash flow in the future.  We have only generated operating income inthe quarters ended December 25, 2005, September 24, 2006, December 31,2006 and December 31, 2008.  We donot believe our results of operations in the quarter ended December 31,2008 are indicative of our expected results in future near term quarters.  Our continued inability to generate positiveoperating income and cash flow would materially and adversely affect ourliquidity, consolidated results of operations and consolidated financialcondition.

 

Asignificant portion of our expenses is fixed, and we expect to continue toincur significant expenses for research and development, sales and marketing,customer support, and general and administrative functions.  Given the rate of growth in our customerbase, our limited operating history and the intense competitive pressures weface, we may be unable to adequately control our operating costs.  In order to achieve and maintainprofitability, we must increase our sales while maintaining control over ourexpense levels.

 

**Risks Related to Outstanding Litigation and InternalControls**

 

***An adverseresolution of outstanding litigation resulting from the restatement in October 2007of our historical financial statements could have a material adverse effect onour business, operating results, or financial condition.***

 

OnOctober 16, 2007, following a seven month review of our historic revenuerecognition practices that was led by our audit committee, we filed our AnnualReport on Form 10 K for the year ended December 31, 2006, whichincluded our consolidated financial statements for the year ended December 31,2006 and which restated our financial statements for the years ended December 26,2004 and December 25, 2005, for each of the interim quarterly periods infiscal 2004 and 2005, and the first three interim quarterly periods of fiscal2006.  Following the announcement of thecommencement of the audit committee review in March 2007, we, certain ofour directors and executive officers and others became defendants in aconsolidated federal securities class action. The consolidated complaint alleges that the various defendants violatedsections 10(b) and 20(a) of the Exchange Act and SEC Rule 10b 5promulgated thereunder, as well as sections 11 and 15 of the Securities Act, bymaking false and misleading statements and omissions relating to our financialstatements and internal controls with respect to revenue recognition.  We cannot provide any assurances that thefinal outcome of this consolidated securities class action will not have amaterial adverse effect on our business, results of operations, or financialcondition.  Litigation and any relatedproceedings can be time-consuming and expensive and could divert managementtime and attention from our business, which could have a material adverseeffect on our revenues and results of operations.  In addition, an adverse resolution of the outstandinglitigation could have a material adverse effect on our financial condition ifwe are required to use our available cash resources to settle the litigation orsatisfy any judgment.  This litigation isstill in the relatively early procedural stages, and we cannot predict itsoutcome.  In addition, we cannot at thistime predict whether our insurance coverage will be sufficient to cover anyliability or whether our carriers may seek to rescind or deny coverage.

 

***Potentialindemnification obligations set forth in our charter documents or in contractsbetween us and various officers, directors, and third parties could have amaterial adverse effect on our business, operating results or financialcondition.***

 

UnderDelaware law, our bylaws, and indemnification agreements to which we are a party,we may have an obligation to indemnify certain current and former officers anddirectors, as well as certain underwriters and stockholders, in relation tooutstanding litigation or other related matters, and we have recently begun toreimburse certain expenses of some indemnified parties in connection withoutstanding litigation.  Suchindemnification may have a material adverse effect on our business, results ofoperations, and financial condition to the extent insurance does not cover ourcosts.  The insurance carriers thatprovide our directors’ and officers’ liability policies may seek to rescind ordeny coverage, either in whole or part, with respect to pending litigation, orwe may not have sufficient coverage under such policies, in which case ourbusiness, results of operations, and financial condition may be materially andadversely affected.

 

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***If we fail toestablish and maintain proper and effective internal controls, our ability toproduce accurate financial statements on a timely basis could be impaired,which would adversely affect our consolidated operating results, our ability tooperate our business and our stock price.***

 

Inconnection with the 2007 audit committee review of our revenue recognitionpractices and our resulting financial restatement, we determined that we didnot have adequate internal financial and accounting controls to produce accurateand timely financial statements.  Amongweaknesses and deficiencies identified in our review, we determined that we hada material weakness with respect to revenue recognition.  Since the restatement was completed in October 2007,we have implemented new processes and procedures to improve our internalcontrols and have expanded our finance and accounting staff.  Nevertheless, as of March 31, 2009, ourchief executive officer and chief financial officer determined that ourinternal controls over financial reporting were not effective to providereasonable assurance regarding the reliability of our financial reporting andthe preparation of financial statements for external reporting in accordancewith generally accepted accounting principles in the United States.  Failure on our part to have effectiveinternal financial and accounting controls could cause our financial reportingto be unreliable, could have a material adverse effect on our business,operating results, and financial condition, and could adversely affect thetrading price of our common stock.

 

Ensuringthat we have adequate internal financial and accounting controls and proceduresin place to produce accurate financial statements on a timely basis is a costlyand time-consuming effort that needs to be re-evaluated frequently.  Our audit committee’s investigation ofrevenue recognition issues identified weaknesses and other control deficienciesrelating principally to revenue recognition and the processes and proceduresassociated with customer transactions and interaction with and review by ourfinance department.  As part of itsinternal control deficiencies letter dated October 15, 2007, our currentindependent registered public accounting firm identified a material weaknessrelating to revenue recognition.  Ourindependent registered public accounting firm noted that we did not havepolicies and procedures in place to ensure that modifications to, or sideagreements associated with, our standard terms of contract are properlydocumented and approved.  Our independentregistered public accounting firm also cited a lack of understanding of theaccounting consequences of modifications to standard terms by certain salesemployees and a lack of communication among our sales, engineering, and financedepartments to ensure that all sales transactions are properly tracked,documented, approved, and recorded.

 

Intheir October 2007 letter, our independent registered public accountingfirm identified additional control deficiencies that it determined to besignificant deficiencies but that it did not deem to be materialweaknesses.  In particular, it identifieda significant deficiency relating to segregation of duties, noting among otherthings that in certain instances journal entries and account reconciliationswere approved by the preparer of the entry or reconciliation.  Our independent registered public accountingfirm also noted a significant deficiency relating to post-closing adjustingjournal entries and recommended that we reassess the timeline of our financialstatement process to ensure that we have reasonable time to conclude a thoroughfinancial statement closing process. Finally, our independent registered public accounting firm identifiedsignificant deficiencies relating to recording certain purchase transactions,where parts were ordered and accepted by our engineering department, withoutapproval or involvement of our finance department, and where fixed assets werenot properly classified for depreciation purposes.

 

Inconnection with the audit of our consolidated financial statements for the yearended December 31, 2007 and the effectiveness of our internal control overfinancial reporting as of December 31, 2007, our independent registeredpublic accounting firm again identified a material weakness and somesignificant deficiencies in our internal control over financial reporting in aletter dated March 10, 2008. Specifically, our independent registered public accounting firm noted acontinuing material weakness relating to revenue recognition and our policiesand procedures to ensure that modifications to, or side agreements associatedwith, our standard terms of contract were properly approved, documented,tracked and recorded.

 

Inconnection with the preparation and related audit of our financial statementsfor the year ended December 31, 2008, our management concluded that thesame material weakness reported on December 31, 2007 continued to exist onDecember 31, 2008 with respect to revenue recognition policies andprocedures.  In addition, managementidentified significant deficiencies relating to (i) approval processes forcredit memos and special pricing terms and (ii) segregation of duties inour order management group.  Managementnoted that each of the audit committee’s 2007 recommendations had beencompleted but determined that a number of these remediation efforts had notbeen in place or tested for a sufficient period to conclude that they wereeffective.  In particular, we implementedstandardized terms and conditions for customer quotes, contracts, and invoicesin the fourth quarter of fiscal 2008, but only a small portion of our revenuesin 2008 were generated in transactions entered under these standardizedterms.  In addition, management concludedthat the controls implemented to date have largely been focused on errordetection and that we need to implement additional preventative controlsdesigned to address potential errors before they occur.

 

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Anyfailure on our part to remedy identified control deficiencies, or anyadditional delays or errors in our financial reporting, whether or notresulting from the identified material weakness relating to revenue recognitionor any significant deficiencies, would have a material adverse effect on ourbusiness, results of operations, or financial condition and could have asubstantial adverse impact on the trading price of our common stock.

 

Ourmanagement is responsible for establishing and maintaining adequate internalcontrol over financial reporting to provide reasonable assurance regarding thereliability of our financial reporting and the preparation of financialstatements for external purposes in accordance with generally acceptedaccounting principles in the United States. Our management does not expect that our internal control over financialreporting will prevent or detect all errors and all fraud.  A control system, no matter how well designedand operated, can provide only reasonable, not absolute, assurance that thecontrol system’s objectives will be met. Because of the inherent limitations in all control systems, noevaluation of controls can provide absolute assurance that misstatements due toerror or fraud will not occur or that all control issues and instances offraud, if any, within our company will have been detected.  As discussed in our Annual Report on Form 10-Kand this Quarterly Report on Form 10-Q, our audit committee andmanagement, together with our current and former independent registered publicaccounting firms, have identified numerous control deficiencies in the past andmay identify additional deficiencies in the future.

 

Wewere required to comply with Section 404 of the Sarbanes Oxley Act of 2002in connection with our Annual Report on Form 10-K for our year ending December 31,2008.  We have expended significantresources in developing the necessary documentation and testing proceduresrequired by Section 404 of the Sarbanes Oxley Act.  Our management and independent registeredpublic accounting firm concluded that we did not maintain effective controlover financial reporting as of December 31, 2008 based on the criteria inInternal Control Integrated Framework issued by the Committee of SponsoringOrganizations of the Treadway Commission. In this Quarterly Report on Form 10-Q, our management againconcluded that we did not maintain effective internal controls as of March 31,2009.  We cannot be certain that theactions we have taken and are taking to improve our internal controls overfinancial reporting will be sufficient or that we will be able to implement ourplanned processes and procedures in a timely manner.  In addition, we may be unable to produceaccurate financial statements on a timely basis.  Any of the foregoing could cause investors tolose confidence in the reliability of our consolidated financial statements,which could cause the market price of our common stock to decline and make itmore difficult for us to finance our operations and growth.

** **

**Risks Related to Our Business and Industry**

 

***Because ourmarkets are highly competitive and dominated by large, well-financedparticipants, we may be unable to compete effectively.***

 

Competitionin our market is intense, and we expect competition to increase.  The market for broadband access equipment isdominated primarily by large, established suppliers such as Alcatel Lucent SA,Motorola, Tellabs and ADTRAN Inc.  Whilethese suppliers focus primarily on large service providers, they have competed,and may increasingly compete, in the IOC market segment.  In addition, a number of companies, includingCalix, Inc., have developed, or are developing, products that compete withours, including within our core IOC segment.

Ourability to compete successfully depends on a number of factors, including:

 

·      the successful identification anddevelopment of new products for our core market;

 

·      our ability to timely anticipate customerand market requirements and changes in technology and industry standards;

 

·      our ability to gain access to and usetechnologies in a cost-effective manner;

 

·      our ability to timely introducecost-effective new products;

 

·      our ability to differentiate our productsfrom our competitors’ offerings;

 

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·      our ability to gain customer acceptanceof our products;

 

·      the performance of our products relativeto our competitors’ products;

 

·      our ability to market and sell ourproducts through effective sales channels;

 

·      our ability to establish and maintaineffective internal financial and accounting controls and procedures and restoreconfidence in our financial reporting;

 

·      the protection of our intellectualproperty, including our processes, trade secrets and know-how; and

 

·      our ability to attract and retainqualified technical, executive and sales personnel.

 

Manyof our existing and potential competitors are larger than we are with longeroperating histories, and have substantially greater financial, technical,marketing or other resources; significantly greater name recognition; and alarger installed base of customers than we do. Unlike many of our competitors, we do not provide equipment financing topotential customers.  In addition, manyof our competitors have broader product lines than we do, so they can offerbundled products, which may appeal to certain customers.

 

Becausethe products that we and our competitors sell require a substantial investmentof time and funds to install, customers are typically reluctant to switchequipment suppliers once a particular supplier’s product has beeninstalled.  As a result, competitionamong equipment suppliers to secure contracts with potential customers isparticularly intense and will continue to place pressure on productpricing.  Some of our competitors have inthe past and may in the future resort to offering substantial discounts to winnew customers and generate cash flows. If we are forced to reduce prices in order to secure customers, we maybe unable to sustain gross margins at desired levels or achieve profitability.

 

***We have relied,and expect to continue to rely, on our BLC 6000 product line for thesubstantial majority of our sales, and a decline in sales of our BLC 6000 linewould cause our overall sales to decline proportionally.***

 

Wehave derived a substantial majority of our sales in recent years from our BLC6000 product line.  We expect that salesof this product line will continue to account for a substantial majority of oursales for the foreseeable future.  Anyfactors adversely affecting the pricing of, or demand for, our BLC 6000 line, includingcompetition or technological change, could cause our sales to declinematerially and our business to suffer.

 

***If we fail toenhance our existing products and develop new products and features that meetchanging customer requirements and support new technological advances, oursales would be materially and adversely affected.***

 

Ourmarket is characterized by rapid technological advances, frequent new productintroductions, evolving industry standards and recurring changes in end-userrequirements.  Our future success willdepend significantly on our ability to anticipate and adapt to such changes andto offer, on a timely and cost-effective basis, products and features that meetchanging customer demands and industry standards.  The timely development of new or enhancedproducts is a complex and uncertain process, and we may not be able toaccurately anticipate market trends or have sufficient resources tosuccessfully manage long development cycles. We may also experience design, manufacturing, marketing and otherdifficulties that could delay or prevent the development, introduction ormarketing of new products and enhancements. The introduction of new or enhanced products also requires that wemanage the transition from older products to these new or enhanced products inorder to minimize disruption in customer ordering patterns and ensure thatadequate supplies of new products are available for delivery to meetanticipated customer demand.  If we areunable to develop new products or enhancements to our existing products on atimely and cost-effective basis, or if our new products or enhancements fail toachieve market acceptance, our business, consolidated financial condition andconsolidated results of operations would be materially and adversely affected.

 

Werecently enhanced our BLC 6000 platform to support active Gigabit Ethernetfiber-to-the-premises, or FTTP, services. Although we have invested significant time and resources to develop thisenhancement, these FTTP-enabled products are relatively new, with limited salesto date, and market acceptance of these products may fall below ourexpectations.  The introduction of newproducts is also expected to place pressure on our gross margins as most newproducts require time and increased sales volumes to achieve cost-savingefficiencies in production.  To theextent our new products and enhancements do not achieve broad marketacceptance, we may not realize expected returns on our investments, and we maylose current and potential customers.

 

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***If our productscontain undetected defects, including errors and interoperability issues, wecould incur significant unexpected expenses to remedy the defects, which couldhave a material adverse effect on our sales, results of operations or financialcondition.***

 

Althoughour products are tested prior to shipment, they may contain software orhardware errors, defects or interoperability issues (collectively described as “defects”)that may only be detected when deployed in live networks that generate highamounts of communications traffic.  Inaddition, defects or other malfunctions or quality control issues may notappear until the equipment has been deployed for an extended period oftime.  We also continue to introduce newproducts that may have undetected software or hardware defects.  Our customers may discover defects in our productsat any time after deployment or as their networks are expanded and modified.  Any defects in our products discovered in thefuture, or failures of our customers’ networks, whether caused by our productsor those of another vendor, could result in lost sales and market share andnegative publicity regarding our products. For example, during fiscal 2004, we experienced unusually high repaircosts related to the effect of lightning strikes on selected BLC 6000installations.  As a result, weexperienced higher than anticipated costs of sales, which management believeswere necessary to maintain customer satisfaction.  In 2007, we experienced higher than averagefailures of certain assemblies that were fabricated between October 2005and January 2006 and identified a design issues associated with atransistor that resulted in equipment disruption and that required a reworkeffort.  As a result, we increased ourwarranty accruals in 2008.  Recently, wehave identified malfunctions or defects that we were required to repair underapplicable warranties (or elected to repair for customer relations purposes)related to equipment that had been in service for extended periods oftimes.  Defects, malfunctions, or otherperformance issues relating to our products could increase our warrantyaccruals and operating expenses, could have an adverse effect on marketperceptions of our products, and could have a material adverse effect on ourbusiness, consolidated results of operations, and consolidated financialcondition.

 

***Our efforts toincrease our sales and marketing efforts to larger telecom operators, which mayrequire us to broaden our reseller relationships, may be unsuccessful.***

 

Todate, our sales and marketing efforts have been focused on small and mid-sizedIOCs.  A key element of our long-termstrategy is to increase sales to large IOCs, competitive local exchangecarriers, regional Bell operating companies and international telecom serviceproviders.  We may be required to devotesubstantial technical, marketing and sales resources to the pursuit of thesecustomers, who have lengthy equipment qualification and sales cycles.  In particular, sales to these customers mayrequire us to upgrade our products to meet more stringent performance criteria,develop new customer specific features or adapt our product to meetinternational standards.  We may incursubstantial technical, sales and marketing expenses and expend significantmanagement effort without any assurance of generating sales.  Because we have limited resources and largetelecom operators may be reluctant to purchase products from a relatively smallsupplier like us, we plan to target these customers in cooperation withstrategic resellers.  These resellerrelationships may not be available to us, and if formed, may include terms,such as exclusivity and non-competition provisions, that restrict ouractivities or impose onerous requirements on us.  Moreover, in connection with theserelationships, we may forego direct sales opportunities in favor of formingrelationships with strategic resellers. If we are unable to successfully increase our sales to larger telecomoperators or expand our reseller relationships, we may be unable to implementour long-term growth strategy.

 

***If we were toexperience payment problems with either resellers or customers for whom we areunable to assess creditworthiness, it could have an adverse impact on ourbusiness, operating results, or financial condition.***

 

Valueadded resellers, or VARs, account for a substantial portion of our revenue in aquarter.  Some of these VARs are not wellcapitalized, making collection of receivables from them uncertain.  In addition, in certain instances, we arelimited in our ability to evaluate the creditworthiness of direct customers whodecline to provide us with financial information.  In 2007, in connection with the restatementof our consolidated financial statements, we adopted a revenue recognitionpolicy that we would not recognize revenue from those resellers who lacked anindependent ability to pay us until we received cash payment.  Sales to VARs for whom we are not able torecognize revenue until we receive cash payment are reflected as deferredrevenue.  Any collection problems we mayexperience with these resellers or direct customers could have an adverseimpact on our business, operating results, or financial condition.  In particular, when we sell and ship toresellers and other customers, legal title to the equipment passes to thereseller or customer on shipment, even though we have not recognized revenueand the equipment continues to be reflected as inventory on our balancesheet.  Any material collection issueswith resellers or other customers could result in increases in bad debt expenseor collection costs, inventory impairments, or adjustments to our reportedrevenues or deferred revenues, any of which could result in a decline in ourstock price.

 

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***We rely onresellers to promote, sell, install and support our products to small customersin North America, and their failure to do so or our inability to recruit orretain resellers may substantially reduce our sales and thus seriously harm ourbusiness.***

 

Werely on value added resellers who can provide high quality sales and supportservices.  We compete with othertelecommunications systems providers for our resellers’ business as ourresellers generally market competing products. If a reseller promotes a competitor’s products to the detriment of ourproducts or otherwise fails to market our products and services effectively, wecould lose market share.  In addition,the loss of a key reseller or the failure of resellers to provide adequatecustomer service could have a negative effect on customer satisfaction andcould cause harm to our business.  If wedo not properly train our resellers to sell, install and service our products,our business, financial condition and results of operations will suffer.

 

***We may be unableto successfully expand our international operations.  In addition, our international expansionplans, if implemented, will subject us to a variety of risks that may adverselyaffect our business.***

 

Wecurrently generate almost all of our sales from customers in North America andhave very limited experience marketing, selling and supporting our products andservices outside North America or managing the administrative aspects of aworldwide operation.  While we intend toexpand our international operations, we may not be able to create or maintain internationalmarket demand for our products.  Inaddition, regulations or standards adopted by other countries may require us toredesign our existing products or develop new products suitable for sale inthose countries.  If we investsubstantial time and resources to expand our international operations and areunable to do so successfully and in a timely manner, our business, financialcondition and results of operations will suffer.  In the course of expanding our internationaloperations and operating overseas, we will be subject to a variety of risks,including:

 

·      differing regulatory requirements,including tax laws, trade laws, labor regulations, tariffs, export quotas,custom duties or other trade restrictions and changes thereto;

 

·      greater difficulty supporting andlocalizing our products;

 

·      different or unique competitive pressuresas a result of, among other things, the presence of local equipment suppliers;

 

·      challenges inherent in efficientlymanaging an increased number of employees over large geographic distances,including the need to implement appropriate systems, policies, benefits andcompliance programs;

 

·      limited or unfavorable intellectualproperty protection;

 

·      changes in a specific country’s or region’spolitical or economic conditions; and

 

·      restrictions on the repatriation ofearnings.

 

***If we lose any ofour key personnel, or are unable to attract, train and retain qualifiedpersonnel, our ability to manage our business and continue our growth would benegatively impacted.***

 

Oursuccess depends, in large part, on the continued contributions of our keymanagement, engineering, sales and marketing personnel, many of whom are highlyskilled and would be difficult to replace. None of our senior management or key technical or sales personnel isbound by a written employment contract to remain with us for a specifiedperiod.  In addition, we do not currentlymaintain key-man life insurance covering our key personnel.  If we lose the services of any key personnel,our business, financial condition and results of operations may suffer.

 

Competitionfor skilled personnel, particularly those specializing in engineering and salesis intense.  We cannot be certain that wewill be successful in attracting and retaining qualified personnel, or thatnewly hired personnel will function effectively, either individually or as agroup.  In particular, we must continueto expand our direct sales force, including hiring additional sales managers,to grow our customer base and increase sales. Even if we are successful in hiring additional 

 

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salespersonnel, new sales representatives require up to a year to become effective,and the recent loss of a senior sales executive could have an adverse impact onour ability to recruit and train additional sales personnel.  In addition, our industry is characterized byfrequent claims relating to unfair hiring practices.  We may become subject to such claims and mayincur substantial costs in defending ourselves against these claims, regardlessof their merits.  If we are unable toeffectively hire, integrate and utilize new personnel, the execution of ourbusiness strategy and our ability to react to changing market conditions may beimpeded, and our business, financial condition and results of operations couldsuffer.

 

***We may havedifficulty managing growth in our business, if any, which could limit ourability to increase sales and cash flow.***

 

We expect to expand ourresearch and development, sales, marketing and support activities, includingour activities outside the U.S. depending on future business and economicconditions.  Our historical growth hasplaced, and is expected to continue to place, significant demands on ourmanagement, as well as our financial and operational resources, as required to:

 

·      implement and maintain effectivefinancial disclosure controls and procedures, including the remediation ofinternal control deficiencies identified in our audit committee investigation;

 

·      implement appropriate operational andfinancial systems;

 

·      manage a larger organization;

 

·      expand our manufacturing and distributioncapacity;

 

·      increase our sales and marketing efforts;and

 

·      broaden our customer supportcapabilities.

 

In addition, as discussedin this Quarterly Report on Form 10-Q under Part I, Item 4, ourinternal controls over financial reporting are currently ineffective, and wewill need to expand our finance organization and retain outside advisors toimplement adequate and effective financial controls.  If we cannot grow or manage our businessgrowth effectively, we may not be able to execute our business strategies andour business, consolidated financial condition and consolidated results ofoperations would suffer.

 

***Because we dependupon a small number of outside contractors to manufacture our products, ouroperations could be disrupted if we encounter problems with any of thesecontractors.***

 

Wedo not have internal manufacturing capabilities and rely upon a small number ofcontract manufacturers to build our products. In particular, we rely on Flash Electronics, Inc. for themanufacture of our BLC 6000 blade products. Our reliance on a small number of contract manufacturers makes usvulnerable to possible capacity constraints and reduced control over componentavailability, delivery schedules, manufacturing yields and costs.  We do not have long-term supply contractswith our primary contract manufacturers. Consequently, these manufacturers are not obligated to supply productsto us for any specific period, in any specific quantity or at any certainprice, except as may be provided by a particular purchase order.  If any of our manufacturers were unable orunwilling to continue manufacturing our products in required volumes and athigh quality levels, we would have to identify, qualify and select acceptablealternative manufacturers.  It ispossible that an alternate source may not be available to us when needed or maynot be in a position to satisfy our production requirements at commerciallyreasonable prices and quality.  Anysignificant interruption in manufacturing would require us to reduce our supplyof products to our customers, which in turn could have a material adverse effecton our customer relations, business, consolidated financial condition andconsolidated results of operations.

 

Aportion of our manufacturing was moved to the overseas facilities of ourprimary contract manufacturer.  Thistransition presents a number of risks, including the potential for a supplyinterruption or a reduction in manufacturing quality or controls, any of whichwould negatively impact our business, customer relationships and results ofoperations.

 

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***We depend on solesource and limited source suppliers for key components and license technologyfrom third parties.  If we are unable tosource these components and technologies on a timely basis, we will not be ableto deliver our products to our customers.***

 

Wedepend on sole source and limited source suppliers for key components of ourproducts.  We may from time to time enterinto original equipment manufacturer (OEM) and/or original design manufacturer(ODM) agreements to manufacture and/or design certain products.  Any of the sole source and limited sourcesuppliers, OEM and ODM suppliers upon which we rely could stop producing ourcomponents, cease operations entirely, or be acquired by, or enter intoexclusive arrangements with, our competitors. We do not have long-term supply agreements with our suppliers, and ourpurchase volumes are currently too low for us to be considered a prioritycustomer by most of our suppliers.  As aresult, these suppliers could stop selling components to us at commerciallyreasonable prices, or at all.  Any suchinterruption or delay may force us to seek similar components from alternatesources, if available at all.  Switchingsuppliers may require that we redesign our products to accommodate the newcomponent and may potentially require us to re-qualify our products with ourcustomers, which would be costly and time-consuming.  Any interruption in the supply of sole sourceor limited source components would adversely affect our ability to meetscheduled product deliveries to our customers and would materially andadversely affect our business, consolidated financial condition andconsolidated results of operations.

 

Periodically,we may be required to license technology from third parties to develop newproducts or product enhancements.  Thesethird party licenses may be unavailable to us on commercially reasonable terms,if at all.  Our inability to obtainnecessary third party licenses may force us to obtain substitute technology oflower quality or performance standards or at greater cost, any of which couldseriously harm the competitiveness of our products and which would result in amaterial and adverse effect on our business, consolidated financial conditionand consolidated results of operations.

 

***If we fail toaccurately predict our manufacturing requirements and manage our inventory, wecould incur additional costs, experience manufacturing delays, or lose revenue.***

 

Leadtimes for the materials and components that we order through our contractmanufacturers may vary significantly and depend on numerous factors, includingthe specific supplier, contract terms and market demand for a component at agiven time.  If we overestimate ourproduction requirements, our contract manufacturers may purchase excesscomponents and build excess inventory. If our contract manufacturers purchase excess components that are uniqueto our products or build excess products, we could be required to pay for theseexcess parts or products and recognize related inventory write-down costs.  If we underestimate our product requirements,our contract manufacturers may have inadequate component inventory, which couldinterrupt manufacturing of our products and result in delays or cancellation ofsales.  In prior periods we haveexperienced excess and obsolete inventory write downs which impact our cost ofrevenue.  This may continue in thefuture, which would have an adverse effect on our gross margins, consolidatedfinancial condition and consolidated results of operations.

 

***Demand for ourproducts is dependent on the willingness of our customers to deploy newservices, the success of our customers in selling new services to theirsubscribers, and the willingness of our customers to utilize IP and Ethernettechnologies in local access networks.***

 

Demand for our productsis dependent on the success of our customers in deploying and selling servicesto their subscribers.  Our BLC 6000platform simultaneously supports IP-based services, such as broadband Internet,VoIP, IPTV and FTTP, and traditional voice services.  If end-user demand for IP-based services doesnot grow as expected or declines and our customers are unable or unwilling todeploy and market these newer services, demand for our products may decrease orfail to grow at rates we anticipate. 

 

Our strategy includesdeveloping products for the local access network that incorporate IP andEthernet technologies.  If thesetechnologies are not widely adopted by telecom service providers for use inlocal access networks, demand for our products may decline or not grow.  As a result, we may be unable to sell ourproducts to recoup our expenses related to the development of these productsand our consolidated results of operations would be harmed.

 

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***Changes inexisting accounting or taxation rules or practices may adversely affectour consolidated results of operations. In addition, as we expand our business, we could become subject totaxation in new states or jurisdictions, which will require us to incuradditional compliance costs and potential taxes and fees associated withcomplying with such tax laws.***

 

Weare subject to numerous tax and accounting requirements, and changes inexisting accounting or taxation rules or practices, or varyinginterpretations of current rules or practices, could have a significantadverse effect on our financial results or the manner in which we conduct ourbusiness.  For example, prior to fiscal2006, we accounted for options granted to employees using the intrinsic valuemethod, which, given that we generally granted employee options with exerciseprices equal to the fair market value of the underlying stock at the time of grant,resulted in no compensation expense. Beginning in fiscal 2006, we began recording expenses for our stockbased compensation plans, including option grants to employees, using the fairvalue method, under which we expect our ongoing accounting charges related toequity awards to employees to be significantly greater than those we would haverecorded under the intrinsic value method. We expect to continue to use stock based compensation as a significantcomponent of our compensation package for existing and future employees.

 

Accordingly,changes in accounting for stock based compensation expense are expected to havea material adverse affect on our reported results.  Any similar changes in accounting or taxationrules or practices could have a material impact on our consolidatedfinancial results or the way we conduct our business.

 

Inrecent years, the geographic scope of our business has expanded, and suchexpansion requires us to comply with the tax laws and regulations of multiplejurisdictions.  Requirements as totaxation vary substantially among states and other jurisdictions.  We have recently expanded our internationalsales activity and may become subject to foreign tax laws as well, particularlyrelated to value added taxes.  Complyingwith the tax laws of these jurisdictions can be time consuming and expensiveand could subject us to penalties and fees if we inadvertently fail tocomply.  In the United States, taxauthorities in states where we believed we were not subject to sales tax couldassert jurisdiction and seek to collect sales taxes, which could result inincreased compliance expense as well as penalties and could adversely affectour customer relationships if it is determined we need to collect sales taxesfor prior transactions.  In the event wefail inadvertently to comply with applicable tax laws, it could have a materialadverse effect on our business, results of operations, and financial condition.

 

***The amount of ournet operating loss carryforwards, or NOLs, is uncertain, and prior transactionsto which we have been a party and future transactions to which we may become aparty, including stock issuances and certain shareholder stock transactions mayjeopardize our ability to use some or all of our NOLs.  In addition, California and certain stateshave recently suspended or are considering suspending, the ability to use netoperating loss carryforwards in future years and this could adversely affectfuture operating results.***

 

Basedon current tax law, we believe we have certain net operating losscarryforwards, or NOLs, for U.S. federal and state income tax purposes tooffset future taxable income.  As of March 31,2009, we had incurred significant losses in the United States.  Our ability to utilize these NOLs may besubject to significant limitations under Section 382 of the InternalRevenue Code if we have undergone, or undergo in the future, an ownershipchange.  An ownership change occurs forpurposes of Section 382 of the Internal Revenue Code if, among otherthings, stockholders who own or have owned, directly or indirectly, 5% or moreof our common stock (with certain groups of less-than-5% stockholders treatedas a single stockholder for this purpose) increase their aggregate percentageownership of our common stock by more than fifty percentage points above thelowest percentage of the stock owned by these stockholders at any time duringthe relevant three-year testing period. In the event of an ownership change, Section 382 imposes an annuallimitation, based upon our value at the time of the ownership change, on theamount of taxable income a corporation may offset with NOLs.  Any unused annual limitation may be carriedover to later years until the applicable expiration date for the respectiveNOLs.

 

Webelieve that past events, such as the merger of Occam CA with AcceleratedNetworks, our private placements of preferred stock, and other equitytransactions (including our 2006 public offering) triggered an ownership changefor purposes of Section 382 of the Internal Revenue Code.  Even if certain of these prior transactionsdid not trigger an ownership change, they increased the likelihood that we mayundergo an ownership change in the future. Any such ownership change would limit, possibly significantly, ourability to use any U.S. federal and state NOLs as described above.

 

Tothe extent that these NOLs become significantly limited, we expect to be taxedon our income, if any, at the U.S. federal and state statutory rates.  As a result, any inability to utilize theseNOLs would adversely affect future operating results by the amount of thefederal or state taxes that would not have otherwise been payable, having anadverse impact on our operating results and financial condition.  In addition, inability to use NOLs would adverselyaffect our financial condition relative to our financial condition had the NOLsbeen available.  In addition, Californiaand certain states have suspended use of NOLs, 

 

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andother states are considering similar measures. As a result, we may incur higher state income tax expense in thefuture.  Depending on our future taxposition, continued suspension of our ability to use state NOLs could have anadverse impact on our operating results and financial condition.

 

***We may pursueacquisitions, which may involve a number of risks.  If we are unable to address and resolve theserisks successfully, such acquisitions could have a material adverse impact toour business, consolidated results of operations and consolidated financialcondition.***

 

Wemay make acquisitions of businesses, products or technologies to expand ourproduct offerings and capabilities, customer base and business.  In October 2007, we acquired certainassets and assumed certain liabilities of Terawave Communications and we haveevaluated, and expect to continue to evaluate, a wide array of potentialstrategic transactions.  We have limitedexperience making such acquisitions.  Anyof these transactions could be material to our consolidated financial conditionand results of operations.  Theanticipated benefit of acquisitions may never materialize.  In addition, the process of integrating anacquired business, products or technologies may create unforeseen operatingdifficulties and expenditures.  Some ofthe areas where we may face acquisition related risks include:

 

·      diversion of management time andpotential business disruptions;

 

·      expenses, distractions and potentialclaims resulting from acquisitions, whether or not they are completed;

 

·      retaining and integrating employees fromany businesses we may acquire;

 

·      issuance of dilutive equity securities orincurrence of debt;

 

·      integrating various accounting,management, information, human resource and other systems to permit effectivemanagement;

 

·      incurring possible write-offs, impairmentcharges, contingent liabilities, amortization expense or write-offs ofgoodwill;

 

·      difficulties integrating and supportingacquired products or technologies;

 

·      unexpected capital equipment outlays andrelated costs;

 

·      insufficient revenues to offset increasedexpenses associated with the acquisition;

 

·      under performance problems associatedwith acquisitions;

 

·      opportunity costs associated withcommitting capital to such acquisitions;, and

 

·      becoming involved in acquisition relatedlitigation.

 

Foreignacquisitions involve unique risks in addition to those mentioned above,including those related to integration of operations across different culturesand languages, currency risks and the particular economic, political andregulatory risks associated with specific countries.  We cannot assure that we will be able toaddress these risks successfully, or at all, without incurring significantcosts, delay or other operating problems. Our inability to resolve any of such risks could have a material adverseimpact on our business, consolidated financial condition and consolidatedresults of operations.

 

***Businesscombinations and other financial restructurings by telecom service providers orour competitors could adversely affect our business.***

 

Inrecent years, the telecom service provider market has undergone substantialconsolidation, illustrated by the merger of SBC Communications Inc. withAT&T Inc., the merger of SBC Communications (now renamed AT&T) withBellSouth Corporation (now also renamed AT&T), and the merger of VerizonCommunications Inc. with MCI, Inc. Transactions such as these generally have negative implications forequipment suppliers like us, including a reduction in the number of potentialcustomers for telecom equipment products, a decrease in aggregate capital spendingand greater pricing power by service providers over equipment suppliers.  Continued consolidation of the telecomservice provider industry, including among IOC customers which we focus on,could make it more difficult for us to grow our customer base, increase salesof our products and maintain adequate gross margins.

 

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Thetelecommunications equipment industry is also characterized by frequent mergersand acquisitions, as illustrated by the merger of Alcatel with LucentTechnologies and the acquisition of Advanced Fibre Communications, Inc. byTellabs.  An acquisition of one of ourcompetitors, or merger between our competitors, could harm our competitiveposition or cause our target customers to delay purchases of our products whilethey assess the impact of the combination. If a larger company with more resources were to acquire a competitor ofours, they may invest additional resources in developing, marketing andsupporting competitive products, which would negatively impact our business,consolidated financial condition and consolidated results of operations.

 

***Our customers aresubject to government regulation, and changes in current or future laws orregulations that negatively impact our customers could harm our business.***

 

Thejurisdiction of the Federal Communications Commission, or FCC, extends to theentire telecommunications industry, including our customers.  Future FCC regulations affecting thebroadband access industry, our customers, or the service offerings of ourcustomers, may harm our business.  Forexample, FCC regulatory policies affecting the availability of data andInternet services may impede the penetration of our customers into certainmarkets or affect the prices they may charge in such markets.  Furthermore, many of our customers aresubject to FCC rate regulation of interstate telecommunications services, andare recipients of federal universal service subsidies implemented andadministered by the FCC.  In addition,many of our customers are subject to state regulation of intrastatetelecommunications services, including rates for such services, and may alsoreceive state universal service subsidies. Changes in FCC or state rate regulations or federal or state universalservice subsidies or the imposition of taxes on Internet access service, couldadversely affect our customers’ revenues and capital spending plans.  In addition, international regulatory bodiesare beginning to adopt standards and regulations for the telecom industry.  These domestic and foreign standards, lawsand regulations address various aspects of VoIP and broadband use, includingissues relating to liability for information retrieved from, or transmittedover, the Internet.  Changes instandards, laws and regulations, or judgments in favor of plaintiffs inlawsuits against service providers could adversely affect the development ofInternet and other IP-based services. This, in turn, could directly or indirectly materially adversely impactthe telecom industry in which our customers operate.  To the extent our customers are adverselyaffected by laws or regulations regarding their business, products or serviceofferings, our business, financial condition and results of operations wouldsuffer.

 

***If we fail tocomply with regulations and evolving industry standards, sales of our existingand future products could be adversely affected.***

 

Themarkets for our products are characterized by a significant number of laws,regulations and standards, both domestic and international, some of which areevolving as new technologies are deployed. Our products are required to comply with these laws, regulations andstandards, including those promulgated by the FCC.  For example, the FCC recently required thatall facilities based providers of broadband Internet access and interconnectVoIP services meet the capability requirements of the Communications Assistancefor Law Enforcement Act by May 14, 2007. Subject to certain statutory parameters, we are required to makeavailable to our customers, on a reasonably timely basis and at a reasonablecharge, such features or modifications as are necessary to permit our customersto meet those capability requirements. In some cases, we are required to obtain certifications orauthorizations before our products can be introduced, marketed or sold.  There can be no assurance that we will beable to continue to design our products to comply with all necessaryrequirements in the future.  Accordingly,any of these laws, regulations and standards may directly affect our ability tomarket or sell our products.

 

Someof our operations are regulated under various federal, state and localenvironmental laws.  Our plannedinternational expansion will likely subject us to additional environmental andother laws.  For example, the EuropeanUnion Directive 2002/96/EC on waste electrical and electronic equipment, knownas the WEEE Directive, requires producers of certain electrical and electronicequipment, including telecom equipment, to be financially responsible for thespecified collection, recycling, treatment and disposal of past and presentcovered products placed on the market in the European Union.  The European Union Directive 2002/95/EC on therestriction of the use of hazardous substances in electrical and electronicequipment, known as the RoHS Directive, restricts the use of certain hazardoussubstances, including lead, in covered products.  Failure to comply with these and otherenvironmental laws could result in fines and penalties and decreased sales,which could adversely affect our planned international expansion and ourconsolidated operating results.

 

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***We may not be ableto protect our intellectual property, which could adversely affect our abilityto compete effectively.***

 

Wedepend on our proprietary technology for our success and ability tocompete.  We currently hold 24 issuedpatents and have several patent applications pending.  We rely on a combination of patent, copyright,trademark and trade secret laws, as well as confidentiality agreements andlicensing arrangements, to establish and protect our proprietary rights.  Existing patent, copyright, trademark andtrade secret laws will afford us only limited protection.  In addition, the laws of some foreigncountries do not protect proprietary rights to the same extent, as do the lawsof the U.S.  We cannot assure you thatany pending patent applications will result in issued patents, and issuedpatents could prove unenforceable.  Anyinfringement of our proprietary rights could result in significant litigationcosts.  Further, any failure by us toadequately protect our proprietary rights could result in our competitorsoffering similar products, resulting in the loss of our competitive advantageand decreased sales.

 

Despiteour efforts to protect our proprietary rights, attempts may be made to copy orreverse engineer aspects of our products, or to obtain and use information thatwe regard as proprietary.  Accordingly,we may be unable to protect our proprietary rights against unauthorized third partycopying or use.  Furthermore, policingthe unauthorized use of our intellectual property would be difficult forus.  Litigation may be necessary in thefuture to enforce our intellectual property rights, to protect our tradesecrets or to determine the validity and scope of the proprietary rights ofothers.  Litigation could result insubstantial costs and diversion of resources and could have a material adverseeffect on our business, consolidated financial condition and consolidatedresults of operations.

 

***We could becomesubject to litigation regarding intellectual property rights that couldmaterially harm our business.***

 

Wemay be subject to intellectual property infringement claims that are costly todefend and could limit our ability to use some technologies in the future.  Our industry is characterized by frequentintellectual property litigation based on allegations of infringement ofintellectual property rights.  From timeto time, third parties have asserted against us and may assert against us inthe future patent, copyright, trademark or other intellectual property rightsto technologies or rights that are important to our business.  In addition, we have agreed, and may in thefuture agree, to indemnify our customers for any expenses or liabilitiesresulting from claimed infringements of patents, trademarks or copyrights ofthird parties.  Any claims asserting thatour products infringe, or may infringe on, the proprietary rights of thirdparties, with or without merit, could be time-consuming, resulting in costlylitigation and diverting the efforts of our management.  These claims could also result in productshipment delays or require us to modify our products or enter into royalty orlicensing agreements.  Such royalty orlicensing agreements, if required, may not be available to us on acceptableterms, if at all.

 

***Our business couldbe shut down or severely impacted if a natural disaster or other unforeseencatastrophe occurs, particularly in California.***

 

Ourbusiness and operations depend on the extent to which our facilities andproducts are protected against damage from fire, earthquakes, power loss andsimilar events.  Some of our key businessactivities currently take place in regions considered as high risk for certaintypes of natural disasters.  Despiteprecautions we have taken, a natural disaster or other unanticipated problemcould, among other things, hinder our research and development efforts, delaythe shipment of our products and affect our ability to receive and fulfill orders.  While we believe that our insurance coverageis comparable to those of similar companies in our industry, it does not coverall natural disasters, in particular, earthquakes and floods.

 

***Risks Related toOur Common Stock***

 

***Our executiveofficers, directors and their affiliates hold a large percentage of our stockand their interests may differ from other stockholders.***

 

Asof March 31, 2009, our executive officers, directors and their affiliatesbeneficially owned, in the aggregate, approximately 28.3% of our outstandingcommon stock, of this 26.9% is collectively owned by investment fundsaffiliated with U.S. Venture Partners and Norwest Venture Partners.  Representatives of U.S. Venture Partners andNorwest Venture Partners are directors of Occam.  These stockholders have significant influenceover most matters requiring approval by stockholders, including the election ofdirectors, any amendments to our certificate of incorporation and significantcorporate transactions.

 

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***Our stock pricemay be volatile, and you may not be able to resell shares of our common stockat or above the price you paid.***

 

Our shares of commonstock began trading on The NASDAQ Global Market in November 2006.  An active public market for our shares on TheNASDAQ Global Market may not be sustained. In particular, limited trading volumes and liquidity may limit theability of stockholders to purchase or sell our common stock in the amounts andat the times they wish.  Trading volumein our common stock tends to be modest relative to our total outstandingshares, and the price of our common stock may fluctuate substantially(particularly in percentage terms) without regard to news about us or generaltrends in the stock market.

 

In addition, the tradingprice of our common stock could become highly volatile and could be subject towide fluctuations in response to various factors, some of which are beyond ourcontrol.  These factors include thosediscussed in this “Risk Factors” section of this Annual Report on Form 10-Kand others such as:

 

·      quarterly variations in our consolidatedresults of operations or those of our competitors;

 

·      changes in earnings estimates orrecommendations by securities analysts;

 

·      announcements by us or our competitors ofnew products, significant contracts, commercial relationships, acquisitions orcapital commitments;

 

·      developments with respect to intellectualproperty rights;

 

·      our ability to develop and market new andenhanced products on a timely basis;

 

·      commencement of, or involvement in,litigation;

 

·      changes in governmental regulations or inthe status of our regulatory approvals;

 

·      a slowdown in the telecom industry orgeneral economy; and

 

·      continuation of the current economic andcredit crisis.

 

In recent years, thestock market in general, and the market for technology companies in particular,has experienced extreme price and volume fluctuations that have often beenunrelated or disproportionate to the operating performance of thosecompanies.  Broad market and industryfactors may seriously affect the market price of our common stock, regardlessof our actual operating performance.  Inaddition, in the past, following periods of volatility in the overall marketand the market price of a particular company’s securities, securities classaction litigation has often been instituted against these companies.  We are currently a defendant in securities classaction litigation arising from the restatement of our consolidated financialstatements.  This litigation or anyadditional litigation that may be instituted against us could result insubstantial costs and a diversion of our management’s attention and resources.

 

***Provisions in ourcharter documents and under Delaware law could discourage a takeover thatstockholders may consider favorable.***

 

Provisions in ourcertificate of incorporation and bylaws, as amended and restated, may have theeffect of delaying or preventing a change of control or changes in ourmanagement.  These provisions include thefollowing:

 

·      our board of directors has the right toelect directors to fill a vacancy created by the expansion of the board ofdirectors or the resignation, death or removal of a director, which preventsstockholders from being able to fill vacancies on our board of directors;

 

·      our stockholders may not act by writtenconsent or call special stockholders’ meetings; as a result, a holder, orholders, controlling a majority of our capital stock would not be able to takecertain actions other than at annual stockholders’ meetings or specialstockholders’ meetings called by the board of directors, the chairman of theboard, the chief executive officer or the president;

 

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·      our certificate of incorporationprohibits cumulative voting in the election of directors, which limits theability of minority stockholders to elect director candidates;

 

·      stockholders must provide advance noticeto nominate individuals for election to the board of directors or to proposematters that can be acted upon at a stockholders’ meeting, which may discourageor deter a potential acquiror from conducting a solicitation of proxies toelect the acquiror’s own slate of directors or otherwise attempting to obtaincontrol of our company; and

 

·      our board of directors may issue, withoutstockholder approval, shares of undesignated preferred stock; the ability toauthorize undesignated preferred stock makes it possible for our board ofdirectors to issue preferred stock with voting or other rights or preferencesthat could impede the success of any attempt to acquire us.

 

As a Delawarecorporation, we are also subject to certain Delaware anti-takeoverprovisions.  Under Delaware law, acorporation may not engage in a business combination with any holder of 15% ormore of its capital stock unless the holder has held the stock for three yearsor, among other things, the board of directors has approved thetransaction.  Our board of directorscould rely on Delaware law to prevent or delay an acquisition of us.

 

***We may be unableto raise additional capital to fund our future operations, and any futurefinancings or acquisitions could result in substantial dilution to existingstockholders.***

 

Whilewe anticipate our cash balances and any cash from operations, will besufficient to fund our operations for at least the next 12 months, we may needto raise additional capital to fund operations in the future.  There is no guarantee that we will be able toraise additional equity or debt funding when or if it is required.  The terms of any financing, if available,could be unfavorable to us and our stockholders and could result in substantialdilution to the equity and voting interests of our stockholders.  Any failure to obtain financing when and asrequired would have an adverse and material effect on our business,consolidated financial condition and consolidated results of operations.

 

***If securities orindustry analysts do not publish research or publish misleading or unfavorableresearch about our business, our stock price and trading volume could decline.***

 

Thetrading market for our common stock depends in part on the research and reportsthat securities or industry analysts publish about us or our business.  If no or few securities or industry analystscover our company, the trading price for our stock would be negativelyimpacted.  If one or more of the analystswho covers us downgrades our stock or publishes misleading or unfavorableresearch about our business, our stock price would likely decline.  If one or more of these analysts ceasescoverage of our company or fails to publish reports on us regularly, demand forour stock could decrease, which could cause or stock price or trading volume todecline.

 

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**ITEM 2.****             ****UNREGISTEREDSALES OF EQUITY SECURITIES AND USE OF PROCEEDS**

 

None.

 

**ITEM 3.****             ****DEFAULTSUPON SENIOR SECURITIES**

 

None.

 

**ITEM 4.****             ****SUBMISSIONOF MATTERS TO A VOTE OF SECURITY HOLDERS**

 

None

 

**ITEM 5.****             ****OTHERINFORMATION**

 

None

 

**ITEM 6.****             ****EXHIBITS**

 
| **Exhibit  Number** | ** ** | **Exhibit Title**                                                                                                                                                                     |
|---------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 31.01               |       | Certification of Chief Executive Officer pursuant to  Section 302 of the Sarbanes-Oxley Act of 2002.                                                                                  |
| 31.02               |       | Certification of Chief Financial Officer pursuant to  Section 302 of the Sarbanes-Oxley Act of 2002.                                                                                  |
| 32.01               |       | Certification of Chief Executive Officer and Chief  Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted  pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |

 

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**SIGNATURES**

 

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

 
| Dated: May 8, 2009 | OCCAM NETWORKS, INC. |
|-------------------------|----------------------|
|                    |                 |
|                    | (Registrant)         |
|                    |                 |
|                    |                 |
|                    | By:                  | /s/ JEANNE SEELEY |
|                    |                 | Jeanne Seeley |
|                    |                 | Chief Financial Officer |
|                    |                 | (Principal Financial and  Accounting Officer) |

 

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**EXHIBIT INDEX**

 
| **Exhibit  Number** | ** ** | **Exhibit Title**                                                                                                                                                                     |
|---------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 31.01               |       | Certification of Chief Executive Officer pursuant to  Section 302 of the Sarbanes-Oxley Act of 2002.                                                                                  |
| 31.02               |       | Certification of Chief Financial Officer pursuant to  Section 302 of the Sarbanes-Oxley Act of 2002.                                                                                  |
| 32.01               |       | Certification of Chief Executive Officer and Chief  Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted  pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |

 

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