UNITED STATES


SECURITIES AND EXCHANGE COMMISSION


Washington, D.C. 20549





FORM 10-Q





x

Quarterly Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934


For the Quarter Ended June 30, 2010





 ̈

Transition Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934


For the transition period from  to





Commission file number:  0-22340













PALOMAR MEDICAL TECHNOLOGIES, INC.





A Delaware Corporation                                                                            I.R.S. Employer Identification No. 04-3128178





15 Network Drive, Burlington, Massachusetts  01803


Registrant’s telephone number, including area code:  (781) 993-2300





Securities registered pursuant to Section 12(b) of the Act:


Title of each class

Common Stock, $0.01 par value

Preferred Stock Purchase Rights
Name of each exchange on which registered

NASDAQ – Global Select Market





Securities registered pursuant to Section 12(g) of the Act:


None.





Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    YesxNo ̈





Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).


Yes    ̈    No     ̈





Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b(2) of the Exchange Act. (Check one).





Large accelerated filer   ̈Accelerated filer  xNon-accelerated filer   ̈Smaller reporting company  ̈


(Do not check if a smaller


reporting company)





Indicate by check mark if the registrant is a shell company, in Rule 12b(2) of the Exchange Act.    Yes ̈Nox





The number of shares outstanding of the registrant’s common stock as of the close of business on August 3, 2010 was 18,550,977.








Palomar Medical Technologies, Inc. and Subsidiaries


Table of Contents
 Page No.PART I – Financial InformationItem 1.
Financial StatementsUnaudited Condensed Consolidated Balance Sheets as ofJune 30, 2010 and December 31, 2009
3Unaudited Condensed Consolidated Statements of Operations for the periods ended June 30, 2010 and June 30, 2009
4Unaudited Condensed Consolidated Statements of Cash Flows for the periods ended  June 30, 2010 and June 30, 2009
5Notes to Unaudited Condensed Consolidated Financial Statements
6Item 2.
Management’s Discussion and Analysis of Financial Condition and the Results of Operations
13Item 3.
Quantitative and Qualitative Disclosures About Market Risk
20Item 4.
Controls and Procedures
21PART II – Other InformationItem 1.
Legal Proceedings
21Item 1A.
Risk Factors
24Item 2.
Changes in Securities, Use of Proceeds and Issuer Purchases of Securities
24Item 3.
Defaults Upon Senior Securities
24Item 4.
(Removed and Reserved)
24Item 5.
Other Information
24Item 6.
Exhibits
25SIGNATURES

26















2


Palomar Medical Technologies, Inc. and Subsidiaries


Condensed Consolidated Balance Sheets


(Unaudited)






June 30,


December 31,2010


2009AssetsCurrent assetsCash and cash equivalents

$
102,119,967


$
81,948,482Short-term investments


-



25,000,000Total cash, cash equivalents and short-term investments


102,119,967



106,948,482Accounts receivable, net


3,967,009



4,436,219Inventories


11,507,313



11,126,352Other current assets


1,952,838



2,179,233Total current assets


119,547,127



124,690,286Marketable securities, at estimated fair value


2,376,358



4,024,313Property and equipment, net


37,218,190



34,629,410Other assets


219,652



126,087Total assets

$
159,361,327


$
163,470,096Liabilities and Stockholders' EquityCurrent liabilitiesAccounts payable

$
2,794,968


$
2,696,217Accrued liabilities


8,487,928



8,959,679Deferred revenue


3,766,268



5,221,924Total current liabilities


15,049,164



16,877,820Accrued income taxes


2,973,717



2,965,077Total liabilities

$
18,022,881


$
19,842,897Commitments and contingencies (Note 9)Stockholders' equityPreferred stock, $0.01 par value-Authorized - 1,500,000 sharesIssued -  none


-



-Common stock, $0.01 par value-Authorized - 45,000,000 sharesIssued - 18,550,977 and 18,521,045 shares, respectively


185,510



185,211Additional paid-in capital


208,701,598



206,740,492Accumulated other comprehensive loss


(343,362
)


(292,297
)Accumulated deficit


(67,205,300
)


(63,006,207
)Total stockholders' equity

$
141,338,446


$
143,627,199Total liabilities and stockholders’ equity

$
159,361,327


$
163,470,096


See accompanying notes to condensed consolidated financial statements.


3


Palomar Medical Technologies, Inc. and Subsidiaries


Condensed Consolidated Statements of Operations


(Unaudited)





Three Months Ended


Six Months EndedJune 30,


June 30,2010


2009


2010


2009RevenuesProduct revenues

$
9,214,967


$
8,336,298


$
18,382,233


$
16,410,848Service revenues


3,818,265



3,784,558



7,763,135



7,183,562Royalty revenues


1,306,927



1,274,593



2,945,145



2,768,017Funded product development revenues


-



398,467



-



829,600Other revenues


1,250,000



1,250,000



2,500,000



2,500,000Total revenues


15,590,159



15,043,916



31,590,513



29,692,027Costs and expensesCost of product revenues


3,484,575



3,624,178



6,801,768



6,975,427Cost of service revenues


1,298,580



1,642,555



2,953,123



3,515,977Cost of royalty revenues


522,771



509,838



1,178,058



1,107,207Research and development


3,589,269



3,076,501



7,775,069



6,819,968Selling and marketing


4,900,214



4,732,921



9,744,810



9,401,802General and administrative


3,360,348



2,241,311



7,312,031



5,114,557Total costs and expenses


17,155,757



15,827,304



35,764,859



32,934,938Loss from operations


(1,565,598
)


(783,388
)


(4,174,346
)


(3,242,911
)Interest income


90,866



140,447



207,917



333,648Other (expense) income


(191,454
)


376,754



(184,662
)


349,820Loss before income taxes


(1,666,186
)


(266,187
)


(4,151,091
)


(2,559,443
)Provision for (benefit from) income taxes


28,868



(22,265
)


48,002



(901,071
)Net loss

$
(1,695,054
)

$
(243,922
)

$
(4,199,093
)

$
(1,658,372
)Net loss per shareBasic

$
(0.09
)

$
(0.01
)

$
(0.23
)

$
(0.09
)Diluted

$
(0.09
)

$
(0.01
)

$
(0.23
)

$
(0.09
)Weighted average number of shares outstandingBasic


18,536,076



18,049,402



18,528,650



18,054,485Diluted


18,536,076



18,049,402



18,528,650



18,054,485Comprehensive loss:Net loss

$
(1,695,054
)

$
(243,922
)

$
(4,199,093
)

$
(1,658,372
)Unrealized gain (loss) on marketable securities,net of taxes


74,337



325,220



(61,913
)


195,340Foreign currency translation adjustment


99,163



(97,012
)


10,848



(90,990
)Comprehensive loss

$
(1,521,554
)

$
(15,714
)

$
(4,250,158
)

$
(1,554,022
)


See accompanying notes to condensed consolidated financial statements.




4





Palomar Medical Technologies, Inc. and Subsidiaries


Condensed Consolidated Statements of Cash Flows


(Unaudited)







Six Months EndedJune 30,2010


2009Operating activitiesNet loss

$
(4,199,093
)

$
(1,658,372
)Adjustments to reconcile net loss to net cash (used in) from operating activities:Depreciation and amortization


634,525



328,917Stock-based compensation expense


1,912,697



1,614,997Provision for bad debt


18,828



122,871Inventory write-off


78,216



86,822Change in deferred tax asset


-



(1,149,859
)Tax benefit from the exercise of stock options


-



(6,762
)Other non-cash items


74,582



87,455Changes in assets and liabilities:Accounts receivable


438,956



1,033,433Inventories


(483,127
)


3,169,045Other current assets


226,204



135,951Other assets


(54,797
)


2,538Accounts payable


130,697



1,275,075Accrued liabilities


(464,753
)


544,426Accrued income taxes


8,640



73,150Deferred revenue


(1,452,305
)


(1,524,838
)Net cash (used in) from operating activities


(3,130,730
)


4,134,849Investing activitiesPurchases of property and equipment


(3,220,383
)


(9,410,423
)Proceeds from sale of short-term investments


25,000,000



-Proceeds from sale of marketable securities


1,550,000



-Net cash from (used in) investing activities


23,329,617



(9,410,423
)Financing activitiesProceeds from the exercise of stock options and warrants


48,708



108,544Tax benefit from the exercise of stock options


-



6,762Costs incurred related to purchase of stock for treasury


-



(258,491
)Proceeds from borrowings on credit facility


-



20,000,000Payments on borrowings


-



(14,000,000
)Net cash from financing activities


48,708



5,856,815Effect of exchange rate changes on cash and cash equivalents


(76,110
)


33,020Net increase in cash and cash equivalents


20,171,485



614,261Cash and cash equivalents, beginning of the period


81,948,482



122,601,139Cash and cash equivalents, end of the period

$
102,119,967


$
123,215,400Supplemental disclosure of cash flow informationCash paid for income taxes

$
52,000


$
35,000Supplemental noncash investing activitiesUnrealized (loss) gain on marketable securities, net of taxes

$
(61,913
)

$
195,340





See accompanying notes to condensed consolidated financial statements.




5


Palomar Medical Technologies, Inc. and Subsidiaries


Notes to Condensed Consolidated Financial Statements


(Unaudited)





Note 1 –Basis of presentation





The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States for interim information.  The consolidated balance sheet at December 31, 2009 has been derived from the audited balance sheet at that date; however, the accompanying financial statements do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements.  The results of operations for the interim periods shown in this report are not necessarily indicative of expected results for any future interim period or for the entire fiscal year.  We believe that the quarterly information presented includes all adjustments (consisting of normal, recurring adjustments) necessary for a fair presentation in accordance with accounting principles generally accepted in the United States.  The accompanying condensed consolidated financial statements and notes should be read in conjunction with our Form 10-K for the year ended December 31, 2009.





In 2010, we reclassified certain balances within revenues and costs and expenses.  To be consistent with the 2010 presentation, we reclassified certain 2009 balances within revenues and costs and expenses in the accompanying Condensed Consolidated Statements of Operations.  The reclassifications had no impact on previously reported results of operations or cash flow related to operating activities.





There have been no recent accounting pronouncements or changes in accounting pronouncements during the six months ended June 30, 2010, as compared to the recent accounting pronouncements described in the Company’s Form 10-K, that are of significance, or potential significance to the Company.





Note 2 – Stock-based compensation




Stock-based compensation expense recorded was $1.0 million and $0.8 million for the three months ended June 30, 2010 and 2009, respectively and $1.9 million and $1.6 million for the six months ended June 30, 2010 and 2009, respectively.  As of June 30, 2010, there was $5.0 million of unrecognized compensation expense related to non-vested share awards.  The expense is expected to be recognized over a weighted-average period of 1.8 years.





During the three months ended June 30, 2010, we granted 8,000 stock-settled stock appreciation rights.  No other equity awards, including options, warrants, or restricted stock were granted.







Note 3 – Inventories




Inventories are valued at the lower of cost (first-in, first-out method) or market, and include material, labor and manufacturing overhead. At June 30, 2010 and December 31, 2009, inventories consisted of the following:







June 30,


December 31,2010


2009Raw materials

$
4,104,011


$
4,365,150Work in process


1,379,647



361,931Finished goods


6,023,655



6,399,271Total

$
11,507,313


$
11,126,352


6


Note 4 – Property and equipment







Property and equipment are recorded at cost.  Repairs and maintenance costs are expensed as incurred. Depreciation and amortization are provided using the straight-line method over the estimated useful lives of property and equipment.  Land and construction in progress assets are not depreciated.  At June 30, 2010 and December 31, 2009, property and equipment consisted of the following:





June 30,


December 31,

Estimated2010


2009

useful lifeLand

$
10,680,000


$
10,680,000Building


24,292,102



-

39 yearsMachinery and equipment


2,432,865



2,100,331

3-7 yearsFurniture and fixtures


5,312,030



3,364,989

7 yearsLeasehold improvements


575,008



537,648

Shorter of estimated useful life or term of leaseConstruction in progress


-



23,385,61443,292,005



40,068,582Accumulated depreciation


(6,073,815
)


(5,439,172
)Total

$
37,218,190


$
34,629,410





On November 19, 2008, we purchased land for $10.7 million on which we built our new operational facility.  Construction of the building was completed and the building was placed into service during the first quarter of 2010.  We financed the project by using cash on hand.





Note 5 – Warranty costs





We typically offer a one year warranty on our base systems. Warranty coverage provided is for labor and parts necessary to repair the systems during the warranty period. We account for the estimated warranty cost of the standard warranty coverage as a charge to cost of revenue when revenue is recognized. The estimated warranty cost is based on units sold, historical product performance and the cost per repair. We assess the adequacy of the warranty provision and we may adjust this provision if necessary.




The following table provides the detail of the change in our product warranty accrual, which is a component of accrued liabilities on the Condensed Consolidated Balance Sheets as of June 30, 2010 and December 31, 2009:




June 30,


December 31,2010


2009Warranty accrual, beginning of period

$
596,210


$
856,158Charges to cost and expenses relating to new sales


832,098



1,280,301Costs of product warranty claims/change of estimate


(910,895
)


(1,540,249
)Warranty accrual, end of period

$
517,413


$
596,210





Note 6 – Fair Value of Financial Instruments





In September 2006, the Financial Accounting Standards Board (FASB) issued new guidance on fair value measurements.  This guidance defines fair value, establishes a framework for measuring fair value and expands disclosure of fair value measurements.  The guidance applies under other accounting pronouncements that require or permit fair value measurements and accordingly, does not require any new fair value measurements.  This guidance was effective for financial statements issued for fiscal years beginning after November 15, 2007, and we adopted on January 1, 2008.  In February 2008, the FASB issued an update to the fair value measurement guidance.  This guidance permits the delayed application of the fair value measurement guidance for all non-recurring fair value measurements of non-financial assets and non-financial liabilities until fiscal years beginning after November 15, 2008.  The adoption of this guidance had no impact on the Company’s consolidated financial statements.


7





We performed an analysis of our investments held at June 30, 2010 and December 31, 2009 to determine the significance and character of all inputs to their fair value determination.  The standard requires additional disclosures about the inputs used to develop the measurements and the effect of certain measurements on changes in fair value for each reporting period.





The FASB’s fair value measurement guidance establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value into the following three broad categories.


·
Level 1 - Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date.


·
Level 2 - Inputs (other than quoted prices included in Level 1) are either directly or indirectly observable for the asset or liability through correlation with market data at the measurement date and for the duration of the instrument’s anticipated life.


·
Level 3 - Inputs reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the model.





Fair Value on a Recurring Basis





Assets and liabilities measured at fair value on a recurring basis are categorized in the tables below based upon the lowest level of significant input to the valuations.  The following table presents our assets measured at fair value on a recurring basis as of June 30, 2010 and December 31, 2009.




Assets

Fair Value as of June 30, 2010(In thousands)

Level 1
Level 2
Level 3
TotalAuction-rate preferred securities
$  -
$   -
$  1,185
$ 1,185Auction-rate municipal securities
-
-
1,191
1,191Total

$  -
$   -
$  2,376
$ 2,376


Assets

Fair Value as of December 31, 2009(In thousands)

Level 1
Level 2
Level 3
TotalShort-term investments

$  25,000
$   -
$          -
$  25,000Auction-rate preferred securities
-
-
2,622
2,622Auction-rate municipal securities
-
-
1,402
1,402Total

$   25,000
$   -
$  4,024
$  29,024


At June 30, 2010, the amortized cost basis of the auction-rate preferred securities and auction-rate municipal securities were $1.3 million and $1.5 million, respectively.  At December 31, 2009, the amortized cost basis of the auction-rate preferred securities and auction-rate municipal securities were $2.9 million and $1.5 million, respectively.  As described in more detail below, all of our auction-rate securities (ARS) have unrealized losses which have been recorded in accumulated other comprehensive loss.





There is no maturity date of the auction-rate preferred securities while the maturity date for our auction-rate municipal securities is in December 2045.





8


Level 3 Gains and Losses





The table presented below summarizes the change in balance sheet carrying values associated with Level 3 financial instruments for the six months ended June 30, 2010.





Auction-rate


Auction-rate(In thousands)

preferred securities


municipal securities


TotalBalance at December 31, 2009

$
2,622


$
1,402


$
4,024Net payments, purchases and sales


(1,550
)


-



(1,550
)Net transfers in/(out)


-



-



-Gains/(losses)Realized


-



-



-Unrealized


113



(211
)


(98
)Balance at June 30, 2010

$
1,185


$
1,191


$
2,376





All of the above auction-rate securities have been in a continuous unrealized loss position for 12 months or longer.  We continue to receive regular dividends from each of our ARS at current market rates.


Historically, the ARS market was an active and liquid market where we could purchase and sell our ARS on a regular basis through auctions.  As such, we classified our ARS as Level 1 investments in accordance with the FASB’s guidance at December 31, 2007.  Subsequent to December 31, 2007, several of our ARS failed at auction due to a decline in liquidity in the ARS and other capital markets.  We will not be able to access our investments in ARS until future auctions are successful, ARS are called for redemption by the issuers, or until sold in a secondary market.  As all of our investments in ARS currently lack short-term liquidity, we have classified these investments as non-current investments as of June 30, 2010 and December 31, 2009.





The estimated fair value of our holdings of ARS at June 30, 2010 was $2.4 million.  To value our ARS, we determined the present value of the ARS at the balance sheet date by discounting the estimated future cash flows based on a fair value rate of interest and an expected time horizon to liquidity.  We also evaluated the credit rating of the issuer and found them all to be investment grade securities.  There was no change in our valuation method during the three and six month periods ended June 30, 2010 as compared to prior reporting periods.  Our valuation analysis showed that our ARS have nominal credit risk.  The impairment is due to liquidity risk.  Additionally, as of June 30, 2010, we do not intend to sell the ARS, it is not more likely than not that we will be required to sell the ARS before recovery of their amortized cost bases, which may be at maturity, and we expect to recover the full amortized cost basis of these securities.  As a result of our valuation analysis, our investment strategy, recurring dividend stream from these investments, and our strong cash and cash equivalents position, we have determined that the fair value of our ARS was temporarily impaired as of June 30, 2010.





We continue to monitor the market for ARS and consider its impact, if any, on the fair value of our investments.  If current market conditions deteriorate further, we may be required to record additional unrealized losses in accumulated other comprehensive (loss) income.  If the credit rating of the security issuers deteriorates, the anticipated recovery in market values does not occur, or we stop receiving dividends, we may be required to adjust the carrying value of these investments through impairment charges in our Consolidated Statements of Operations.





Note 7 – Net (loss) income per common share





Basic net (loss) income per share was determined by dividing net (loss) income by the weighted average common shares outstanding during the period.  Diluted net (loss) income per share was determined by dividing net (loss) income by the diluted weighted average shares outstanding. Diluted weighted average shares reflect the dilutive effect, if any, of stock options, stock appreciation rights, and warrants based on the treasury stock method.





9


A reconciliation of basic and diluted shares for the three and six months ended June 30, 2010 and 2009 is as follows:





Three Months Ended


Six Months EndedJune 30,


June 30,2010


2009


2010


2009Basic weighted average number of shares outstanding


18,536,076



18,049,402



18,528,650



18,054,485Potential common shares pursuant to stock options, stock appreciation rights and warrants


-



-



-



-Diluted weighted average number of shares outstanding


18,536,076



18,049,402



18,528,650



18,054,485





For the three months ended June 30, 2010 and 2009, approximately a net of 2.6 million and 3.7 million, respectively, weighted average options, stock-settled SARs, and warrants to purchase shares of our common stock were excluded from the computation of diluted earnings per share because the effect of including the options, stock-settled SARs, and warrants would have been antidilutive.





Note 8 – Income Taxes





We provide for income taxes under the liability method in accordance with the FASB’s guidance on accounting for income taxes.  Under this guidance, we can only recognize a deferred tax asset for future benefit of our tax loss, temporary differences and tax credit carry forwards to the extent that it is more likely than not that these assets will be realized.  We consider available evidence, both positive and negative, including historical levels of income, expectations and risks associated with estimates of future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for the valuation allowance.





In evaluating our ability to recover our US and foreign deferred tax assets, we considered all available positive and negative evidence, giving greater weight to the recent current losses, the absence of taxable income in the carry back periods and the uncertainty regarding our ability to project financial results in future periods. We believe that it is more likely than not that the associated deferred tax assets will not be utilized and have established a full valuation allowance.




We establish reserves for uncertain tax positions based on management’s assessment of exposure associated with tax deductions, permanent tax differences and tax credits. The tax reserves are analyzed periodically and adjustments are made, as events occur to warrant adjustment to the reserve. At June 30, 2010, we have $3.0 million of net unrecognized tax benefits, all of which would affect our effective tax rate, if recognized.




We recognize interest and penalties related to uncertain tax positions in income tax expense. As of June 30, 2010, we had approximately $123,000 of accrued interest and penalties related to uncertain tax positions.




The tax years 2006-2009 remain open to examination by the major taxing jurisdictions to which we are subject. We file income tax returns in the U.S. federal jurisdiction, and various state and foreign jurisdictions.




Note 9 – Contingencies





Candela Corporation, Massachusetts Litigation





On August 9, 2006, we commenced an action for patent infringement against Candela Corporation (now Syneron, Inc.) in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief. The complaint alleges Candela’s GentleYAG and GentleLASE systems, which use laser technology for hair removal willfully infringe U.S. Patent No. 5,735,844 (the “’844 patent”), which is exclusively licensed to us by MGH.  Candela answered the complaint denying that its products infringe valid claims of the asserted patent and filing a counterclaim seeking a declaratory judgment that the asserted patent and U.S. Patent No. 5,595,568 (the “’568 patent”) are invalid and not infringed.  We filed a reply denying the material allegations of the counterclaims.





10
 We filed an amended complaint on February 16, 2007 to add MGH as a plaintiff.  In addition, we further alleged that Candela’s GentleMAX system willfully infringes the ‘844 patent and that Candela’s Light Station system willfully infringes both the ‘844 and ‘568 patents.  On February 16, 2007, Candela filed an amended answer to our complaint adding allegations of inequitable conduct, double patenting and violation of Massachusetts General Laws Chapter 93A.  On February 28, 2007, we filed a response to Candela’s amended complaint pointing out many weaknesses in Candela’s allegations.  A claim construction hearing, sometimes called a “Markman Hearing”, was held August 2, 2007, and we received what we consider to be a favorable Markman ruling on November 9, 2007.





On November 17, 2008, the Judge stayed the lawsuit pending the outcome of reexamination procedures requested by a third party on both the ‘844 and ‘568 patents in the United States Patent and Trademark Office (the “Patent Office”).  On December 9, 2008, Candela also filed requests for reexamination of both patents.  Generally, a reexamination proceeding is one which re-opens patent prosecution to ensure that the claims in an issued patent are valid over prior art references.  On January 16, 2009, we filed a preliminary amendment to the ‘844 patent adding new claims 33-59 which depend from claim 32 and a preliminary amendment to the ‘568 patent adding new claims 23 and 24 which depend from claim 1. On June 9, 2009, the Patent Office issued an office action confirming the validity of all claims of the ‘844 patent except claims 12-14.  Rejecting Candela's and the other company's arguments to the contrary, the Patent Office confirmed that claims 1-3, 6-8, 11, 17-20, 27, 28, 30, 32 of the '844 patent are valid and patentable. The Patent Office also confirmed new claims 33-59 as valid and patentable.  The Patent Office rejected only independent claim 12 and related dependent claims 13-14 of the ‘844 patent as unpatentable.  We cancelled claims 12-14 from the '844 patent in order to expedite the reexamination proceeding. Claims 4, 5, 9, 10, 15, 16, 21-26, 29 and 31 were not under reexamination. Consequently, all currently pending claims were found valid by the Patent Office.  On November 18, 2009, the Patent Office issued a Reexamination Certificate for the ‘844 patent that closed the reexamination proceeding on the ‘844 patent.





On June 19, 2009, we filed a motion to lift the stay and reopen the lawsuit.  Because Candela has discontinued products which infringe the ‘568 patent, we dropped our claims of infringement of the ‘568 patent from the lawsuit and we agreed to a covenant not to sue Candela for past infringement under the ‘568 patent.  On July 13, 2009, Candela filed their opposition to our motion to lift the stay, and on July 17, 2009, we filed our response to their opposition.  On January 5, 2010 the Judge lifted the stay. Expert discovery is scheduled to be completed in the third quarter of 2010 and the Judge has set September 14, 2010 as the date for a hearing on any dispositive motions. A trial date has not been set.





On August 10, 2006, Candela Corporation (now Syneron, Inc.) commenced an action for patent infringement against us in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief.  The complaint alleged that our StarLux System with the LuxV handpiece willfully infringes U.S. Patent No. 6,743,222 (the “’222 patent”) which is directed to acne treatment, that our QYAG5 System willfully infringes U.S. Patent No. 5,312,395 which is directed to treatment of pigmented lesions, and that our StarLux System with the LuxG handpiece willfully infringes U.S. Patent No. 6,659,999 which is directed to wrinkle treatment.  On October 25, 2006, Candela filed an amended complaint which did not include U.S. Patent No. 6,659,999.  Consequently, Candela no longer alleges in this lawsuit that the StarLux System with LuxG handpiece infringes its patents. With regard to the two remaining patents, Candela is seeking to enjoin us from selling these products in the United States if we are found to infringe the patents, and to obtain compensatory and treble damages, reasonable costs and attorney’s fees, and other relief as the court deems just and proper. On October 30, 2006, we answered the complaint denying that our products infringe the asserted patents and filing counterclaims seeking declaratory judgments that the asserted patents are invalid and not infringed.  In addition, with regard to U.S. Patent No. 5,312,395, we filed a counterclaim of inequitable conduct.





11


In February 2008, we filed a request for reexamination and then an amended request for reexamination of Candela's ‘222 patent with the Patent Office.  In our request, we argued that Candela's ‘222 patent is unpatentable over our own United States Patent No. 6,605,080 alone or in combination with other prior art.  About the same time, we filed a motion to stay all proceedings in this action related to the ‘222 patent pending resolution of the amended request for reexamination of the ‘222 patent.  In March 2008, the Patent Office granted our request for reexamination of the ‘222 patent.   On June 11, 2008, the Court ordered the parties to report back to the Court after the Patent Office made its decision in the reexamination of the ‘222 patent, after which a claim construction hearing (i.e., a Markman Hearing) would be scheduled for both the ‘222 and ‘395 patents. On June 12, 2008, the parties informed the Court that the total time the reexamination will remain pending is not known.  On January 19, 2010, the Patent Office issued a Notice of Intent to Issue Ex Parte Reexamination Certificate for the ‘222 patent which will close the reexamination proceeding on the ‘222 patent. When this lawsuit is re-started, we will continue to defend the action vigorously and believe that we have meritorious defenses of non-infringement, invalidity and inequitable conduct. However, litigation is unpredictable and we may not prevail in successfully defending or asserting our position. If we do not prevail, we may be ordered to pay substantial damages for past sales and an ongoing royalty for future sales of products found to infringe in the United States. We could also be ordered to stop selling any products in the United States that are found to infringe.





Alma Lasers, Inc., Delaware Litigation





On September 11, 2008, Alma Lasers, Inc. filed a complaint requesting a declaratory judgment that our fractional patent, U.S. Patent No. 6,997,923, is not infringed by Alma's products and is invalid over prior art.  Alma served this lawsuit on us on November 6, 2008, and on November 21, 2008, we filed an answer which denied Alma's allegations that the patent is invalid and not infringed.  We also filed a counterclaim accusing Alma's Pixel C02 Omnifit Fractional C02 Handpiece and Pixel C02 Fractional C02 Skin Resurfacing System of infringing the patent.  On December 16, 2008, upon the request of both parties, a mediation conference was scheduled for June 30, 2009 before Magistrate Judge Mary Pat Thynge.  On December 18, 2008, upon the request of both parties, the Judge presiding over the lawsuit, stayed the lawsuit and later closed the lawsuit pending the outcome of the mediation.  Due to unforeseen circumstances, the mediation scheduled for June 30, 2009 was postponed until October 13, 2009.  Following our request, Magistrate Judge Mary Pat Thynge cancelled the mediation on October 6, 2009.  By letter dated October 13, 2009, we asked presiding Judge Farnan to re-open the case.  On December 28, 2009, Alma filed a First Amended Complaint to add a claim that U.S. Patent No. 6,997,923 is unenforceable due to inequitable conduct.  On January 11, 2010, we filed our Amended Answer and Counterclaim to Alma’s First Amended Complaint denying Alma’s allegation of inequitable conduct. On March 4, 2010 the parties filed a joint stipulated order of dismissal requesting that the court dismiss this action, including all claims and counterclaims, in its entirety without prejudice, with the parties agreeing that any future litigation between them over U.S. Patent No. 6,997,923, any patent claiming priority (either directly or indirectly) thereto, and/or any patents relating to fractional technology, shall be commenced in this Court.





Syneron, Inc., Massachusetts Litigation





On November 14, 2008, we commenced an action for patent infringement against Syneron, Inc. in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief. The complaint alleges Syneron's eLight, eMax, eLaser, Aurora DS, Polaris DS, Comet and Galaxy Systems, which use light-based technology for hair removal, willfully infringe the ‘568 patent and the ‘844 patent, which are exclusively licensed to us by MGH.  In March 2009, we served Syneron with this suit. On April 30, 2009, the parties filed a stipulation to stay the lawsuit pending the outcome of the reexaminations of the ‘568 patent and the ‘844 patent.





On June 9, 2009, the Patent Office issued an office action confirming the validity of all claims of the ‘844 patent except claims 12-14.  The Patent Office confirmed that claims 1-3, 6-8, 11, 17-20, 27, 28, 30, 32 of the '844 patent are valid and patentable. The Patent Office also confirmed new claims 33-59 as valid and patentable.  The Patent Office rejected only independent claim 12 and related dependent claims 13-14 of the ‘844 patent as unpatentable.  We cancelled claims 12-14 from the '844 patent in order to expedite the reexamination proceeding. Claims 4, 5, 9, 10, 15, 16, 21-26, 29 and 31 were not under reexamination. Consequently, all currently pending claims were found valid by the Patent Office.  On November 18, 2009, the Patent Office issued a Reexamination Certificate for the ‘844 patent which closed the reexamination proceeding on the ‘844 patent.





12


On October 28, 2009, the Patent Office issued a Reexamination Certificate for the ‘568 patent which closed the reexamination proceeding on the ‘568 patent. The Patent Office confirmed the validity and patentability of all the claims of the ‘568 patent including new claims 23 and 24.





On September 23, 2009, we filed a motion to lift the stay and reopen the lawsuit.  On October 6, 2009, Syneron filed their opposition to our motion to lift the stay, and on October 9, 2009, we filed our response to their opposition.    On November 13, 2009, the Judge re-opened the case and a scheduling hearing took place on January 6, 2010.  No trial date has yet been set.  The parties are in discovery.





Tria Beauty, Inc., Massachusetts Litigation





On June 24, 2009, we commenced an action for patent infringement against Tria Beauty, Inc. (previously named Spectragenics, Inc.), in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief. The complaint alleged that the Tria System, which uses light-based technology for hair removal, willfully infringes the ‘844 patent, which is exclusively licensed to us by MGH.  Tria answered the complaint denying that its products infringe valid claims of the asserted patent and filing a counterclaim seeking a declaratory judgment that the asserted patent is not infringed, is invalid and not enforceable.  We filed a reply denying the material allegations of the counterclaims.  On September 21, 2009, following successful re-examination of the ‘568 patent, we filed a motion to amend our complaint to add a claim for willful infringement of the ‘568 patent, which is also exclusively licensed to us by MGH.  Our motion also included adding MGH as a plaintiff in the lawsuit.  Tria did not oppose the motion and the Judge granted the motion on October 8, 2009.  No trial date has yet been set.  The parties are in discovery.





Item 2.       Management’s Discussion and Analysis of Financial Condition and Results of Operations





The following discussion contains forward-looking statements, which involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth previously under the caption “Risk Factors” in our Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 5, 2010. This Management’s Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with our consolidated financial statements and related notes included elsewhere in this report.





Critical accounting policies





The discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. On an on-going basis, we evaluate our estimates, including those related to revenue recognition, bad debts, inventories, investments, warranty obligations, contingencies and income taxes. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. A discussion of our critical accounting policies and the related judgments and estimates affecting the preparation of our consolidated financial statements is included in the Annual Report on our Form 10-K fiscal year 2009.  There have been no material changes to our critical accounting policies as of June 30, 2010.





13


Recently issued accounting standards





There have been no recent accounting pronouncements or changes in accounting pronouncements during the six months ended June 30, 2010, as compared to the recent accounting pronouncements described in the Company’s Form 10-K, that are of significance, or potential significance to the Company.





Overview




We are a global medical device company engaged in research, development, manufacturing and distribution of proprietary light-based systems for medical and cosmetic treatments. Since our inception, we have been able to develop a differentiated product mix of light-based systems for various treatments through our research and development as well as with our partnerships throughout the world. We are continually developing and testing new indications to further the advancement in light-based treatments.





Our corporate headquarters and United States operations are located in Burlington, Massachusetts, where we conduct our manufacturing, warehousing, research and development, regulatory, sales, customer service, marketing and administrative activities.  In the United States, Australia, Canada, and Japan, we market, sell and service our products primarily through our direct sales force and customer service employees.  In the rest of the world, sales are generally made through our worldwide distribution network in over 50 countries.  During the second quarter of 2010, we opened an office in Japan which is responsible for the sale and service of our products in Japan.


During the second quarter of 2010, we began shipping units of our new Artisan System which offers key skin resurfacing and skin rejuvenation technology in one comprehensive system.  The Artisan empowers aesthetic practitioners with the ability to treat each discrete sign of aging and other undesirable skin conditions using the most appropriate technology.




Results of operations


Revenues for the quarter ended June 30, 2010 were $15.6 million, which represents a 4 percent increase over the $15.0 million reported in the second quarter of 2009.  Product and service revenues increased to $13.0 million, an 8 percent increase over the $12.1 million in the second quarter of 2009.  Second quarter gross margin from product and service revenues was 63 percent, an increase over the 57 percent in the second quarter of 2009.  Loss before income taxes for the second quarter ended June 30, 2010 was $1.7 million, which included $0.7 million in patent litigation expenses and a $1.0 million non-cash stock-based compensation expense.




































14





The following table contains selected income statement information, which serves as the basis of the discussion of our results of operations for the three and six months ended June 30, 2010 and 2009, respectively (in thousands, except for percentages):







Three Months Ended June 30,2010


2009As a % of





As a % ofTotal





Total


ChangeAmount


Revenue


Amount


Revenue


$



%RevenuesProduct revenues

$
9,215



59
%

$
8,336



55
%

$
879



11
%Service revenues


3,818



24
%


3,785



25
%


33



1
%Royalty revenues


1,307



8
%


1,275



8
%


32



3
%Funded product development revenues


-



-
%


398



3
%


(398
)


(100
%)Other revenues


1,250



8
%


1,250



8
%


-



-
%Total revenues


15,590



100
%


15,044



100
%


546



4
%Costs and expensesCost of product revenues


3,485



22
%


3,624



24
%


(139
)


(4
%)Cost of service revenues


1,299



8
%


1,643



11
%


(344
)


(21
%)Cost of royalty revenues


523



3
%


510



3
%


13



3
%Research and development


3,589



23
%


3,076



20
%


513



17
%Selling and marketing


4,900



31
%


4,733



31
%


167



4
%General and administrative


3,360



22
%


2,241



15
%


1,119



50
%Total costs and expenses


17,156



110
%


15,827



105
%


1,329



8
%Loss from operations


(1,566
)


(10
%)


(783
)


(5
%)


783



100
%Interest income


91



1
%


140



1
%


(49
)


(35
%)Other (expense) income


(191
)


(1
%)


377



3
%


(568
)


(151
%)Loss before income taxes


(1,666
)


(11
%)


(266
)


(2
%)


1,400



526
%Provision for (benefit from) income taxes
29



-
%


(22
)


-
%


51



232
%Net loss

$
(1,695
)


(11
%)

$
(244
)


(2
%)

$
1,451



595
%











15





Six Months Ended June 30,2010


2009As a % of





As a % ofTotal





Total


ChangeAmount


Revenue


Amount


Revenue


$



%RevenuesProduct revenues

$
18,382



58
%

$
16,411



55
%

$
1,971



12
%Service revenues


7,763



25
%


7,183



24
%


580



8
%Royalty revenues


2,945



9
%


2,768



9
%


177



6
%Funded product development revenues


-



-
%


830



3
%


(830
)


(100
%)Other revenues


2,500



8
%


2,500



8
%


-



-
%Total revenues


31,590



100
%


29,692



100
%


1,898



6
%Costs and expensesCost of product revenues


6,802



22
%


6,975



23
%


(173
)


(2
%)Cost of service revenues


2,953



9
%


3,516



12
%


(563
)


(16
%)Cost of royalty revenues


1,178



4
%


1,107



4
%


71



6
%Research and development


7,775



25
%


6,820



23
%


955



14
%Selling and marketing


9,745



31
%


9,402



32
%


343



4
%General and administrative


7,312



23
%


5,115



17
%


2,197



43
%Total costs and expenses


35,765



113
%


32,935



111
%


2,830



9
%Loss from operations


(4,175
)


(13
%)


(3,243
)


(11
%)


932



29
%Interest income


208



1
%


334



1
%


(126
)


(38
%)Other (expense) income


(184
)


(1
%)


350



1
%


(534
)


(153
%)Loss before income taxes


(4,151
)


(13
%)


(2,559
)


(9
%)


(1,592
)


62
%Provision for (benefit from) income taxes
48



-
%


(901
)


(3
%)


949



105
%Net loss

$
(4,199
)


(13
%)

$
(1,658
)


(6
%)

$
2,541



153
%


Product revenues.  During the first three and six months of fiscal 2010, our product revenues increased 11% and 12%, respectively, as compared to the corresponding periods in the prior year, primarily due to increases in revenues from sales of our StarLux Laser and Pulsed Light Systems, including a base unit and multiple, optional handpieces and the Aspire body sculpting system.




Service revenues.  Service revenues are primarily comprised of revenue generated from our service organization to provide ongoing service, sales of replacement handpieces, sales of consumables and accessories and repair of our products. During the first three and six months of fiscal 2010, service revenues increased 1% and 8%, respectively,  as compared to the corresponding periods in the prior year, primarily in sales from replacement handpieces and sales of consumables and accessories.




The following table sets forth, for the periods indicated, information about our total product and service revenues, by geographic region:




Three Months Ended

Six Months EndedJune 30,

June 30,2010

2009

2010

2009North America
66%

60%

61%

59%Europe
17%

16%

20%

18%South and Central America
5%

6%

7%

7%Australia
6%

9%

5%

6%Asia/Pacific Rim
2%

5%

4%

6%Other
4%

4%

3%

4%Total Product and Service Revenues
100%

100%

100%

100%





Royalty revenues.  Royalty revenues increased for the three and six months ended June 30, 2010 by 3% and 6%, respectively, as compared to the corresponding periods in the prior year.  The increase is attributed to an increase in on-going royalty payments from our licensees.





16


Funded product development revenues.  Funded product development revenues decreased during the three and six months ended June 30, 2010 as compared to the same periods in 2009. This decrease in funded product development revenues is directly related to the termination of our Joint Development and License Agreement with Johnson & Johnson Consumer Companies, Inc. in the third quarter of 2009.





Other revenues.  For the three months ended June 30, 2010 and 2009, we recognized $1.25 million of other revenues, consisting of quarterly payments relating to a License Agreement with The Procter & Gamble Company.  For the six months ended June 30, 2010 and 2009, we recognized $2.5 million of other revenues relating to the License Agreement.  As of June 30, 2010 and December 31, 2009, we deferred $0 and $1.25 million, respectively, of advance payments received from Procter & Gamble for which services were not yet provided. These advance payments were included in deferred revenue for the period ended December 31, 2009.





Cost of product revenues. For the three months ended June 30, 2010, our cost of product revenues as a percentage of total revenues was 22% as compared to 24% in the corresponding period in 2009.  For the six months ended June 30, 2010 and 2009, our cost of product revenues as a percentage of total revenues was 22% and 23%, respectively. The decrease as a percentage of total revenues is due to higher product sales volume which resulted in higher overhead absorption as well as a shift in product revenues toward North American sales where we sell our product through a direct sales force instead of through distributors at fixed transfer prices.





Cost of service revenues.  For the three months ended June 30, 2010, our cost of service revenues as a percentage of total revenues was 8% as compared to 11% in the corresponding period in 2009. For the six months ended June 30, 2010 and 2009, our cost of service revenues as a percentage of total revenues was 9% and 12%, respectively. The decrease is due in part to the improved absorption of fixed service costs and the continued growth of service contract revenue. We have been able to convert a high percentage of our domestic installed base to service contracts upon the expiration of the warranty periods. In addition, warranty related expenses have decreased due to lower failure rates in certain of our products.


Cost of royalty revenues. The cost of royalty revenues increased for the three and six months ended June 30, 2010 in comparison to the same periods in 2009.  This increase is attributed to higher on-going royalty payments from our licensees.  As a percentage of royalty revenues, the cost of royalty revenues was consistent at 40% in accordance with our license agreement with Massachusetts General Hospital in comparison to the same periods in 2009.





Research and development expense. For the three and six months ended June 30, 2010, research and development expenses increased 17% and 14%, respectively, as compared to the corresponding periods in the prior year. Research and development expenses relating to our professional business decreased by 6% and 5%, respectively, for the three and six months ended June 30, 2010, as compared to the same periods in the prior year. Research expenses relating to our professional business include internal research and development projects relating to the introduction of new products, enhancements to our current line of products as well as research and development overhead.  Research and development expense relating to our consumer business increased by 91% and 63%, respectively, for the three and six months ended June 30, 2010 as compared to the same periods in 2009. This increase in research and development expense related to our consumer business include increases in payroll and payroll related expense, materials, consultants, and other overhead expenses related directly to our consumer products as compared to the same periods in 2009.





Selling and marketing expense.  For both the three and six months ended June 30, 2010, selling and marketing expenses increased 4% as compared to the corresponding periods in the prior year.  Selling and marketing expenses relating to our professional business decreased 5% and 4%, respectively, for the three and six months ended June 30, 2010 as compared to the same periods in 2009.  This decrease was primarily due to incurring slightly lower expenses related to trade shows and workshops and distributor and third-party commissions.  Partially offsetting these decreases were higher stock-based compensation charges.  Contributing to our overall increase in selling and marketing expenses in 2010 were our expenses related to our consumer business.  We did not incur any sales and marketing expenses related to our consumer business in the first six months of 2009.





17


General and administrative expense. For the three and six months ended June 30, 2010, general and administrative expenses increased 50% and 43%, respectively, as compared to the corresponding periods in the prior year primarily due to increases in legal expenses, incentive compensation, stock-based compensation expense, and general overhead expenses.  Additionally, for the six months ended June 30, 2010, general and administrative expenses increased due to incentive compensation expense and rent expense. The rent increase charge during the first quarter of 2010 was related to the write-off of our remaining lease obligation at our old facility.





Interest income. Interest income decreased for the three and six months ended June 30, 2010 as compared to the corresponding periods in the prior year primarily from lower cash and cash equivalent balances and lower interest rates.  The decline in our cash and cash equivalent balances is primarily from costs associated with the construction of our new operational facility in 2009.





Other (expense) income.  Other (expense) income for the three and six months ended June 30, 2010 and 2009 includes the foreign exchange (loss) gain resulting from transactions in currencies other than the U.S. dollar.





Provision for (benefit from) income taxes.  Our effective tax rate was 1.2% and (35.2%) for the six months ended June 30, 2010 and 2009, respectively.  In 2010, our effective tax rate was less than the combined federal and state statutory rates primarily due to an increase in the valuation allowance.





Liquidity and capital resources




The following table sets forth, for the periods indicated, a year over year comparison of key components of our liquidity and capital resources (in thousands):


Six months ended

June 30,

Change2010

2009

$
%Cash flows (used in) from operating activities

$
(3,131
)
$
4,135

(7,266
)
(176%
)Cash flows from (used in) investing activities


23,330


(9,410
)
32,740

348%Cash flows from financing activities


49


5,857

(5,808
)
(99%
)Capital expenditures

$
3,220

$
9,410

(6,190
)
(66%
)







Additionally, our cash and cash equivalents, short-term investments, accounts receivable, inventories, working capital and marketable securities, at estimated fair value are shown below for the periods indicated (in thousands).




June 30,

December 31,

Change2010

2009

$
%Cash and cash equivalents
$
102,120
$
81,948

20,172

25
%Short-term investments

-

25,000

(25,000
)
(100
%)Accounts receivable, net

3,967

4,436

(469
)
(11
%)Inventories, net

11,507

11,126

381

3
%Working capital

104,498

107,812

(3,314
)
(3
%)Marketable securities, at estimated fair value

2,376

4,024

(1,648
)
(41
%)





We believe that our current cash balances and expected future cash flows will be sufficient to meet our anticipated cash needs for working capital, capital expenditures and other activities for at least the next twelve months.





At June 30, 2010, we held $2.4 million in auction-rate securities (ARS). The ARS we invest in are high quality securities, none of which are mortgage-backed.  At December 31, 2007, because of the short-term nature of our investment in these securities, they were classified as available-for-sale and included in short-term investments on our consolidated balance sheets.  Subsequent to December 31, 2007, our securities failed at auction due to a decline in liquidity in the ARS and other capital markets.  We will not be able to access our investments in ARS until future auctions are successful, ARS are called for redemption by the issuers, or until sold in a secondary market.  As our investments in ARS currently lack short-term liquidity, we have reclassified these investments as non-current as of June 30, 2010.  In the six months ended June 30, 2010, we sold $1.6 million of the ARS held at December 31, 2009.




18


We have determined that the fair value of our ARS was temporarily impaired as of June 30, 2010.  For the three months ended June 30, 2010, we marked to market our ARS and recorded an unrealized gain of $74,000, net of taxes in accumulated other comprehensive (loss) income in stockholder’s equity to reflect the temporary impairment of our ARS.  The recovery of these investments is based upon market factors which are not within our control.  As of June 30, 2010, we do not intend to sell the ARS and it is not more likely than not that we will be required to sell the ARS before recovery of their amortized cost bases, which may be at maturity.




Cash flows from operating activities for the six months ended June 30, 2010, decreased compared to the same period in 2009. This decrease in operating activity cash flows reflects an increase in working capital requirements, an increase in net loss, offset by an increase in depreciation and amortization and an increase in stock-based compensation expense in the first six months of 2010, compared to the same period in 2009.  Cash flows used in investing activities increased for the six months ended June 30, 2010, compared to the same period in 2009. The increase reflects higher sales of marketable securities and short-term investments over the same period in 2009, offset by lower purchases of property and equipment.  Cash flows from financing activities decreased for the six month period ended June 30, 2010, compared to the same period in 2009. This decrease was primarily due to a decrease in borrowings.




We anticipate that capital expenditures relating to machinery and equipment, furniture and fixtures, and building improvements for the remainder of 2010 will total approximately $600,000. We expect to finance these expenditures with cash on hand.




On August 13, 2007, our Board of Directors approved a stock repurchase program under which our management is authorized to repurchase up to one million shares of our common stock.  The timing and actual number of shares purchased will depend on a variety of factors such as price, corporate and regulatory requirements, alternative investment opportunities and other market conditions.  Stock repurchases under this program, if any, will be made using our cash resources, and may be commenced or suspended at any time or from time to time at management’s discretion without prior notice.





Off-balance sheet arrangements





We do not participate in transactions that generate relationships with unconsolidated entities or financial partnerships, such as entities often referred to as variable interest or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes. As of June 30, 2010, we were not involved in any unconsolidated transactions.





Contractual obligations





We are a party to three patent license agreements with Massachusetts General Hospital whereby we are obligated to pay royalties to Massachusetts General Hospital for sales of certain products as well as a percentage of royalties received from third parties.  Royalty expense for the three and six months ended June 30, 2010 totaled approximately $0.6 million and $1.4 million, respectively.




For more information, please see the Amended and Restated License Agreement (MGH Case Nos. 783, 912, 2100), the License Agreement (MGH Case No. 2057) and the License Agreement (MGH Case No. 1316) filed as Exhibits 10.1, 10.2, and 10.3 to our Current Report on Form 8-K filed on March 20, 2008.




19


We have obligations related to the adoption of ASC Topic 740, “Accounting for Income Taxes”(ASC 740). Further information about changes in these obligations can be found in Note 8.





We are obligated to make future payments under various contracts, including non-cancelable inventory purchase commitments and our operating lease relating to our recently vacated Burlington, Massachusetts manufacturing, research and development and administrative offices.





On November 19, 2008, we purchased land for $10.7 million on which we built our new operational facility.  Construction of the building was completed and the building was placed in service during the first quarter of 2010.  We financed the project by using cash on hand. We vacated our old facility during the first quarter of 2010 and incurred a charge of $1.2 million relating to the write-off of our remaining lease obligation.





The following table summarizes our estimated contractual cash obligations as of June 30, 2010, excluding royalty and employment obligations because they are variable and/or subject to uncertain timing (in thousands):





Payments due by periodTotal

Less than

1 year

1 - 3

Years

4 - 5

Years
After 5

YearsOperating leases

$
313


$
179


$
134


$
-


$
-Purchase commitments


6,204



6,204



-



-



-Total contractual cash obligations

$
6,517


$
6,383


$
134


$
-


$
-





Item 3. Quantitative and qualitative disclosures about market risk





Market risk is the potential loss arising from adverse changes in market rates and prices, such as foreign currency exchange rates, interest rates and a decline in the stock market. The current turbulence in the U.S. and global financial markets has caused a decline in stock values across all industries. We are exposed to market risks related to changes in interest rates and foreign currency exchange rates.





Our investment portfolio of cash equivalents, corporate preferred securities, and municipal debt securities is subject to interest rate fluctuations, but we believe this risk is immaterial because of the historically short-term nature of these investments.  At June 30, 2010, we held $2.4 million in auction-rate securities (ARS). The ARS we invest in are high quality securities, none of which are mortgage-backed.  At December 31, 2007, because of the short-term nature of our investment in these securities, they were classified as available-for-sale and included in short-term investments on our consolidated balance sheets.  Subsequent to December 31, 2007, our securities failed at auction due to a decline in liquidity in the ARS and other capital markets.  We will not be able to access our investments in ARS until future auctions are successful, ARS are called for redemption by the issuers, or until sold in a secondary market.  As our investments in ARS currently lack short-term liquidity, we have reclassified these investments as non-current as of June 30, 2010.  In the six months ended June 30, 2010, we sold $1.6 million of the ARS held at December 31, 2009. The recovery of the remaining $2.4 million ARS held is based upon market factors which are not within our control.





Our international subsidiaries in The Netherlands, Australia and Japan conduct business in both local and foreign currencies and therefore, we are exposed to foreign currency exchange risk resulting from fluctuations in foreign currencies. This risk could adversely impact our results and financial condition.  We have not entered into any foreign currency exchange and option contracts to reduce our exposure to foreign currency exchange risk and the corresponding variability in operating results as a result of fluctuations in foreign currency exchange rates.





20


Item 4.Controls and procedures





Under the direction of the principal executive officer and principal financial officer, we have evaluated the effectiveness of our disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of June 30, 2010. Based on that evaluation, we have concluded that our disclosure controls and procedures were effective.





The Company’s management, including the CEO and CFO, does not expect that our disclosure controls or internal controls over financial reporting will prevent all errors and all fraud.  A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met.  Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs.  Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected.  These inherent limitations include the realities that judgments in decision making can be faulty and that individual acts of some persons, by collusion of two or more people, or by management override of the controls.  The design of any system of controls is based in part on certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions.  Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures.  Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.





There were no significant changes in our internal controls over financial reporting or in other factors that could significantly affect these controls during the quarter ended June 30, 2010, including any corrective actions with regard to significant deficiencies and material weaknesses.





PART II – Other information





Item 1.    Legal proceedings





Candela Corporation, Massachusetts Litigation





On August 9, 2006, we commenced an action for patent infringement against Candela Corporation (now Syneron, Inc.) in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief. The complaint alleges Candela’s GentleYAG and GentleLASE systems, which use laser technology for hair removal willfully infringe U.S. Patent No. 5,735,844 (the “’844 patent”), which is exclusively licensed to us by MGH.  Candela answered the complaint denying that its products infringe valid claims of the asserted patent and filing a counterclaim seeking a declaratory judgment that the asserted patent and U.S. Patent No. 5,595,568 (the “’568 patent”) are invalid and not infringed.  We filed a reply denying the material allegations of the counterclaims.





We filed an amended complaint on February 16, 2007 to add MGH as a plaintiff.  In addition, we further alleged that Candela’s GentleMAX system willfully infringes the ‘844 patent and that Candela’s Light Station system willfully infringes both the ‘844 and ‘568 patents.  On February 16, 2007, Candela filed an amended answer to our complaint adding allegations of inequitable conduct, double patenting and violation of Massachusetts General Laws Chapter 93A.  On February 28, 2007, we filed a response to Candela’s amended complaint pointing out many weaknesses in Candela’s allegations.  A claim construction hearing, sometimes called a “Markman Hearing”, was held August 2, 2007, and we received what we consider to be a favorable Markman ruling on November 9, 2007.





21


On November 17, 2008, the Judge stayed the lawsuit pending the outcome of reexamination procedures requested by a third party on both the ‘844 and ‘568 patents in the United States Patent and Trademark Office (the “Patent Office”).  On December 9, 2008, Candela also filed requests for reexamination of both patents.  Generally, a reexamination proceeding is one which re-opens patent prosecution to ensure that the claims in an issued patent are valid over prior art references.  On January 16, 2009, we filed a preliminary amendment to the ‘844 patent adding new claims 33-59 which depend from claim 32 and a preliminary amendment to the ‘568 patent adding new claims 23 and 24 which depend from claim 1. On June 9, 2009, the Patent Office issued an office action confirming the validity of all claims of the ‘844 patent except claims 12-14.  Rejecting Candela's and the other company's arguments to the contrary, the Patent Office confirmed that claims 1-3, 6-8, 11, 17-20, 27, 28, 30, 32 of the '844 patent are valid and patentable. The Patent Office also confirmed new claims 33-59 as valid and patentable.  The Patent Office rejected only independent claim 12 and related dependent claims 13-14 of the ‘844 patent as unpatentable.  We cancelled claims 12-14 from the '844 patent in order to expedite the reexamination proceeding. Claims 4, 5, 9, 10, 15, 16, 21-26, 29 and 31 were not under reexamination. Consequently, all currently pending claims were found valid by the Patent Office.  On November 18, 2009, the Patent Office issued a Reexamination Certificate for the ‘844 patent that closed the reexamination proceeding on the ‘844 patent.





On June 19, 2009, we filed a motion to lift the stay and reopen the lawsuit.  Because Candela has discontinued products which infringe the ‘568 patent, we dropped our claims of infringement of the ‘568 patent from the lawsuit and we agreed to a covenant not to sue Candela for past infringement under the ‘568 patent.  On July 13, 2009, Candela filed their opposition to our motion to lift the stay, and on July 17, 2009, we filed our response to their opposition.  On January 5, 2010 the Judge lifted the stay. Expert discovery is scheduled to be completed in the third quarter of 2010 and the Judge has set September 14, 2010 as the date for a hearing on any dispositive motions. A trial date has not been set.





On August 10, 2006, Candela Corporation (now Syneron, Inc.) commenced an action for patent infringement against us in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief.  The complaint alleged that our StarLux System with the LuxV handpiece willfully infringes U.S. Patent No. 6,743,222 (the “’222 patent”) which is directed to acne treatment, that our QYAG5 System willfully infringes U.S. Patent No. 5,312,395 which is directed to treatment of pigmented lesions, and that our StarLux System with the LuxG handpiece willfully infringes U.S. Patent No. 6,659,999 which is directed to wrinkle treatment.  On October 25, 2006, Candela filed an amended complaint which did not include U.S. Patent No. 6,659,999.  Consequently, Candela no longer alleges in this lawsuit that the StarLux System with LuxG handpiece infringes its patents. With regard to the two remaining patents, Candela is seeking to enjoin us from selling these products in the United States if we are found to infringe the patents, and to obtain compensatory and treble damages, reasonable costs and attorney’s fees, and other relief as the court deems just and proper. On October 30, 2006, we answered the complaint denying that our products infringe the asserted patents and filing counterclaims seeking declaratory judgments that the asserted patents are invalid and not infringed.  In addition, with regard to U.S. Patent No. 5,312,395, we filed a counterclaim of inequitable conduct.





In February 2008, we filed a request for reexamination and then an amended request for reexamination of Candela's ‘222 patent with the Patent Office.  In our request, we argued that Candela's ‘222 patent is unpatentable over our own United States Patent No. 6,605,080 alone or in combination with other prior art.  About the same time, we filed a motion to stay all proceedings in this action related to the ‘222 patent pending resolution of the amended request for reexamination of the ‘222 patent.  In March 2008, the Patent Office granted our request for reexamination of the ‘222 patent.   On June 11, 2008, the Court ordered the parties to report back to the Court after the Patent Office made its decision in the reexamination of the ‘222 patent, after which a claim construction hearing (i.e., a Markman Hearing) would be scheduled for both the ‘222 and ‘395 patents. On June 12, 2008, the parties informed the Court that the total time the reexamination will remain pending is not known.  On January 19, 2010, the Patent Office issued a Notice of Intent to Issue Ex Parte Reexamination Certificate for the ‘222 patent which will close the reexamination proceeding on the ‘222 patent. When this lawsuit is re-started, we will continue to defend the action vigorously and believe that we have meritorious defenses of non-infringement, invalidity and inequitable conduct. However, litigation is unpredictable and we may not prevail in successfully defending or asserting our position. If we do not prevail, we may be ordered to pay substantial damages for past sales and an ongoing royalty for future sales of products found to infringe in the United States. We could also be ordered to stop selling any products in the United States that are found to infringe.





22


Alma Lasers, Inc., Delaware Litigation





On September 11, 2008, Alma Lasers, Inc. filed a complaint requesting a declaratory judgment that our fractional patent, U.S. Patent No. 6,997,923, is not infringed by Alma's products and is invalid over prior art.  Alma served this lawsuit on us on November 6, 2008, and on November 21, 2008, we filed an answer which denied Alma's allegations that the patent is invalid and not infringed.  We also filed a counterclaim accusing Alma's Pixel C02 Omnifit Fractional C02 Handpiece and Pixel C02 Fractional C02 Skin Resurfacing System of infringing the patent.  On December 16, 2008, upon the request of both parties, a mediation conference was scheduled for June 30, 2009 before Magistrate Judge Mary Pat Thynge.  On December 18, 2008, upon the request of both parties, the Judge presiding over the lawsuit, stayed the lawsuit and later closed the lawsuit pending the outcome of the mediation.  Due to unforeseen circumstances, the mediation scheduled for June 30, 2009 was postponed until October 13, 2009.  Following our request, Magistrate Judge Mary Pat Thynge cancelled the mediation on October 6, 2009.  By letter dated October 13, 2009, we asked presiding Judge Farnan to re-open the case.  On December 28, 2009, Alma filed a First Amended Complaint to add a claim that U.S. Patent No. 6,997,923 is unenforceable due to inequitable conduct.  On January 11, 2010, we filed our Amended Answer and Counterclaim to Alma’s First Amended Complaint denying Alma’s allegation of inequitable conduct. On March 4, 2010 the parties filed a joint stipulated order of dismissal requesting that the court dismiss this action, including all claims and counterclaims, in its entirety without prejudice, with the parties agreeing that any future litigation between them over U.S. Patent No. 6,997,923, any patent claiming priority (either directly or indirectly) thereto, and/or any patents relating to fractional technology, shall be commenced in this Court.





Syneron, Inc., Massachusetts Litigation





On November 14, 2008, we commenced an action for patent infringement against Syneron, Inc. in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief. The complaint alleges Syneron's eLight, eMax, eLaser, Aurora DS, Polaris DS, Comet and Galaxy Systems, which use light-based technology for hair removal, willfully infringe the ‘568 patent and the ‘844 patent, which are exclusively licensed to us by MGH.  In March 2009, we served Syneron with this suit. On April 30, 2009, the parties filed a stipulation to stay the lawsuit pending the outcome of the reexaminations of the ‘568 patent and the ‘844 patent.





On June 9, 2009, the Patent Office issued an office action confirming the validity of all claims of the ‘844 patent except claims 12-14.  The Patent Office confirmed that claims 1-3, 6-8, 11, 17-20, 27, 28, 30, 32 of the '844 patent are valid and patentable. The Patent Office also confirmed new claims 33-59 as valid and patentable.  The Patent Office rejected only independent claim 12 and related dependent claims 13-14 of the ‘844 patent as unpatentable.  We cancelled claims 12-14 from the '844 patent in order to expedite the reexamination proceeding. Claims 4, 5, 9, 10, 15, 16, 21-26, 29 and 31 were not under reexamination. Consequently, all currently pending claims were found valid by the Patent Office.  On November 18, 2009, the Patent Office issued a Reexamination Certificate for the ‘844 patent which closed the reexamination proceeding on the ‘844 patent.





On October 28, 2009, the Patent Office issued a Reexamination Certificate for the ‘568 patent which closed the reexamination proceeding on the ‘568 patent. The Patent Office confirmed the validity and patentability of all the claims of the ‘568 patent including new claims 23 and 24.





On September 23, 2009, we filed a motion to lift the stay and reopen the lawsuit.  On October 6, 2009, Syneron filed their opposition to our motion to lift the stay, and on October 9, 2009, we filed our response to their opposition.    On November 13, 2009, the Judge re-opened the case and a scheduling hearing took place on January 6, 2010.  No trial date has yet been set.  The parties are in discovery.





Tria Beauty, Inc., Massachusetts Litigation





On June 24, 2009, we commenced an action for patent infringement against Tria Beauty, Inc. (previously named Spectragenics, Inc.), in the United States District Court for the District of Massachusetts seeking both monetary damages and injunctive relief. The complaint alleged that the Tria System, which uses light-based technology for hair removal, willfully infringes the ‘844 patent, which is exclusively licensed to us by MGH.  Tria answered the complaint denying that its products infringe valid claims of the asserted patent and filing a counterclaim seeking a declaratory judgment that the asserted patent is not infringed, is invalid and not enforceable.  We filed a reply denying the material allegations of the counterclaims.  On September 21, 2009, following successful re-examination of the ‘568 patent, we filed a motion to amend our complaint to add a claim for willful infringement of the ‘568 patent, which is also exclusively licensed to us by MGH.  Our motion also included adding MGH as a plaintiff in the lawsuit.  Tria did not oppose the motion and the Judge granted the motion on October 8, 2009.  No trial date has yet been set.  The parties are in discovery.





23


Item 1A.  Risk Factors




Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described in our Annual Report on Form 10-K for the year ended December 31, 2009 in addition to the other information included in this quarterly report. If any of the risks actually occur, our business, financial condition or results of operations would likely suffer. In that case, the trading price of our common stock could fall.




As of June 30, 2010, there have been no material changes to the risk factors disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2009, although we may disclose changes to such risk factors or disclose additional risk factors from time to time in our future filings with the SEC.




Item 2. Changes in securities, use of proceeds and issuer purchases of securities





Period
Total number of shares purchased
Average price paid per share
Total number of shares purchased as part of publicly announced program *
Maximum number of shares that may yet be purchased under program *April 1, 2010 through April 30, 2010
-
-
-
324,500May 1, 2010 through May 31, 2010
-
-
-
324,500June 1, 2010 through June 30, 2010
-
-
-
324,500Total
-
-
-
324,500





*On August 13, 2007, our Board of Directors approved a stock repurchase program under which our management is authorized to repurchase up to one million shares of our common stock.  The timing and actual number of shares purchased will depend on a variety of factors such as price, corporate and regulatory requirements, alternative investment opportunities and other market conditions.  Stock repurchases under this program, if any, will be made using our cash resources, and may be commenced or suspended at any time or from time to time at management’s discretion without prior notice.





Item 3.  Defaults upon senior securities





None.





Item 4.  (Removed and Reserved)





None.





Item 5. Other information





None.








Item 6. Exhibits





10.78*
Amendment to Employment Agreement with Louis P. Valente dated July 1, 200110.79*
Amendment to Employment Agreement with Joseph P. Caruso dated July 1, 200110.80*
Amendment to Employment Agreement with Paul S. Weiner dated July 1, 200110.81*
Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Louis P. Valente dated August 10, 200710.82*
Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Joseph P. Caruso dated August 10, 200710.83*
Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Paul S. Weiner dated August 10, 200710.84*
Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Louis P. Valente dated August 16, 200810.85*
Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Joseph P. Caruso dated August 16, 200810.86*
Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Paul S. Weiner dated August 16, 200810.87*
Amendment to the Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Louis P. Valente dated August 10, 200710.88*
Amendment to the Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Joseph P. Caruso dated August 10, 200710.89*
Amendment to the Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Paul S. Weiner dated August 10, 200710.90*
Amendment to the Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Louis P. Valente dated August 16, 200810.91*
Amendment to the Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Joseph P. Caruso dated August 16, 200810.92*
Amendment to the Stock Appreciation Rights Award Under the 2007 Stock Incentive Plan with Paul S. Weiner dated August 16, 200831.1
Certification of Joseph P. Caruso, President and Chief Executive Officer of the Company, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.31.2
Certification of Paul S. Weiner, Vice President and Chief Financial Officer of the Company, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.32
Certification of Joseph P. Caruso, President and Chief Executive Officer of the Company, pursuant to 18 United States Code Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.32
Certification of Paul S. Weiner, Vice President and Chief Financial Officer of the Company, pursuant to 18 United States Code Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.





*
Management contract or compensatory plan or arrangement


25


Signatures





Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.





Palomar Medical Technologies, Inc.

(Registrant)Date:  August 5, 2010
/s/  Joseph P. Caruso

Joseph P. Caruso

President, Chief Executive Officer and

DirectorDate:  August 5, 2010
/s/  Paul S. Weiner

Paul S. Weiner

Vice President and Chief Financial Officer














26