10-K/A 1 f03882a1e10vkza.htm AMENDMENT TO FORM 10-K e10vkza
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-K/A

Amendment No. 1

FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

     
þ
  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
     
  For the fiscal year ended September 30, 2004

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 0-27234

Photon Dynamics, Inc.

(Exact name of registrant as specified in its charter)

     
California   94-3007502
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification No.)

5970 Optical Court

San Jose, CA 95138
(Address of principal executive offices, including zip code)

(408) 226-9900

(Registrant’s telephone number, including area code)

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

None

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

Common Stock, no par value per share
(Title of class)

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

     Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.          o

     Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act).     Yes þ          No o

     As of March 31, 2004, the aggregate market value of the voting stock held by non-affiliates of the registrant, computed by reference to the last sale price of such stock as of such date on the NASDAQ National Market, was approximately $475,679,585. Excludes an aggregate of 2,057,546 shares of common stock held by officers and directors and by each person known by the registrant to own 5% or more of the outstanding common stock as of March 31, 2004. Exclusion of shares held by any of these persons should not be construed to indicate that such person possesses the power, direct or indirect, to direct or cause the direction of the management or policies of the registrant, or that such person is controlled by or under common control with the registrant.

     As of November 30, 2004, there were 16,873,772 shares of the registrant’s Common Stock outstanding.

DOCUMENTS INCORPORATED BY REFERENCE

     Portions of the registrant’s definitive Proxy Statement for the 2005 Annual Meeting of Shareholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Form 10-K, are incorporated by reference in Part III, Items 10-14 of this Form 10-K.

 

EXPLANATORY NOTE

     We are filing this amendment to our Annual Report on Form 10-K, originally filed with the Securities and Exchange Commission on December 14, 2004, solely for the purpose of filing Exhibit 10.40 (disclosing outside director cash compensation arrangements, which cash compensation arrangements were previously disclosed on a Current Report on Form 8-K, filed with the Securities and Exchange Commission on October 29, 2004, but inadvertently not included in the list of exhibits in the Annual Report on Form 10-K). This amendment only changes the list of exhibits in Part IV, Item 15, and the Exhibit Index and includes such Exhibit 10.40; no other information included in the Annual Report on Form 10-K is amended by this Form 10-K/A.

PART IV
Item 15. Exhibits and Financial Statement Schedules
SIGNATURES
EXHIBIT INDEX
EXHIBIT 10.40
EXHIBIT 31.1
EXHIBIT 31.2
EXHIBIT 32.1

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PART IV

Item 15. Exhibits and Financial Statement Schedules

(a) 1. Financial Statements

     See Index to Consolidated Financial Statements in Item 8 of this Annual Report on Form 10-K, which is incorporated herein by reference.

2. Financial Statement Schedules

     The following financial statement schedule is filed as part of this annual report on Form 10-K. All other financial statement schedules have been omitted because they are either not applicable or the required information is shown in the consolidated financial statements or notes thereto.

SCHEDULE II
PHOTON DYNAMICS, INC.
VALUATION AND QUALIFYING ACCOUNT

                                         
    Year Ended September 30,
    Balance at           Charged to           Balance at
    Beginning   Charged to   Other           End of
    of Period
   Expense
   Accounts
   Deductions
   Period
                    (In thousands)                
Allowance for doubtful accounts:
                                        
2004
   $ 726       — (1)     —       229 (2)   $ 497  
2003
   $ 1,466       3,132 (1)     —       3,872 (2)   $ 726  
2002
   $ 1,897       111 (1)     —       542 (2)   $ 1,466  

(1)     Includes charges to expense from discontinued operations of approximately $0, $2.9 million and $34,000 in fiscal 2004, 2003 and 2002, respectively.
 
(2)     Includes write-offs of uncollectible accounts from discontinued operations of approximately $0, $3.9 million and $0 in 2004, 2003 and 2002, respectively.

 

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     3. Exhibits

     
Number
   Exhibit
2.3(E)
  Agreement and Plan of Merger, dated as of July 6, 2001, by and among the Registrant; Iris Acquisition, LLC, a Texas limited liability company; Intelligent Reasoning Systems, Inc., a Texas corporation; and Clinton Bybee (as the Shareholders’ Agent), as amended on July 12, 2001.
 
    
3.1(H)
  Amended and Restated Articles of Incorporation of the Registrant.
 
    
3.2(C)
  Bylaws of the Registrant and amendments thereto.
 
    
3.3(H)
  Certificate of Amendment to Articles of Incorporation of the Registrant.
 
    
4.1
  Reference is made to Exhibits 3.1, 3.2 and 3.3.
 
    
10.1(A)*
  Form of Indemnification Agreement between the Registrant and each of its executive officers and directors.
 
    
10.2(A)*
  1987 Stock Option Plan and Form of Stock Option Agreement.
 
    
10.3.1(B)
  Lease agreement between Berg & Berg Developers and the Registrant dated August 6, 1996.
 
    
10.3.2(H)
  First Amendment to Lease between Mission West Properties, L.P. II and the Registrant dated December 7, 2001.
 
    
10.8(M)*
  Offer Letter between the Registrant and Elwood Spedden dated February 4, 2003.
 
    
10.9(D)*
  Agreement Regarding Change of Control between the Registrant and Jeffrey Hawthorne dated October 15, 1995.
 
    
10.10(P)
  Lease Agreement between Corridor Park Pointe II, L.P. and Intelligent Reasoning Systems, Inc., dated May 21, 1999.
 
    
10.11(P)
  First Amendment to Lease Agreement between Corridor Park Pointe II, L.P. and Intelligent Reasoning Systems, Inc. dated November 9, 1999.
 
    
10.12(P)
  Second Amendment to Lease Agreement between Corridor Park Pointe II, L.P. and Intelligent Reasoning Systems, Inc. dated March 15, 2000.
 
    
10.13(F)
  Agreement for Purchase and Sale of Commercial Property between the Registrant and Integrated Power Chip Corporation dated February 12, 2001.
 
    
10.15(G)
  Image Processing Systems Inc. Amended Share Incentive Plan.
 
    
10.16(P)
  Series E Stock Purchase Warrant for Leader Technologies LTD, dated March 1, 2000.
 
    
10.17(I)
  Manufacturing Services Agreement, dated as of December 10, 2001 by and between the Registrant and Sanmina-SCI Corporation.
 
    
10.18(H)
  Real Estate Sublease by and between the Registrant and Sanmina-SCI Corporation dated December 10, 2001.
 
    
10.19(H)
  Amended and Restated Agreement for Purchase of Inventory by and between the Registrant and Sanmina-SCI Corporation dated January 29, 2002.
 
    
10.20(L)*
  Amended and Restated 1995 Stock Option Plan, as amended.
 
    
10.20.1(W)*
  Form of Stock Option Agreement under 1995 Stock Option Plan, as amended.
 
    
10.21(L)*
  1995 Employee Stock Purchase Plan, as amended.
 
    
10.22(M)*
  2001 Equity Incentive Plan, as amended.
 
    
10.22.1(W)*
  Form of Stock Option Agreement under 2001 Equity Incentive Plan, as amended.
 
    
10.25.1(Q)
  Lease Agreement between Bruce N. Huntley Contracting Limited and Image Processing Systems Inc. dated September 17, 1997.
 
    
10.25.2(Q)
  Option to Renew Agreement between Bruce N. Huntley Contracting Limited and Photon Dynamics Canada Inc. dated May 24, 2002.
 
    
10.26(V)
  Third Amendment to Lease Agreement between the Registrant and Mission West Properties L.P. II dated as of August 2003.
 
    
10.29(R)*
  Offer Letter between the Registrant and Richard Okumoto dated April 21, 2003.
 
    
10.30(V)*
  Consulting Agreement between the Registrant and Malcolm Thompson dated July 28, 2003.

 

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Number
   Exhibit
10.31(V)*
  Amendment to Consulting Agreement between the Registrant and Malcolm Thompson dated September 1, 2003.
 
    
10.33(S)*
  Separation Agreement, dated December 4, 2003, between Elwood Spedden and Photon Dynamics, Inc.
 
    
10.34(S)
  Settlement and License Agreement, dated November 10, 2003, between Photon Dynamics, Inc., Shimadzu Corporation, Panelvision Technology, Inc. and Guillermo Toro-Lira.
 
    
10.35(T)*
  Consulting Agreement, dated March 18, 2004, between the Registrant and Malcolm Thompson.
 
    
10.36(T)
  Termination and Assignment Agreement, dated February 27, 2004, between Photon Dynamics, Inc. and Ishikawajima-Harima Heavy Industries Co. Ltd.
 
    
10.37(U)
  Confidential Mutual Settlement Agreement and Mutual General Release of All Claims, dated April 22, 2004, between Photon Dynamics, Inc. and Robert L. Thomason, et. al.
 
    
10.38(W)*
  Offer Letter between the Registrant and Mark Merrill dated April 27, 2004.
 
    
10.39(W)*
  Executive Officer Bonus Compensation Plan.
 
    
10.40*
  Outside Director Cash Compensation Arrangement.
 
    
21.1(W)
  Subsidiaries of the Registrant.
 
    
23.1(W)
  Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
 
    
24.1(W)
  Power of Attorney (included on the signature pages hereto).
 
    
31.1
  Certification required by Rule 13a-14(a) or Rule 15d-14(a).
 
    
31.2
  Certification required by Rule 13a-14(a) or Rule 15d-14(a).
 
    
32.1**
  Certifications required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350).

Key to Exhibits:

(A)   Previously filed on the Registrant’s Registration Statement on Form SB-2 (Commission File No. 33-98232-LA) as filed with the Securities and Exchange Commission (the “SEC”) on November 15, 1995 and incorporated herein by reference.
     
(B)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal year ended September 30, 1996 (Commission File No. 000-27234) as filed with the SEC on December 30, 1996, and incorporated herein by reference.
     
(C)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal year ended September 30, 1998 as filed with the SEC on December 18, 1998, and incorporated herein by reference.
     
(D)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal year ended September 30, 1999 as filed with the SEC on October 27, 1999, and incorporated herein by reference.
     
(E)   Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K as filed with the SEC on July 25, 2001, and incorporated herein by reference.
     
(F)   Previously filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2001 as filed with the SEC on May 4, 2001, and incorporated herein by reference.
     
(G)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 as filed with the SEC on January 24, 2001, and incorporated herein by reference.
     
(H)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (Commission File

 

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    No. 333-76650) as filed with the SEC on January 14, 2002, as amended, and incorporated by reference herein.

(I)   Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K as filed with the SEC on January 7, 2002, and incorporated herein by reference. Confidential treatment has been granted for portions of this exhibit.
     
(K)   Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K/ A as filed with the SEC on July 29, 2002, and incorporated herein by reference.
     
(L)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 (Reg. No. 333-117021) as filed with the SEC on June 30, 2004, and incorporated herein by reference.
     
(M)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended March 31, 2003 as filed with the SEC on May 9, 2003, and incorporated herein by reference.
     
(N)   Previously filed as an appendix to the Registrant’s Definitive Proxy Statement as filed with the SEC on November 8, 1999 and incorporated herein by reference.
     
(O)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-3 as filed with the SEC on November 7, 2000 and incorporated herein by reference.
     
(P)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2001 as filed with the SEC on December 6, 2001, and incorporated here by reference.
     
(Q)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2002 as filed with the SEC on December 11, 2002, and incorporated here by reference.
     
(R)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended June 30, 2003 as filed with SEC on August 14, 2003, and incorporated herein by reference.
     
(S)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended December 31, 2003 as filed with SEC on February 17, 2004, and incorporated herein by reference. Confidential treatment has been granted for portions of Exhibit 10.34.
     
(T)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended March 31, 2004 as filed with SEC on May 14, 2004, and incorporated herein by reference. Confidential treatment has been granted for portions of Exhibit 10.36.
     
(U)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended June 30, 2004 as filed with SEC on August 16, 2004, and incorporated herein by reference. Confidential treatment has been requested for portions of this exhibit.
     
(V)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2003 as filed with the SEC on December 24, 2003, and incorporated here by reference.
     
(W)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2004 as filed with the SEC on December 14, 2004, and incorporated here by reference.
     
*   Indicates a management contract or compensatory plan or arrangement.
     
**   The certification attached as Exhibit 32.1 accompanies the Annual Report on Form 10-K pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed “filed” by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.

(b)   Exhibits
 
    See Item 15(a) above.
 
(c)   Financial Statement Schedules
 
    See Item 15(a) above.

 

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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.
         
  PHOTON DYNAMICS, INC.  
 		  
  By:   /s/ JEFFREY A. HAWTHORNE    
   
Jeffrey A. Hawthorne
President and Chief Executive Officer		  

Dated: December 22, 2004

 

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EXHIBIT INDEX

     
Number
   Exhibit
2.3(E)
  Agreement and Plan of Merger, dated as of July 6, 2001, by and among the Registrant; Iris Acquisition, LLC, a Texas limited liability company; Intelligent Reasoning Systems, Inc., a Texas corporation; and Clinton Bybee (as the Shareholders’ Agent), as amended on July 12, 2001.
 
    
3.1(H)
  Amended and Restated Articles of Incorporation of the Registrant.
 
    
3.2(C)
  Bylaws of the Registrant and amendments thereto.
 
    
3.3(H)
  Certificate of Amendment to Articles of Incorporation of the Registrant.
 
    
4.1
  Reference is made to Exhibits 3.1, 3.2 and 3.3.
 
    
10.1(A)*
  Form of Indemnification Agreement between the Registrant and each of its executive officers and directors.
 
    
10.2(A)*
  1987 Stock Option Plan and Form of Stock Option Agreement.
 
    
10.3.1(B)
  Lease agreement between Berg & Berg Developers and the Registrant dated August 6, 1996.
 
    
10.3.2(H)
  First Amendment to Lease between Mission West Properties, L.P. II and the Registrant dated December 7, 2001.
 
    
10.8(M)*
  Offer Letter between the Registrant and Elwood Spedden dated February 4, 2003.
 
    
10.9(D)*
  Agreement Regarding Change of Control between the Registrant and Jeffrey Hawthorne dated October 15, 1995.
 
    
10.10(P)
  Lease Agreement between Corridor Park Pointe II, L.P. and Intelligent Reasoning Systems, Inc., dated May 21, 1999.
 
    
10.11(P)
  First Amendment to Lease Agreement between Corridor Park Pointe II, L.P. and Intelligent Reasoning Systems, Inc. dated November 9, 1999.
 
    
10.12(P)
  Second Amendment to Lease Agreement between Corridor Park Pointe II, L.P. and Intelligent Reasoning Systems, Inc. dated March 15, 2000.
 
    
10.13(F)
  Agreement for Purchase and Sale of Commercial Property between the Registrant and Integrated Power Chip Corporation dated February 12, 2001.
 
    
10.15(G)
  Image Processing Systems Inc. Amended Share Incentive Plan.
 
    
10.16(P)
  Series E Stock Purchase Warrant for Leader Technologies LTD, dated March 1, 2000.
 
    
10.17(I)
  Manufacturing Services Agreement, dated as of December 10, 2001 by and between the Registrant and Sanmina-SCI Corporation.
 
    
10.18(H)
  Real Estate Sublease by and between the Registrant and Sanmina-SCI Corporation dated December 10, 2001.
 
    
10.19(H)
  Amended and Restated Agreement for Purchase of Inventory by and between the Registrant and Sanmina-SCI Corporation dated January 29, 2002.
 
    
10.20(L)*
  Amended and Restated 1995 Stock Option Plan, as amended.
 
    
10.20.1(W)*
  Form of Stock Option Agreement under 1995 Stock Option Plan, as amended.
 
    
10.21(L)*
  1995 Employee Stock Purchase Plan, as amended.
 
    
10.22(M)*
  2001 Equity Incentive Plan, as amended.
 
    
10.22.1(W)*
  Form of Stock Option Agreement under 2001 Equity Incentive Plan, as amended.
 
    
10.25.1(Q)
  Lease Agreement between Bruce N. Huntley Contracting Limited and Image Processing Systems Inc. dated September 17, 1997.
 
    
10.25.2(Q)
  Option to Renew Agreement between Bruce N. Huntley Contracting Limited and Photon Dynamics Canada Inc. dated May 24, 2002.
 
    
10.26(V)
  Third Amendment to Lease Agreement between the Registrant and Mission West Properties L.P. II dated as of August 2003.

 

Table of Contents

     
Number
   Exhibit
10.29(R)*
  Offer Letter between the Registrant and Richard Okumoto dated April 21, 2003.
 
    
10.30(V)*
  Consulting Agreement between the Registrant and Malcolm Thompson dated July 28, 2003.
 
    
10.31(V)*
  Amendment to Consulting Agreement between the Registrant and Malcolm Thompson dated September 1, 2003.
 
    
10.33(S)*
  Separation Agreement, dated December 4, 2003, between Elwood Spedden and Photon Dynamics, Inc.
 
    
10.34(S)
  Settlement and License Agreement, dated November 10, 2003, between Photon Dynamics, Inc., Shimadzu Corporation, Panelvision Technology, Inc. and Guillermo Toro-Lira.
 
    
10.35(T)*
  Consulting Agreement, dated March 18, 2004, between the Registrant and Malcolm Thompson.
 
    
10.36(T)
  Termination and Assignment Agreement, dated February 27, 2004, between Photon Dynamics, Inc. and Ishikawajima-Harima Heavy Industries Co. Ltd.
 
    
10.37(U)
  Confidential Mutual Settlement Agreement and Mutual General Release of All Claims, dated April 22, 2004, between Photon Dynamics, Inc. and Robert L. Thomason, et. al.
 
    
10.38(W)*
  Offer Letter between the Registrant and Mark Merrill dated April 27, 2004.
 
    
10.39(W)*
  Executive Officer Bonus Compensation Plan.
 
    
10.40*
  Outside Director Cash Compensation Arrangement.
 
    
21.1(W)
  Subsidiaries of the Registrant.
 
    
23.1(W)
  Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
 
    
24.1(W)
  Power of Attorney (included on the signature pages hereto).
 
    
31.1
  Certification required by Rule 13a-14(a) or Rule 15d-14(a).
 
    
31.2
  Certification required by Rule 13a-14(a) or Rule 15d-14(a).
 
    
32.1**
  Certifications required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350).

Key to Exhibits:

(A)   Previously filed on the Registrant’s Registration Statement on Form SB-2 (Commission File No. 33-98232-LA) as filed with the Securities and Exchange Commission (the “SEC”) on November 15, 1995 and incorporated herein by reference.
     
(B)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal year ended September 30, 1996 (Commission File No. 000-27234) as filed with the SEC on December 30, 1996, and incorporated herein by reference.
     
(C)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal year ended September 30, 1998 as filed with the SEC on December 18, 1998, and incorporated herein by reference.
     
(D)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal year ended September 30, 1999 as filed with the SEC on October 27, 1999, and incorporated herein by reference.
     
(E)   Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K as filed with the SEC on July 25, 2001, and incorporated herein by reference.
     
(F)   Previously filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2001 as filed with the SEC on May 4, 2001, and incorporated herein by reference.
     
(G)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 as filed with the SEC on January 24, 2001, and incorporated herein by reference.

 

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(H)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (Commission File No. 333-76650) as filed with the SEC on January 14, 2002, as amended, and incorporated by reference herein.
     
(I)   Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K as filed with the SEC on January 7, 2002, and incorporated herein by reference. Confidential treatment has been granted for portions of this exhibit.
     
(K)   Previously filed as an exhibit to the Registrant’s Current Report on Form 8-K/ A as filed with the SEC on July 29, 2002, and incorporated herein by reference.
     
(L)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-8 (Reg. No. 333-117021) as filed with the SEC on June 30, 2004, and incorporated herein by reference.
     
(M)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended March 31, 2003 as filed with the SEC on May 9, 2003, and incorporated herein by reference.
     
(N)   Previously filed as an appendix to the Registrant’s Definitive Proxy Statement as filed with the SEC on November 8, 1999 and incorporated herein by reference.
     
(O)   Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-3 as filed with the SEC on November 7, 2000 and incorporated herein by reference.
     
(P)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2001 as filed with the SEC on December 6, 2001, and incorporated here by reference.
     
(Q)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2002 as filed with the SEC on December 11, 2002, and incorporated here by reference.
     
(R)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended June 30, 2003 as filed with SEC on August 14, 2003, and incorporated herein by reference.
     
(S)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended December 31, 2003 as filed with SEC on February 17, 2004, and incorporated herein by reference. Confidential treatment has been granted for portions of Exhibit 10.34.
     
(T)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended March 31, 2004 as filed with SEC on May 14, 2004, and incorporated herein by reference. Confidential treatment has been granted for portions of Exhibit 10.36.
     
(U)   Previously filed as an exhibit to the Registrant’s Quarterly Report Form on Form 10-Q for the quarter ended June 30, 2004 as filed with SEC on August 16, 2004, and incorporated herein by reference. Confidential treatment has been requested for portions of this exhibit.
     
(V)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2003 as filed with the SEC on December 24, 2003, and incorporated here by reference.
     
(W)   Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2004 as filed with the SEC on December 14, 2004, and incorporated here by reference.
     
*   Indicates a management contract or compensatory plan or arrangement.
     
**   The certification attached as Exhibit 32.1 accompanies the Annual Report on Form 10-K pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed “filed” by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.