Subsequent Events

9 Months Ended

Jun. 30, 2013

Subsequent Events [Abstract]

Subsequent Events

Seventh Omnibus Amendment and Intercreditor Agreement

On August 7, 2013 we entered into the Seventh Omnibus Amendment with Costa Brava, which amends and modifies the terms of certain of the Promissory Notes and the Security Agreement, to permit the issuance of, among other promissory notes, the 2013 Notes, subordinate the liens securing certain promissory notes to the Promissory Notes, and to make the Promissory Notes and certain senior subordinated notes, including the 2013 Notes, rank pari passu with one another upon a liquidation of our assets. Costa Brava is our largest stockholder and one of our largest creditors.

Also on August 7, 2013, the Company and certain accredited investors participating in the offering of Notes and Warrants described below entered into an Intercreditor Agreement (the “Intercreditor Agreement”), pursuant to which such investors agreed to subordinate the liens securing such Notes to the July 30 Notes, and make the July 30 Notes and the 2013 Notes rank pari passu with one another upon a liquidation of the Company.

Forbearance

On July 1, 2013, the Company entered into a Ninth Extension of Forbearance under Loan and Security Agreement with PFG (“Ninth Forbearance”).  The Ninth Forbearance extends the period through which PFG agrees to forbear from exercising its rights and remedies as a result of the Company’s default of certain covenant terms to the earlier of, among other events:

· A default under the Loan Agreement;

· August 2, 2013 if $3.0 million is not received from the sale of convertible debt or equity securities; or

· September 20, 2013 if the Company does not receive $3.5 million in proceeds from the sale of convertible debt or equity securities.

provided, however, such date shall be accelerated or extended in increments of one calendar week for each $250,000 increment by which such financing falls short (or exceeds) $3.5 million in proceeds from the sale of convertible debt or equity securities.

The Company consummated the Offering, as defined below, resulting in the extension of the period for which PFG has agreed to forbear from exercising its rights and remedies to at least September 20, 2013.

In connection with this forbearance, the Company agreed to pay PFG a forbearance fee in cash in the amount of 12.5% of the gross proceeds times 0.077%, as well as warrants with an exercise price of $0.01, to purchase that number of shares that would be equal to 12.5% of the gross proceeds of the sale of convertible debt or equity securities, multiplied by 3.97.  Both the cash payment and the warrants are issuable upon the earlier of closing of a financing or December 31, 2013.

Debt Issuances

During July and August 2013, the Company consummated an offering ("Offering") consisting of the issuance of senior subordinated secured convertible promissory notes to certain accredited investors ("Holders") in the principal amount of $3.4 million (the "July 30 Notes"). The July 30 Notes are part of the 2013 Notes.

     The July 30 Notes accrue simple interest at the rate of 12% per annum, and are secured by all assets of the Company under the terms of the Security Agreement, dated March 16, 2011 (the “Security Agreement”). Griffin Fund L.P. serves as the representative of the Holders under the Security Agreement and has broad discretion as the Holder representative in exercising the rights of the Holders under the Security Agreement. Griffin Fund L.P. and certain of its affiliates are holders of the July 30 Notes. Griffin Fund LP is a significant stockholder of the Company.

The July 30 Notes are convertible at the election of the Holder into that number of shares of the Company's common stock determined by dividing the outstanding principal and accrued interest due and payable under the July 30 Notes by $0.06 (the "Conversion Amount") rather than the $0.12 per share in the rest of the 2013 Notes. In addition, the Holder has the right to convert the outstanding principal and accrued interest due and payable under the July 30 Notes in connection with a Qualified Financing by applying the Conversion Amount to the purchase of the securities issued in connection with the Qualified Financing.

     The July 30 Notes are subordinate to the Existing Secured Debt of the Company, as such term is defined in the July 30 Notes. Payment of all amounts due and payable under the terms of the July 30 Notes are accelerated in the event of an event of default under the terms of the July 30 Notes. The holders of the July 30 Notes will receive an original issue discount, whereby they will receive an additional 7.7% of principal note face value for the July 30 Notes that they purchase.

The July 30 Notes and warrants were offered and sold in transactions exempt from registration under the Securities Act in reliance on Section 4(2) thereof and Rule 506 of Regulation D thereunder. Each of the Holders represented that it was an "accredited investor" as defined in Regulation D.

During July 2013, Costa Brava deposited $1.0 million in an escrow account at PFG (the “PFG Guarantee Fund”) as a guarantee fund for the Company. Costa Brava irrevocably transferred the rights, title and interest of this PFG Guarantee Fund account to the Company.  In exchange for such rights received, the Company issued a $1.0 million note to Costa Brava as part of the $20 million series of promissory notes that the Company’s Board of Directors had approved in March of 2013.

As of August 13, 2013, $13.4 million of the Company’s debt had matured.  The Company is in the process of working with the respective lenders of the debt to extend the maturity dates. No assurances can be given that the Company will be successful in extending the maturity dates of such debt.