
(17)	SEC Settlements

On March 3, 2011, Ian McCarthy, the Company’s former Chief Executive Officer (CEO) and on August 30, 2011, James O’Leary, the Company’s former Chief Financial Officer, entered into consent agreements with the Securities and Exchange Commission (SEC) to resolve potential enforcement actions under Section 304(a) of the Sarbanes Oxley Act (SOX). The final judgments with respect to these consents were approved by the United States District Court of the Northern District of Georgia on March 28, 2011 and September 27, 2011, respectively. Section 304 of SOX empowers the SEC to recover for the benefit of the Company certain incentive compensation of a CEO and/or CFO if the company has restated its financial statements without any wrongdoing on the part of the CEO or CFO. As previously disclosed, in May of 2008, the Company restated its financial statements, covering fiscal years ending September 30, 2002 through 2006 and the first two quarters of fiscal 2007. The SEC did not allege that either Mr. McCarthy or Mr. O’Leary were involved in any wrongdoing or had otherwise violated securities laws. In accordance with the final judgments and Section 304 of SOX, Mr. McCarthy agreed to reimburse the Company for his entire fiscal 2006 incentive bonus, certain of his stock sale profits and certain 2006 equity grants and Mr. O’Leary agreed to reimburse the Company for his entire 2006 incentive bonus. According to his agreement, Mr. McCarthy paid $6,479,281 in cash to the Company and returned 57,837 shares of common stock net of shares previously redeemed for tax withholdings. He also agreed to forfeit his right to 52,509 shares of unvested restricted stock. According to his agreement, Mr. O’Leary agreed to pay $1.4 million in cash to the Company which we recorded as a receivable as of September 30, 2011. We received this payment from Mr. O’Leary in October 2011.

With respect to the cash reimbursements, the Company recognized $7.9 million of income in the fiscal 2011. This amount represents the amount of compensation expense previously recognized by the Company. With respect to the stock related to previously vested awards that were returned by Mr. McCarthy, the Company recognized income equal to the value of the stock at the date of return. Due to the significant decline in the Company’s stock price, the stock price used to determine the value of the returned stock was significantly less than the grant date price of the equity award under which these shares vested and, therefore, the amount of income recognized was less than the amount of expense previously recognized by the Company related to these awards. The Company recorded approximately $196,000 related to Mr. McCarthy’s return of 57,837 shares of common stock during fiscal 2011. With respect to the 52,509 shares of unvested restricted stock returned by Mr. McCarthy, the Company recognized approximately $245,000 which is equal to the fair value of the shares at the date of return. The income related to the cash reimbursements, the return of common stock and the return of the unvested restricted stock is included in other expense, net in the accompanying consolidated statements of operations.