##### Table of Contents



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 WASHINGTON, D.C. 20549
 FORM 10-Q
  þ
    
    QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 For the Quarterly Period Ended March 31, 2009
 OR
 o
    
    TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 Commission File Number 0-26483
 VaxGen, Inc.
  Delaware
(State or other jurisdiction of 
incorporation or organization)
    
    94-3236309
(I.R.S. Employer Identification No.)379 Oyster Point Boulevard, Suite 10
South San Francisco, California
(Address of Principal Executive Offices)
    
    94080
(Zip Code)
 (650) 624-1000
  þ o
  o o
  Large accelerated filer o
    
    Accelerated filer o
    
    Non-accelerated filer o
    
    Smaller Reporting Company þ(Do not check if a smaller reporting company)
  o þ




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##### 



VaxGen, Inc.
 Form 10-Q
 For the Quarter Ended March 31, 2009
 Table of Contents
 PagePart I Financial InformationItem 1 Financial Statements (unaudited):
    
    
    3Condensed Consolidated Balance Sheets
    
    
    3Condensed Consolidated Statements of Operations
    
    
    4Condensed Consolidated Statements of Cash Flows
    
    
    5Notes to Condensed Consolidated Financial Statements
    
    
    6Item 2 Managements Discussion and Analysis of Financial Condition and Results of Operations
    
    
    10Overview
    
    
    10Critical Accounting Policies and Estimates
    
    
    11Results of Operations
    
    
    11Financial Condition, Liquidity and Capital Resources
    
    
    13Item 3 Quantitative and Qualitative Disclosures About Market Risk
    
    
    14Item 4T Controls and Procedures
    
    
    14Part II Other InformationItem 1 Legal Proceedings
    
    
    15Item 1A Risk Factors
    
    
    15Item 2 Unregistered Sales of Equity Securities and Use of Proceeds
    
    
    20Item 3 Defaults Upon Senior Securities
    
    
    20Item 4 Submission of Matters to a Vote of Security Holders
    
    
    20Item 5 Other Information
    
    
    20Item 6 Exhibits
    
    
    20Signatures
    
    
    22Exhibit 31.1Exhibit 32.1
   2




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##### Table of Contents



PART I  FINANCIAL INFORMATION
 
 Item 1. Financial Statements
 VaxGen, Inc.
 
 CONDENSED CONSOLIDATED BALANCE SHEETS
 (Unaudited)
 (in thousands)
 March 31,
    
    
    December 31,2009
    
    
    2008ASSETSCurrent assets:Cash and cash equivalents
    
    $
    32,421
    
    
    $
    34,618Investment securities
    
    
    4,302
    
    
    
    3,922Prepaid expenses and other current assets
    
    
    560
    
    
    
    792Assets held for sale
    
    
    762
    
    
    
    783Total current assets
    
    
    38,045
    
    
    
    40,115Restricted cash
    
    
    1,556
    
    
    
    1,556Other assets
    
    
    411
    
    
    
    426Total assets
    
    $
    40,012
    
    
    $
    42,097LIABILITIES AND STOCKHOLDERS EQUITYCurrent liabilities:Accounts payable
    
    $
    186
    
    
    $
    75Accrued and other current liabilities
    
    
    557
    
    
    
    706Total current liabilities
    
    
    743
    
    
    
    781Deferred rent and other liabilities
    
    
    5,007
    
    
    
    5,097Total liabilities
    
    
    5,750
    
    
    
    5,878Contingencies (Note 11)Stockholders equity:Common stock
    
    
    331
    
    
    
    331Additional paid-in capital
    
    
    302,918
    
    
    
    302,856Accumulated deficit
    
    
    (268,987
    )
    
    
    (267,241
    )Accumulated other comprehensive income
    
    
    
    
    
    
    273Total stockholders equity
    
    
    34,262
    
    
    
    36,219Total liabilities and stockholders equity
    
    $
    40,012
    
    
    $
    42,097
   3




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##### Table of Contents



VaxGen, Inc.
 
 CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
 (Unaudited)
 (in thousands, except per share data)
 Three Months EndedMarch 31,2009
    
    
    2008Revenues
    
    $
    
    
    
    $
    278Operating expenses:Research and development
    
    
    
    
    
    
    1,387General and administrative
    
    
    2,228
    
    
    
    5,400Total operating expenses
    
    
    2,228
    
    
    
    6,787Loss from operations
    
    
    (2,228
    )
    
    
    (6,509
    )Other income (expense)Interest expense
    
    
    (11
    )
    
    
    (767
    )Interest income
    
    
    104
    
    
    
    714Realized gain on sale of available for sale investments
    
    
    357
    
    
    
    Valuation adjustments
    
    
    
    
    
    
    (1,611
    )Gain on convertible debt redemption
    
    
    
    
    
    
    713Other
    
    
    32
    
    
    
    (11
    )Total other income (expense), net
    
    
    482
    
    
    
    (962
    )Net loss
    
    $
    (1,746
    )
    
    $
    (7,471
    )Basic and diluted net loss per share
    
    $
    (0.05
    )
    
    $
    (0.23
    )Weighted average shares used in computing
basic and diluted net loss per share
    
    
    33,107
    
    
    
    33,107
   4




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##### Table of Contents



VaxGen, Inc.
 
 CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
 (Unaudited)
 (in thousands)
 Three Months EndedMarch 31,2009
    
    
    2008Cash flows from operating activities:Net loss
    
    $
    (1,746
    )
    
    $
    (7,471
    )Adjustments to reconcile net loss to net cash used in operating activities:Depreciation and amortization
    
    
    
    
    
    
    537Valuation adjustments
    
    
    
    
    
    
    1,611Stock-based compensation
    
    
    62
    
    
    
    170Amortization of premiums and discounts on investment securities
    
    
    
    
    
    
    (93
    )Gain on sale of Celltrion common stock
    
    
    (357
    )
    
    
    Loss on sale of assets held for sale
    
    
    7
    
    
    
    Gain on convertible debt repurchase
    
    
    
    
    
    
    (713
    )Non-cash interest expense
    
    
    
    
    
    
    211Changes in operating assets and liabilitiesReceivables
    
    
    
    
    
    
    (19
    )Prepaid expenses and other current assets
    
    
    232
    
    
    
    471Accounts payable
    
    
    111
    
    
    
    (2,031
    )Accrued and other current liabilities
    
    
    (149
    )
    
    
    56Other
    
    
    (75
    )
    
    
    2,417Net cash used in operating activities
    
    
    (1,915
    )
    
    
    (4,854
    )Cash flows from investing activities:Proceeds from sale of assets held for sale
    
    
    14
    
    
    
    Proceeds from sale and maturity of investment securities
    
    
    2,398
    
    
    
    6,895Purchase of investment securities
    
    
    (3,051
    )
    
    
    (14,303
    )Proceeds from sale of Celltrion common stock
    
    
    357
    
    
    
    Loan to Raven biotechnologies, inc.
    
    
    
    
    
    
    (4,020
    )Other
    
    
    
    
    
    
    (4
    )Net cash used in investing activities
    
    
    (282
    )
    
    
    (11,432
    )Cash flows from financing activities:Repurchase of senior subordinated convertible notes
    
    
    
    
    
    
    (750
    )Net cash used in financing activities
    
    
    
    
    
    
    (750
    )Net decrease in cash and cash equivalents
    
    
    (2,197
    )
    
    
    (17,036
    )Cash and cash equivalents, beginning of period
    
    
    34,618
    
    
    
    64,726Cash and cash equivalents, end of period
    
    $
    32,421
    
    
    $
    47,690
   5




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VaxGen, Inc.
 
 Notes to Condensed Consolidated Financial Statements
 (Unaudited)
 1. Organization
 Nature of Business Activities
      Basis of Presentation
     6




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2. Summary of Significant Accounting Policies
  Recent Accounting Pronouncements
  3. Net Loss per Share
   Three Months EndedMarch 31,2009
    
    
    2008Net loss
    
    $
    (1,746
    )
    
    $
    (7,471
    )Basic and diluted net loss per share
    
    $
    (0.05
    )
    
    $
    (0.23
    )Weighted average shares used in computing
basic and diluted net loss per share
    
    
    33,107
    
    
    
    33,107
  March 31,2009
    
    
    2008Options to purchase common stock
    
    
    1,858
    
    
    
    5,347Warrants to purchase common stock
    
    
    2,238
    
    
    
    2,317Convertible senior subordinated notes
    
    
    
    
    
    
    2,033Total
    
    
    4,096
    
    
    
    9,697
 4. Comprehensive Loss
  Three Months EndedMarch 31,2009
    
    
    2008Net loss
    
    $
    (1,746
    )
    
    $
    (7,471
    )Change in unrealized gains on investment securities
    
    
    (273
    )
    
    
    4Comprehensive loss
    
    $
    (2,019
    )
    
    $
    (7,467
    )
  7




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##### Table of Contents



5. Investments
  6. Assets Held For Sale
   March 31,
    
    
    December 31,2009
    
    
    2008Equipment, furniture and fixtures
    
    $
    762
    
    
    $
    783
 7. Accrued and Other Current Liabilities
  March 31,
    
    
    December 31,2009
    
    
    2008Employee benefits and severance
    
    $
    55
    
    
    $
    154Legal and professional fees
    
    
    90
    
    
    
    167Deferred rent
    
    
    344
    
    
    
    318Other
    
    
    68
    
    
    
    67Total accrued and other current liabilities
    
    $
    557
    
    
    $
    706
 8. Income Taxes
  Accounting for Uncertainty in
Income Taxes  an interpretation of FASB Statement No. 109
    8




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9. Stock-Based Compensation
  Three Months EndedMarch 31,2009
    
    
    2008Research and development
    
    $
    
    
    
    $
    42General and administrative
    
    
    62
    
    
    
    128$
    62
    
    
    $
    170
 10. Celltrion
  11. Contingencies
 Litigation
   Contingencies
  12. Fair Value Measurements
 Fair Value Measurement, or
 
    
    Level 1 Inputs are quoted prices in active markets for identical
assets or liabilities.
 
    
    Level 2 Inputs are quoted prices for similar assets or
liabilities in an active market, quoted prices for identical or similar assets or
liabilities in markets that are not active, inputs other than quoted prices that are
observable and market-corroborated inputs which are derived principally from or
corroborated by observable market data.
 
    
    Level 3 Inputs are derived from valuation techniques in which
one or more significant inputs or value drivers are unobservable.
  9




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##### Table of Contents



Level 1
    
    
    Level 2
    
    
    Level 3
    
    
    TotalAssets:Cash equivalents:Money market funds
    
    $
    30,760
    
    
    $
    
    
    
    $
    
    
    
    $
    30,760Certificates of deposit
    
    
    
    
    
    
    1,250
    
    
    
    
    
    
    
    1,250Investment securities:Certificates of deposit
    
    
    
    
    
    
    4,302
    
    
    
    
    
    
    
    4,302Restricted cash:Certificates of deposit
    
    
    
    
    
    
    1,556
    
    
    
    
    
    
    
    1,556Total Financial Assets
    
    $
    30,760
    
    
    $
    7,108
    
    
    $
    
    
    
    $
    37,868
 
 ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
 Special Note Regarding Forward - Looking Statements
   
 OVERVIEW
    10




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CRITICAL ACCOUNTING POLICIES AND ESTIMATES
  
 RESULTS OF OPERATIONS
 Comparison of Fiscal Quarters Ended March 31, 2009 and 2008
 Revenues
 Three Months Ended
    
    
    PercentMarch 31,
    
    
    Change2009
    
    
    2008
    
    
    2009/2008(in thousands)Revenues
    
    $
    
    
    
    $
    278
    
    
    
    -100
    %
   Research and development expenses
 Three Months Ended
    
    
    PercentMarch 31,
    
    
    Change2009
    
    
    2008
    
    
    2009/2008(in thousands)Research and development expenses
    
    $
    
    
    
    $
    1,387
    
    
    
    -100
    %
   11




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General and administrative expenses
 Three Months Ended
    
    
    PercentMarch 31,
    
    
    Change2009
    
    
    2008
    
    
    2009/2008(in thousands)General and administrative expenses
    
    $
    2,228
    
    
    $
    5,400
    
    
    
    -59
    %
   
    
    Labor and benefits, which decreased by $0.5 million primarily associated with the
2008 reductions in force;
 
    
    Consultant and outside labor costs decreased by $2.5 million in 2009, following
the termination of the proposed merger, or the Merger, with Raven biotechnologies, inc.,
or Raven, pursuant to which we incurred $2.3 million in such costs during the first
quarter of 2008; and
 
    
    Facilities cost decreased by $0.6 million due to the cessation of operations
during the first quarter of 2008.
 Other income (expense)
 Three Months EndedMarch 31,2009
    
    
    2008(in thousands)Interest expense
    
    $
    (11
    )
    
    $
    (767
    )Interest income
    
    
    104
    
    
    
    714Realized gain in available for sale securities
    
    
    357
    
    
    
    Valuation adjustments
    
    
    
    
    
    
    (1,611
    )Gain on convertible debt repurchase
    
    
    
    
    
    
    713Other
    
    
    32
    
    
    
    (11
    )Total other income (expense), net
    
    $
    482
    
    
    $
    (962
    )
  
    
    A decrease in interest expense in 2009, following the repurchase of our 5 1/2%
Convertible Senior Subordinated Notes due April 2010, or Convertible Notes, during 2008;
 
    
    A $0.4 million realized gain on the sale of our remaining Celltrion investment;
 
    
    A decrease in expenses for mark-to-market adjustments following the valuation of
the derivatives on our Convertible Notes during the first quarter of 2008; and
 
    
    A partial offset of decreased interest income due to lower overall cash, cash
equivalents and investment balances primarily due to our repurchase of Convertible Notes
during 2008.
   12




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FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
 2009
    
    
    2008(in thousands)As of March 31:Cash, cash equivalents and investment securities
    
    $
    36,723
    
    
    $
    62,084Working capital
    
    
    37,302
    
    
    
    65,547Three Months ended March 31:Cash used inOperating activities
    
    $
    (1,915
    )
    
    $
    (4,854
    )Investing activities
    
    
    (282
    )
    
    
    (11,432
    )Financing activities
    
    
    
    
    
    
    (750
    )
   
    
    Depreciation expense of zero in 2009 and $0.5 million in 2008, reflecting the
reclassification of equipment, furniture and fixtures to assets held for sale during the
first quarter of 2008;
 
    
    Valuation loss of $1.6 million in 2008 reflecting changes in the fair value of
outstanding derivatives from the Convertible Notes;
 
    
    Gain on redemption of the Convertible Notes of $0.7 million in 2008; and
 
    
    Gain on sale of Celltrion common stock of $0.4 million in 2009.
  
    
    Accounts payable, which increased by $0.1 million in 2009 and decreased by $2.0
million in 2008 primarily due to the timing of payments and the reduced level of
operating activities; and
 
    
    Other liabilities, which decreased by $0.1 million in 2009 and increased $2.4
million in 2008 primarily due to $1.9 million of the Merger costs capitalized at
December 31, 2007 that were expensed as general and administrative expense during the
three months ended March 31, 2008.
    
    
    Cash, cash equivalents and investments decreased by $25.4 million primarily due
to our repurchase of Convertible Notes in 2008 and operating losses;
 
    
    Assets held for sale decreased by $9.5 million primarily due to $8.8 million of
impairment charges during 2008; and
 
    
    A partial offset by the elimination of the derivative liability of $5.1 million
resulting from the repurchase of our Convertible Notes in 2008.
   13




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Off-Balance Sheet Arrangements
 S-K.
 
 ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
  
 ITEM 4T. CONTROLS AND PROCEDURES
 Evaluation of disclosure controls and procedures.
  Changes in internal control over financial reporting.
  Inherent Limitations on Effectiveness of Controls.
   14




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##### Table of Contents



PART II
 OTHER INFORMATION
 
 ITEM 1. LEGAL PROCEEDINGS
   
 ITEM 1A. RISK FACTORS
  We do not currently have capabilities to develop products or offer any services; the
continuation of our business as a going concern is wholly dependent on our ability to
identify and successfully complete a strategic transaction, and/or sell our assets, which
we may be unable to accomplish.
    15




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##### Table of Contents



We may use some or all of our remaining resources, including available cash, while we seek
to identify a strategic transaction; we may fail to identify an appropriate transaction;
our stockholders may vote against a proposed transaction; and even if a strategic
transaction is completed, it may be unsuccessful in creating value for stockholders.
   If we fail to identify and manage successfully any company or product acquisitions, joint
ventures or in-licensed product candidates, we will be unable to rebuild our product
candidate pipeline.
   
    
    exposure to unknown liabilities of acquired companies;
 
    
    higher than anticipated acquisition costs and expenses;
 
    
    the difficulty and expense of integrating operations and personnel of
acquired companies;
 
    
    possible dilution to stockholders; and
 
    
    potential competition against any products or product candidates we may
acquire rights to.
  We may need to raise additional capital to support our operations and in order to continue
as a going concern if we successfully complete a strategic transaction. *
    16




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As a result of the reductions in our workforce that we announced throughout 2007 and 2008,
we may not be successful in retaining key employees and in attracting qualified new
employees as required in the future. If we are unable to retain our management or to
attract additional qualified personnel, our ability to rebuild our business will be
seriously jeopardized.
  We have only a limited operating history and we expect to continue to generate operating
losses.
  Natural disasters, including earthquakes, may damage our facilities.
   17




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We are defendants in a lawsuit which, if successful, could result in liability by us for
significant damages and the loss of our biopharmaceutical manufacturing facility in South San
Francisco.
  Our use of hazardous materials and chemicals require us to comply with regulatory
requirements and exposes us to potential liabilities.
  We may become subject to product liability claims, which could result in damages that
exceed our insurance coverage.
  We may be subject to claims that our employees or we have wrongfully used or disclosed
alleged trade secrets of their former employers.
  We are not currently listed on a national exchange and there can be no assurance we will
ever be listed.
   18




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Our stockholders could experience substantial dilution as a result of the issuance of
additional shares of common or preferred stock.
  Shares of our common stock eligible for future sale may adversely affect the market for
our common stock.
  Our stock price is likely to be volatile.
   
    
    timing and consistency of filing financial statements;
 
    
    announcements or speculation about any strategic transactions we may enter
into;
 
    
    changes in financial estimates by securities analysts and our failure to meet
or exceed such estimates;
 
    
    rumors about our business prospects, product development efforts or the
progress, timing and completion of our clinical trials;
 
    
    issuances of debt or equity securities;
 
    
    issuances of securities or the expectation of the issuance of securities as
part of a merger or other strategic transaction;
 
    
    actual or expected sales by our stockholders of substantial amounts of our
common stock, including shares issued upon exercise of outstanding options and
warrants;
 
    
    developments in or the outcome of litigation against us, including an ongoing
dispute regarding our leased premises at 349 Oyster Point Boulevard, South San
Francisco, California; and
 
    
    other events or factors, many of which are beyond our control.
  We have no history of paying dividends on our common stock.
   19




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Our charter documents and Delaware law may discourage an acquisition of us.
  
 ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
  
 ITEM 3. DEFAULTS UPON SENIOR SECURITIES
  
 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
  
 ITEM 5. OTHER INFORMATION
  
 ITEM 6. EXHIBITS
 (a) Exhibits required by Item 601 of Regulation S-K:
  Incorporated by ReferenceExhibit
    
    
    
    
    
    
    
    
    
    Exhibit
    
    FiledNo.
    
    Exhibit
    
    Form
    
    File No.
    
    Filing Date
    
    No.
    
    Herewith2.1
    
    Agreement and Plan of Merger, dated November 12,
2007, by and among VaxGen, Inc., TLW Merger Sub,
Inc., TLW, LLC, and Raven biotechnologies, inc.
    
    8-K
    
    000-26483
    
    11-13-07
    
    
    2.12.2
    
    Amendment No. 1 to Agreement and Plan of Merger,
dated December 20, 2007, by and among VaxGen,
Inc., TLW Merger Sub, Inc., TLW, LLC, and Raven
biotechnologies, inc.
    
    S-4
    
    333-148312
    
    12-24-07
    
    
    2.22.3
    
    Amendment No. 2 to Agreement and Plan of Merger,
dated February 6, 2008, by and among VaxGen, Inc.,
TLW Merger Sub, Inc., TLW, LLC, and Raven
biotechnologies, inc.
    
    S-4/A
    
    333-148312
    
    02-06-08
    
    
    2.33.1
    
    Amended and Restated Certificate of Incorporation.
    
    S-8
    
    333-84922
    
    3-26-02
    
    
    4.13.2
    
    Amendment to the Amended and Restated Certificate
of Incorporation.
    
    S-8
    
    333-84922
    
    3-26-02
    
    
    4.33.4
    
    Amended and Restated Bylaws, dated as of May 18,
2007.
    
    8-K
    
    000-26483
    
    05-23-07
    
    
    3.13.5
    
    Amendment to the Amended and Restated Certificate
of Incorporation, dated as of August 10, 2005.
    
    10-Q
    
    0-26483
    
    05-31-07
    
    
    3.44.1
    
    Reference is made to Exhibits 3.1, 3.2, 3.4 and 3.5
  20




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Incorporated by ReferenceExhibit
    
    
    
    
    
    
    
    
    
    Exhibit
    
    FiledNo.
    
    Exhibit
    
    Form
    
    File No.
    
    Filing Date
    
    No.
    
    Herewith4.2
    
    Certificate of Designations, Rights and
Preferences of Series A 6% Cumulative Convertible
Preferred Stock.
    
    S-8
    
    333-84922
    
    3-26-02
    
    
    4.24.3
    
    Securities Purchase Agreement by and among
Registrant and Certain Stockholders.
    
    8-K
    
    000-26483
    
    5-24-01
    
    
    10.14.4
    
    Registrant Rights Agreement by and among
Registrant and Certain Stockholders.
    
    8-K
    
    000-26483
    
    5-24-01
    
    
    10.24.5
    
    Form of Common Stock Purchase Warrant.
    
    8-K
    
    000-26483
    
    5-24-01
    
    
    4.14.6
    
    Specimen Stock Certificate for Common Stock of
Registrant.
    
    S-1
    
    333-78065
    
    6-11-99
    
    
    4.110.1
    
    Amended and Restated Executive Employment
Agreement for James P. Panek, effective February
1, 2009.
    
    8-K
    
    000-26483
    
    1-29-09
    
    
    10.131.1
    
    Rule 13a-14(a)/15d-14(a) Certification
    
    10-Q
    
    
    
    
    
    
    
    
    
    X32.1
    
    Section 1350 Certification
    
    10-Q
    
    
    
    
    
    
    
    
    
    X
  21




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Signatures
  VaxGen, Inc.Dated:May 4, 2009
    By:
    /s/ James P. PanekJames P. PanekPresident
(Principal Executive,  Financial and Accounting Officer)  22




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##### Table of Contents



EXHIBIT INDEX
 Incorporated by ReferenceExhibit
    
    
    
    
    
    
    
    
    
    Exhibit
    
    FiledNo.
    
    Exhibit
    
    Form
    
    File No.
    
    Filing Date
    
    No.
    
    Herewith2.1
    
    Agreement and Plan of Merger, dated November 12,
2007, by and among VaxGen, Inc., TLW Merger Sub,
Inc., TLW, LLC, and Raven biotechnologies, inc.
    
    8-K
    
    000-26483
    
    11-13-07
    
    
    2.12.2
    
    Amendment No. 1 to Agreement and Plan of Merger,
dated December 20, 2007, by and among VaxGen,
Inc., TLW Merger Sub, Inc., TLW, LLC, and Raven
biotechnologies, inc.
    
    S-4
    
    333-148312
    
    12-24-07
    
    
    2.22.3
    
    Amendment No. 2 to Agreement and Plan of Merger,
dated February 6, 2008, by and among VaxGen, Inc.,
TLW Merger Sub, Inc., TLW, LLC, and Raven
biotechnologies, inc.
    
    S-4/A
    
    333-148312
    
    02-06-08
    
    
    2.33.1
    
    Amended and Restated Certificate of Incorporation.
    
    S-8
    
    333-84922
    
    3-26-02
    
    
    4.13.2
    
    Amendment to the Amended and Restated Certificate
of Incorporation.
    
    S-8
    
    333-84922
    
    3-26-02
    
    
    4.33.4
    
    Amended and Restated Bylaws, dated as of May 18,
2007.
    
    8-K
    
    000-26483
    
    05-23-07
    
    
    3.13.5
    
    Amendment to the Amended and Restated Certificate
of Incorporation, dated as of August 10, 2005.
    
    10-Q
    
    0-26483
    
    05-31-07
    
    
    3.44.1
    
    Reference is made to Exhibits 3.1, 3.2, 3.4 and 3.54.2
    
    Certificate of Designations, Rights and
Preferences of Series A 6% Cumulative Convertible
Preferred Stock.
    
    S-8
    
    333-84922
    
    3-26-02
    
    
    4.24.3
    
    Securities Purchase Agreement by and among
Registrant and Certain Stockholders.
    
    8-K
    
    000-26483
    
    5-24-01
    
    
    10.14.4
    
    Registrant Rights Agreement by and among
Registrant and Certain Stockholders.
    
    8-K
    
    000-26483
    
    5-24-01
    
    
    10.24.5
    
    Form of Common Stock Purchase Warrant.
    
    8-K
    
    000-26483
    
    5-24-01
    
    
    4.14.6
    
    Specimen Stock Certificate for Common Stock of
Registrant.
    
    S-1
    
    333-78065
    
    6-11-99
    
    
    4.110.1
    
    Amended and Restated Executive Employment
Agreement for James P. Panek, effective February
1, 2009.
    
    8-K
    
    000-26483
    
    1-29-09
    
    
    10.131.1
    
    Rule 13a-14(a)/15d-14(a) Certification
    
    10-Q
    
    
    
    
    
    
    
    
    
    X32.1
    
    Section 1350 Certification
    
    10-Q
    
    
    
    
    
    
    
    
    
    X
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