As filed with the Securities and Exchange Commission on February 20, 2013
Registration No. 333-181409
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AEOLUS PHARMACEUTICALS, INC.
(Exact Name of Issuer in Its Charter)
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Delaware
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2834
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56-1953785
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Number)
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(I.R.S. Employer
Identification No.)
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Aeolus Pharmaceuticals, Inc.
26361 Crown Valley Parkway, Suite 150
Mission Viejo, California 92691
(949) 481-9825
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
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John McManus
President and Chief Executive Officer
Aeolus Pharmaceuticals, Inc.
26361 Crown Valley Parkway, Suite 150
Mission Viejo, California 92691
(949) 481-9825
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications to:
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Michael A. Hedge
Jeffrey J. Plumer
K&L Gates LLP
1 Park Plaza, Twelfth Floor
Irvine, California 92614
(949) 253-0900
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Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
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.
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Accelerated filer |
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Smaller reporting company |
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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EXPLANATORY NOTE
The purpose of this Post-Effective Amendment No. 2 to the Registration Statement on Form S-1, as amended (Registration No. 333-181409), is solely to furnish, in accordance with Rule 405 of Regulation S-T, Exhibit 101 to the Post-Effective Amendment on Form S-1 of Aeolus Pharmaceuticals, Inc., which was filed with the Securities and Exchange Commission on February 20, 2013 (“Post-Effective Amendment No. 1”), and to update the Exhibit Index. Exhibit 101 to this Post-Effective Amendment No. 2 provides the financial statements and related notes from Post-Effective Amendment No. 1 formatted in XBRL (Extensible Business Reporting Language).
No other changes have been made to the registration statement filed as Post-Effective Amendment No. 1. This Post-Effective Amendment No. 2 speaks as of the original date of Post-Effective Amendment No. 1, does not reflect events that may have occurred subsequent to the original filing date, and does not modify or update in any way disclosures made in Post-Effective Amendment No. 1.
Pursuant to Rule 406T of Regulation S-T, the interactive data files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and are otherwise not subject to liability under those sections.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses to be paid in connection with the sale of shares being registered, all of which we will pay. All amounts, other than the SEC registration fee are estimates.
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SEC registration fee
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$ 3,059.89
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Legal fees and expenses
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10,000
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Accounting fees and expenses
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22,000
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Miscellaneous
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4,000
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Total
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$ 39,059.89
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Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the “DGCL”) generally provides that a director or officer of a corporation (i) shall be indemnified by the corporation for all expenses of such legal proceedings when he or she is successful on the merits, (ii) may be indemnified by the corporation for the expenses, judgments, fines and amounts paid in settlement of such proceedings (other than a derivative suit), even if he or she is not successful on the merits, if he or she acts in good faith and in a manner he or she reasonably believes to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceedings, had no reasonable cause to believe his or her conduct was unlawful, and (iii) may be indemnified by the corporation for the expenses of a derivative suit (a suit by a stockholder alleging a breach by a director or officer of a duty owed to the corporation), even if he or she is not successful on the merits, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interest of the corporation. No indemnification may be made under clause (iii) above, however, if the director or officer is adjudged liable for negligence or misconduct in the performance of his or her duties to the corporation, unless a corporation determines that, despite such adjudication, but in view of all the circumstances, he or she is entitled to indemnification. The indemnification described in clauses (ii) and (iii) above may be made upon a determination that indemnification is proper because the applicable standard of conduct has been met. Such a determination may be made by a majority of a quorum of disinterested directors, independent legal counsel, the stockholders or a court of competent jurisdiction.
The registrant’s certificate of incorporation and Bylaws provide in substance that, to the fullest extent permitted by Delaware law as it now exists or as amended, each director and officer shall be indemnified against reasonable costs and expenses, including attorneys’ fees and any liabilities which he or she may incur in connection with any action to which he or she may be made a party by reason or his or her being or having been a director or officer of the registrant or any of its affiliated enterprises. The indemnification provided by the registrant’s Bylaws is not deemed exclusive of or intended in any way to limit any other rights to which any person seeking indemnification may be entitled.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The registrant’s Certificate of Incorporation provides for the elimination of personal liability of a director for breach of fiduciary duty, as permitted by Section 102(b)(7) of the DGCL.
We have directors’ and officers’ liability insurance which provides, subject to certain policy limits, deductible amounts and exclusions, coverage for all persons who have been, are or may in the future be, directors or officers of Aeolus Pharmaceuticals, Inc., against amounts which such persons may pay resulting from claims against them by reason of their being such directors or officers during the policy period for certain breaches of duty, omissions or other acts done or wrongfully attempted or alleged. Such policies provide coverage in certain situations where we cannot directly provide indemnification under the DGCL.
Item 15. Recent Sales of Unregistered Securities
The following is a summary of transactions by us from January 1, 2009 through the date of this registration statement involving sales of our securities that were not registered under the Securities Act of 1933, as amended, or the Securities Act.
1. On January 31, 2009, we issued to two accredited investors an aggregate of 79,838 shares of its common stock for payment of interest in accordance with the terms of the certain convertible notes issued to such investors in 2008 (the “2008 Notes”).
2. On March 30, 2009, Aeolus entered into a Securities Purchase Agreement (the “Purchase Agreement”) with two accredited institutional investors (the “March 2009 Investors”) pursuant to which the Company sold and issued to the March 2009 Investors in a private placement an aggregate of 5,357,143 units (the “March 2009 Units”), comprised of an aggregate of 5,357,143 shares of common stock of the Company and warrants to purchase up to an aggregate of 13,392,857 additional shares of common stock (the “March 2009 Warrants”), with an initial exercise price of $0.35 per share, subject to adjustment as provided in the March 2009 Warrants, with each March 2009 Unit representing one share of common stock and a March 2009 Warrant to purchase two-and-one-half shares of common stock, at a purchase price of $0.28 per March 2009 Unit for aggregate gross proceeds of $1,500,000 (collectively, the “March 2009 Financing”). Offering costs of the March 2009 Financing were $91,000 resulting in net proceeds to the Company of approximately $1,400,000. The Company has used, and intends to continue to use, the net proceeds from the March 2009 Financing to finance the development of AEOL 10150 and to fund ongoing operations of the Company.
3. On October 6, 2009, the Company entered into the October 2009 Purchase Agreement with several accredited institutional investors (the “October 2009 Investors”) pursuant to which the Company sold and issued to the October 2009 Investors in a private placement an aggregate of 5,892,857 units (the “October 2009 Units”), comprised of an aggregate of 5,892,857 shares of common stock (the “October 2009 Shares”) and warrants to purchase up to an aggregate of 11,785,714 additional shares of common stock (the “October 2009 Warrants”), with an initial exercise price of $0.28 per share, subject to adjustment as provided in the October 2009 Warrants, with each October 2009 Unit representing one share of common stock and a October 2009 Warrant to purchase two shares of common stock, at a purchase price of $0.28 per October 2009 Unit for aggregate gross proceeds of $1,650,000 (collectively, the “October 2009 Financing”).
The Company also granted to the October 2009 Investors the option to acquire, collectively, up to an additional 5,892,857 October 2009 Units (the “Additional Units”), comprised of an aggregate of 5,892,857 shares of common stock and warrants to purchase up to an aggregate of 11,785,714 additional shares of common stock at the per Additional Unit purchase price of $0.28 (the “October 2009 Call Option”). In addition, the October 2009 Investors granted to the Company the option to require these October 2009 Investors, severally and not jointly, to acquire up to 5,892,857 Additional Units, less any Additional Units acquired under the October 2009 Call Option, at the per Additional Unit purchase price of $0.28 (the “October 2009 Put Option”). The October 2009 Call Option was exercisable at any time, and from time to time, on or prior to June 30, 2010. The October 2009 Put Option was exercisable at any time from June 30, 2010 to July 30, 2010. On July 30, 2010, the Company exercised the October 2009 Put Option in full for $1,650,000 in gross cash proceeds and issued 5,892,857 shares of common stock and 11,785,714 warrants to the October 2009 Investors.
In addition, the October 2009 Investors agreed to convert all $1,000,000 in principal amount of certain the 2008 Notes into common stock of the Company at a conversion rate of $0.35 per share (the “Conversion Shares”), which was subsequently lowered to $0.28 as discussed below, and to exchange their remaining option to purchase an additional $4,000,000 in 2008 Notes for warrants to purchase up to 14,285,714 shares of common stock in substantially the same of form and terms of the October 2009 Warrants issued in the October 2009 Financing, including an initial exercise price of $0.28 per share, subject to adjustment as provided in the warrants (the “Note Warrants”). As consideration for the October 2009 Investors to convert the 2008 Notes, the Company agreed to exchange warrants to purchase up to 2,000,000 shares of common stock issued to the October 2009 Investors in connection with the sale of the 2008 Notes, warrants to purchase up to 2,150,000 shares of common stock issued to the October 2009 Investors and one of their affiliates in connection with a financing completed in November 2005 and warrants to purchase up to 13,392,857 shares of common stock issued to the October 2009 Investors in connection with a financing completed in March 2009 (collectively, the “Prior Warrants”) for warrants to purchase up to an aggregate of 17,542,857 shares of common stock in substantially the same form and terms of the October 2009 Warrants issued in the October 2009 Financing, including an initial exercise price of $0.28 per share, subject to adjustment pursuant to the warrants (the “Exchange Warrants”) (collectively, the “Conversion”).
The net proceeds to the Company from the October 2009 Financing, after deducting for expenses, were approximately $1,600,000. The Company has used, and intends to continue to use, the net proceeds from the October 2009 Financing to finance animal efficacy studies in Acute Radiation Syndrome, the development of AEOL 10150 and ongoing operations of the Company.
On December 24, 2009, the Company entered into an amendment (the “Amendment”) to the October 2009 Purchase Agreement pursuant to which the Company agreed to lower the conversion price of the 2008 Notes from $0.35 per share to $0.28 per share and as a result, issued to the investors in the Company’s October 2009 Financing an additional 714,286 shares of the Company’s common stock upon conversion of the 2008 Notes (the “Issuance”). The Agreement was executed to resolve a misunderstanding regarding one of the financing terms between the Company and the October 2009 Investors. The Company did not receive any proceeds from the Issuance. The fair value of the common stock on the date of issuance was $343,000 and was charged to the Statement of Operations as interest expense.
On July 30, 2010, the Company exercised the October 2009 Put Option. As a result of the exercise, the Company received $1.65 million in gross proceeds from the investors in exchange for 5,892,857 additional Units (the “Additional Units”), comprised of an aggregate of 5,892,857 shares of common stock and warrants to purchase up to an aggregate of 11,785,714 additional shares of common stock at a purchase price of $0.28 per share.
Net cash proceeds from the exercise of the October 2009 Put Option were approximately $1.6 million after legal costs associated with the exercise and subsequent issuance of stock and warrants.
4. On August 12, 2010, the Company announced an additional financing with certain existing investors (the “August 2010 Investors”). Under the terms of the agreement, the Company received $1,000,000 in gross proceeds in exchange for the issuance of 2,500,000 shares of common stock and warrants to purchase up to 1,875,000 shares at an exercise price of $0.50 per share. The Company also granted to the August 2010 Investors the option to acquire, collectively, up to an additional 2,500,000 units, comprised of an aggregate of 2,500,000 shares of common stock and warrants to purchase up to an aggregate of 1,875,000 additional shares of common stock at an exercise price of $0.50 (the “August 2010 Call Option”). In addition, the August 2010 Investors granted to the Company the option to require these August 2010 Investors, severally and not jointly, to acquire up to 2,500,000 additional units, less any additional units acquired under the August 2010 Call Option, at the per additional unit purchase price of $0.40 (the “August 2010 Put Option”). On December 28, 2010, the investors exercised their Call Option and the Company received $1 million in proceeds in exchange for 2,500,000 common shares and 1,875,000 warrants.
Net cash proceeds from the August 2010 Financing, after deducting for expenses, were approximately $900,000. The Company has used, and continues to use the proceeds from the August 2010 Financing to fund the manufacture of AEOL 10150, studies of the efficacy of AEOL 10150 in cancer patients, the pre-clinical development of other Aeolus compounds and ongoing operations of the Company
5. On December 28, 2010, the investors exercised their Call Option and the Company received $1,000,000 in proceeds in exchange for 2,500,000 common shares and 1,875,000 warrants, with an initial exercise price of $0.50 per share, subject to adjustment as provided in the warrants (the “Additional Warrants”). The Additional Warrants are exercisable for a seven-year period from their date of issuance; contain a “cashless exercise” feature that allows the holder to exercise the Additional Warrants without a cash payment to the Company under certain circumstances; contain a dividend participation right which allows the holder to receive any cash dividends paid on the common stock without exercising the Additional Warrant; contain a provision that provides for the reduction of the exercise price to $0.01 in the event of any such payment of cash dividends by the Company or upon a change of control; and contain anti-dilution provisions in the event of a stock dividend or split, dividend payment or other issuance, reorganization, recapitalization or similar event.
The net cash proceeds to the Company from the December 2010 financing, after deducting for expenses, were approximately $990,000.
6. In consideration for services provided by Dan Delmonico to us, we issued three warrants each to purchase up to 20,000, 15,000 and 15,000 shares of our common stock with an exercise price of $0.39, $.50 and $0.60, respectively. The warrants are exercisable for five years from the date of grant and contain standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock.
7. In January 2010, we entered into an agreement with National Securities Corporation (“NSC”) pursuant to which we retained NSC as a non-exclusive financial advisor for the period from January 6, 2010 through January 6, 2011. For these services, we issued a warrant to purchase up to 50,000 shares of our common stock with an exercise price of $0.38. The warrant is exercisable for five years from the date of grant and contains standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock.
8. In May 2011, we entered into an agreement with Michael Kruger as a consultant to assist us with investor relations for a one-year period. For these services, on May 10, 2011, we issued five warrants, each to purchase up to 50,000 shares of our common stock with an exercise price of $0.50, $1.00, $1.50, $2.00 and $2.50 and vesting dates of May 10, 2011, August 8, 2011, November 6, 2011, February 4, 2012 and May 4, 2012, respectively. The warrants are exercisable for five years from the date of grant and contain standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock. In addition, we are required to give Kruger advance notice of a change in control of Aeolus during the term of the warrants. We terminated the agreement with Kruger on July 29, 2011, and the warrants to purchase shares of our common stock with the exercise prices of $1.00, $1.50, $2.00 and $2.50 were cancelled concurrently with the termination of our agreement with Kruger.
9. In May 2011, we entered into an agreement with Noble International Investments, Inc. (“Noble”) to provide us with financial advisory services in connection our strategic initiatives for a one-year period. For these services, on May 18, 2011, we issued three warrants each to purchase up to 100,000 shares of our common stock with an exercise price of $0.50, $1.00 and $1.50, respectively, and vesting at a rate of 8,333 shares of our common stock per month. The warrants are exercisable for three years from the date of grant and contain standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock. In addition, we are required to give Noble advance notice of a change in control of Aeolus during the term of the warrants.
10. In June 2011, we entered into a consulting agreement with CEOcast to provide us with investor relations services for a one-year period. For these services, on June 1, 2011, we issued two warrants each to purchase up to 125,000 shares of our common stock with an exercise price of $0.51 and $1.00, respectively, and vesting at a rate of 10,416.67 shares of our common stock per month. The warrants are exercisable for three years from the date of grant and contain standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock. In addition, we are required to give CEOcast advance notice of a change in control of Aeolus during the term of the warrants.
11. In July 2011, we entered into an agreement with Market Pathways to assist us with investor relations for a one-year period. For these services, on July 22, 2011, we issued five warrants each to purchase up to 50,000 shares of our common stock with an exercise price of $0.50, $1.00, $1.50, $2.00 and $2.50 and vesting dates of July 22, 2011, October 20, 2011, January 18, 2012, April 17, 2012 and July 16, 2012, respectively. The warrants are exercisable for five years from the date of grant and contain standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock. In addition, we are required to give Market Pathways advance notice of a change in control of Aeolus during the term of the warrants.
12. On February 7, 2011, the maturity date of a promissory note held by Elan Corporation, plc, (“Elan”), the Company elected to exercise its right to repay the note, with a maturity value of $663,000, by issuing 50,993 shares of Series B Stock and a warrant to purchase an aggregate of 896,037 shares of Series B Stock at an exercise price of $0.01 per share. The warrant has a term of five years, a cashless exercise provision and customary anti-dilution adjustments in the event of stock splits, stock combination, reorganizations and similar events. The transactions were deemed to be exempt from registration under the Securities Act in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated thereunder as transactions by an issuer not involving any public offering. Elan represented its intention to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the securities issued in these transactions. In addition, Elan had adequate information about the Company, or had adequate access, through its relationships with the Company, to information about the Company.
13. In March and April 2012, we entered into securities purchase agreements with certain accredited investors in which we issued t to the selling stockholders named in this prospectus units consisting of an aggregate of (i) 2,200,166 shares of common stock and (ii) warrants to purchase up to 1,650,126 shares of common stock. Each of the warrants is exercisable at an exercise price of $0.40 per share of common stock. In connection with the private placement, we paid a cash fee of 7% and issued a warrant equal to 5% of the number of units purchased by Lincoln Park Capital Fund, LLC to co-placement agents.
Unless otherwise disclosed above, the offerings of the securities above were exempt from registration under Section 4(2) of the Securities Act, and Regulation D promulgated thereunder. In each instance, we had a reasonable belief that, among other things, the purchasers had access to information concerning our operations and financial condition, that the purchasers acquired the securities for their own account and not with a view to the distribution thereof, and that each purchaser was an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act. In addition, there was no general solicitation or general advertising related to any of such offerings.
14. In June 2012, we entered into an advisory agreement with Roberts Mitani, LLC whereby we engaged Roberts Mitani, LLC to serve as an advisor to provide strategic advisory services to us on a non-exclusive basis. For these services, on June 26, 2012, we issued a warrant to purchase up to 300,000 shares of our Common Stock with a per share exercise price of $0.258. The warrant is exercisable for seven years from the date of grant and contains standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock.
15. In August 2012, we entered into an advisory agreement with Columbia Capital Securities, Inc. and Monarch Bay Associates, LLC whereby we engaged them to serve as an advisor to provide strategic advisory services to us on a non-exclusive basis. For these services, we have agreed to pay each of Columbia Capital Securities, Inc. and Monarch Bay Associates, LLC a monthly retainer in the form of a warrant to purchase up to an aggregate of 17,500 shares of Common Stock, commencing on August 17, 2012 and continuing monthly thereafter during the term of their engagement under the advisory agreement. Each of these warrants has an exercise price equal to the closing price of the Common Stock on the date of issuance, is deemed fully vested upon issuance, is exercisable at any time on or before the five year anniversary of the date of issuance and contains standard adjustment provisions in the event we declare a stock dividend or engage in a recapitalization, reclassification or reorganization of our capital stock. On August 17, 2012, we issued a warrant to purchase up to an aggregate of 17,500 shares of Common Stock with a per share exercise price of $0.30 to each of Columbia Capital Securities, Inc. and Monarch Bay Associates, LLC. On September 17, 2012, we issued a warrant to purchase up to an aggregate of 17,500 shares of Common Stock with a per share exercise price of $0.44 to each of Columbia Capital Securities, Inc. and Monarch Bay Associates, LLC.
Other than as disclosed above, we did not employ any underwriters, placement agents, brokers, finders or financial advisors in connection with any of the transactions set forth above.
Item 16. Exhibits and Financial Statement Schedules
The exhibits set forth commencing on page II-8 are incorporated herein by reference.
(b) Financial Statement Schedules
All schedules have been omitted because the information required to be presented in them is not applicable or is shown in the financial statements or related notes.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) That for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.
(2) That for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mission Viejo, California, on the 20th day of February, 2013.
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AEOLUS PHARMACEUTICALS, INC.
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By:
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/s/ John McManus
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John McManus
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment No. 2 to Registration Statement on Form S-1 has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ John L. McManus
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President and Chief Executive Officer
(principal executive officer)
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February 20, 2013
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John L. McManus
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/s/Russell Skibsted
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Chief Financial Officer (principal financial and accounting officer)
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February 20, 2013
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Russell Skibsted
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*
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John M. Farah, Jr., Ph.D.
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Director
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February 20, 2013
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*
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Joseph J. Krivulka.
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Director
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February 20, 2013
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*
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Amit Kumar, Ph.D.
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Director
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February 20, 2013
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*
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Michael E. Lewis, Ph.D.
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Director
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February 20, 2013
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*
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Chris A. Rallis
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Director
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February 20, 2013
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*
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Peter D. Suzdak, Ph.D.
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Director
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February 20, 2013
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*By: /s/Russell Skibsted
Russell Skibsted, Attorney-in-Fact
EXHIBIT INDEX
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Incorporated by Reference To
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Exhibit
Number
|
|
Description of Document
|
|
Registrant’s
Form
|
|
Date Filed
with the SEC
|
|
Exhibit
Number
|
|
Filed
Herewith
|
|
2.1
|
|
Agreement and Plan of Merger and Reorganization dated September 16, 2003 between Incara, Inc. and Incara Pharmaceuticals Corporation
|
|
S-4
|
|
09/19/03
|
|
2.1
|
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation
|
|
10-K
|
|
12/31/12
|
|
3.1
|
|
|
|
4.1
|
|
Form of Common Stock Certificate
|
|
10-Q
|
|
08/11/04
|
|
4.1
|
|
|
|
4.2
|
|
Form of Series B Preferred Stock Certificate
|
|
S-4
|
|
09/19/03
|
|
4.8
|
|
|
|
4.3
|
|
Form of Warrant to Purchase Common Stock dated June 5, 2006.
|
|
8-K
|
|
06/06/06
|
|
10.3
|
|
|
|
4.4
|
|
Registration Rights Agreement dated May 22, 2007 by and among the Company and each of the Purchasers whose names appear on the Schedule attached thereto.
|
|
8-K
|
|
5/23/07
|
|
4.1
|
|
|
|
4.5
|
|
Registration Rights Agreement dated October 6, 2009 by and among the Company and the investors whose names appear on the signature pages thereof.
|
|
8-K
|
|
10/06/09
|
|
4.1
|
|
|
|
4.6
|
|
Form of Warrant to Purchase Common Stock dated May 22, 2007.
|
|
8-K
|
|
5/23/07
|
|
10.2
|
|
|
|
4.7
|
|
Form of Warrant to Purchase Common Stock
|
|
8-K
|
|
10/06/09
|
|
10.2
|
|
|
|
4.8
|
|
Registration Rights Agreement dated September 16, 2003 among Incara Pharmaceuticals Corporation, Incara, Inc. and Goodnow Capital, L.L.C.
|
|
S-4
|
|
09/19/03
|
|
10.101
|
|
|
|
4.9
|
|
Registration Rights Agreement dated August 11, 2010 by and among Aeolus Pharmaceuticals, Inc. and the investors listed therein
|
|
8-K
|
|
8/12/10
|
|
4.1
|
|
|
|
5.1
|
|
Opinion of K&L Gates LLP
|
|
S-1
|
|
5/14/12
|
|
5.1
|
|
|
|
10.1*
|
|
License Agreement between Duke University and Aeolus Pharmaceuticals, Inc., dated July 21, 1995
|
|
S-1
|
|
12/08/95
|
|
10.4
|
|
|
|
10.2
|
|
Amended and Restated Limited Liability Company Agreement of CPEC LLC dated July 15, 1999, among CPEC LLC, Intercardia, Inc. and Interneuron Pharmaceuticals, Inc.
|
|
8-K
|
|
07/23/99
|
|
10.42
|
|
|
|
10.3
|
|
Assignment, Assumption and License Agreement dated July 15, 1999, between CPEC LLC and Intercardia, Inc.
|
|
8-K
|
|
07/23/99
|
|
10.43
|
|
|
|
10.4*
|
|
License Agreement dated January 19, 2001 between Incara Pharmaceuticals Corporation and Incara Development, Ltd.
|
|
10-Q
|
|
02/13/01
|
|
10.59
|
|
|
|
10.5*
|
|
License Agreement dated January 19, 2001 between Elan Corporation, plc, Elan Pharma International Ltd. and Incara Development, Ltd.
|
|
10-Q
|
|
02/13/01
|
|
10.60
|
|
|
|
10.6
|
|
Registration Rights Agreement dated December 21, 2000 among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Ltd.
|
|
10-Q
|
|
02/13/01
|
|
10.62
|
|
|
|
10.7
|
|
Agreement and Amendment, effective as of January 22, 2001, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
|
|
10-Q
|
|
05/14/01
|
|
10.64
|
|
|
|
10.8
|
|
Second Agreement and Amendment, effective as of January 22, 2001, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
|
|
10-Q
|
|
05/14/01
|
|
10.65
|
|
|
| |
|
|
|
Incorporated by Reference To
|
|
|
|
Exhibit
Number
|
|
Description of Document
|
|
Registrant’s
Form
|
|
Date Filed
with the SEC
|
|
Exhibit
Number
|
|
Filed
Herewith
|
|
10.9
|
|
Third Agreement and Amendment, effective as of January 22, 2001, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
|
|
8-K
|
|
06/01/01
|
|
10.66
|
|
|
|
10.10
|
|
Agreement and Fourth Amendment, effective February 13, 2002, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd., Elan Pharma International Limited and Elan Pharmaceutical Investments III, Ltd.
|
|
10-Q
|
|
02/14/02
|
|
10.75
|
|
|
|
10.11*
|
|
License Agreement dated June 25, 1998 between Duke University and Aeolus Pharmaceuticals, Inc.
|
|
10-Q
|
|
05/15/02
|
|
10.82
|
|
|
|
10.12*
|
|
License Agreement dated May 7, 2002 between Duke University and Aeolus Pharmaceuticals, Inc.
|
|
10-Q
|
|
05/15/02
|
|
10.83
|
|
|
|
10.13*
|
|
License Agreement dated November 17, 2000 between National Jewish Medical and Research Center and Aeolus Pharmaceuticals, Inc.
|
|
10-Q
|
|
02/13/01
|
|
10.56
|
|
|
|
10.14
|
|
Exclusive License Agreement, dated January 15, 2009, by and between the Company and National Jewish Health
|
|
10-Q
|
|
05/16/11
|
|
10.7
|
|
|
|
10.15*
|
|
Securities Purchase Agreement dated as of May 15, 2002, among Incara Pharmaceuticals Corporation, Aeolus Pharmaceuticals, Inc., Elan Pharma International Limited and Elan International Services, Ltd.
|
|
8-K/A
|
|
07/03/02
|
|
10.84
|
|
|
|
10.16*
|
|
Development and Option Agreement dated May 15, 2002, among Elan Pharma International Limited, Incara Pharmaceuticals Corporation and Aeolus Pharmaceuticals, Inc.
|
|
8-K/A
|
|
07/03/02
|
|
10.85
|
|
|
|
10.17
|
|
Amended and Restated Registration Rights Agreement dated as of May 15, 2002, among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
|
|
8-K/A
|
|
07/03/02
|
|
10.86
|
|
|
|
10.18
|
|
Amendment No. 1 to License Agreement dated May 14, 2002, between Aeolus Pharmaceuticals, Inc. and Duke University (amending License Agreement dated July 21, 1995)
|
|
8-K/A
|
|
07/03/02
|
|
10.87
|
|
|
|
10.19
|
|
Amendment No. 1 to License Agreement dated May 14, 2002, between Aeolus Pharmaceuticals, Inc. and Duke University (amending License Agreement dated June 25, 1998)
|
|
8-K/A
|
|
07/03/02
|
|
10.88
|
|
|
|
10.20
|
|
Amendment No. 1 to License Agreement dated May 14, 2002, between Aeolus Pharmaceuticals, Inc. and National Jewish Medical and Research Center (amending License Agreement dated November 17, 2000)
|
|
8-K/A
|
|
07/03/02
|
|
10.89
|
|
|
|
10.21*
|
|
Subaward Agreement, dated March 16, 2011, by and between the Company and the Office of Research and Development of the University of Maryland, Baltimore
|
|
10-Q
|
|
05/16/11
|
|
10.4
|
|
|
|
10.22
|
|
Letter dated May 17, 2004 from Elan International Services, Limited and Elan Pharma International Limited to Incara Pharmaceuticals Corporation
|
|
10-Q
|
|
08/11/04
|
|
10.106
|
|
|
|
10.23+
|
|
Aeolus Pharmaceuticals, Inc. 1994 Stock Option Plan, as amended
|
|
10-Q
|
|
08/11/04
|
|
10.109
|
|
|
|
10.24+
|
|
Aeolus Pharmaceuticals, Inc. Amended and Restated 2004 Stock Incentive Plan
|
|
S-8
|
|
04/28/11
|
|
99.1
|
|
|
| |
|
|
|
Incorporated by Reference To
|
|
|
|
Exhibit
Number
|
|
Description of Document
|
|
Registrant’s
Form
|
|
Date Filed
with the SEC
|
|
Exhibit
Number
|
|
Filed
Herewith
|
|
10.25+
|
|
Amended and Restated Employment Agreement dated July 30, 2010 between Aeolus Pharmaceuticals, Inc. and John L. McManus
|
|
8-K
|
|
08/02/10
|
|
10.4
|
|
|
|
10.26+
|
|
Letter Agreement dated July 10, 2006 between Aeolus Pharmaceuticals, Inc. and McManus & Company, Inc.
|
|
8-K
|
|
07/10/06
|
|
10.2
|
|
|
|
10.27+
|
|
Form of Indemnity Agreement
|
|
10-K
|
|
12/27/11
|
|
10.27
|
|
|
|
10.28
|
|
Terms of Outside Director Compensation
|
|
10-K
|
|
12/17/04
|
|
10.114
|
|
|
|
10.29+
|
|
Form of Incentive Stock Option Agreement
|
|
10-Q
|
|
02/08/05
|
|
10.115
|
|
|
|
10.30+
|
|
Form of Nonqualified Stock Option Agreement
|
|
10-Q
|
|
02/08/05
|
|
10.116
|
|
|
|
10.31
|
|
Subscription Agreement dated June 5, 2006 by and between the Company and the investors whose names appear on the signature pages thereof.
|
|
8-K
|
|
06/06/06
|
|
10.1
|
|
|
|
10.32
|
|
Board Observer Letter dated June 5, 2006 by and among the Company and Efficacy Biotech Master Fund Ltd.
|
|
8-K
|
|
06/06/06
|
|
10.6
|
|
|
|
10.33+
|
|
Consulting Agreement, dated December 1, 2010, between Aeolus Pharmaceuticals, Inc. and Brian J. Day
|
|
8-K
|
|
12/03/10
|
|
10.1
|
|
|
|
10.34*
|
|
Sponsored Research Agreement (Non-Clinical), dated April 12, 2011, by and between the Company and Duke University
|
|
10-Q
|
|
05/16/11
|
|
10.5
|
|
|
|
10.35
|
|
Securities Purchase Agreement dated August 11, 2010 by and among Aeolus Pharmaceuticals, Inc. and the investors listed therein
|
|
8-K
|
|
8/12/10
|
|
10.1
|
|
|
|
10.36
|
|
Form of Warrant pursuant to Securities Purchase Agreement dated August 11, 2010 by and among Aeolus Pharmaceuticals, Inc. and the investors listed therein
|
|
8-K
|
|
8/12/10
|
|
10.2
|
|
|
|
10.37
|
|
Convertible Promissory Note dated February 7, 2007 issued by Aeolus Pharmaceuticals, Inc. to Elan Pharma International Ltd.
|
|
S-1
|
|
06/04/07
|
|
10.43
|
|
|
|
10.38
|
|
Amendment No. 1 To Convertible Promissory Note dated February 7, 2009 by and between Aeolus Pharmaceuticals, Inc. and Elan Pharma International Limited
|
|
8-K
|
|
3/16/09
|
|
10.1
|
|
|
|
10.39+
|
|
Form of Restricted Share Award Agreement
|
|
S-8 POS
|
|
3/31/08
|
|
99.2
|
|
|
|
10.40
|
|
Securities Purchase and Exchange Agreement dated October 6, 2009 by and among the Company and the investors whose names appear on the signature pages thereof
|
|
8-K
|
|
10/06/09
|
|
10.1
|
|
|
|
10.41
|
|
Amendment Agreement to the Securities Purchase and Exchange Agreement, dated December 24, 2009, by and among the Company and the investors whose names appear on the signature pages thereof
|
|
8-K
|
|
12/28/09
|
|
10.1
|
|
|
|
10.42+
|
|
Offer Letter, dated September 1, 2010 between the Company and Russell Skibsted
|
|
8-K
|
|
02/16/11
|
|
10.1
|
|
|
|
10.43*
|
|
Contract No. HHSO100201100007C, dated February 11, 2011, by and between the Company and the U.S. Department of Health and Human Services Biomedical Advanced Research and Development Authority
|
|
10-Q
|
|
05/16/11
|
|
10.1
|
|
|
|
10.44*
|
|
Research and Manufacturing Agreement, dated February 18, 2011 (the “JMPS Agreement”), by and between the Company and Johnson Matthey Pharmaceutical Materials, Inc. (d/b/a Johnson Matthey Pharma Services).
|
|
10-Q
|
|
05/16/11
|
|
10.2
|
|
|
| |
|
|
|
Incorporated by Reference To
|
|
|
|
Exhibit
Number
|
|
Description of Document
|
|
Registrant’s
Form
|
|
Date Filed
with the SEC
|
|
Exhibit
Number
|
|
Filed
Herewith
|
|
10.45*
|
|
Appendix 2 to the JMPS Agreement, dated February 18, 2011
|
|
10-Q
|
|
8/14/12
|
|
10.4
|
|
|
|
10.46*
|
|
Appendix 3 to the JMPS Agreement, dated April 30, 2012
|
|
10-Q
|
|
8/14/12
|
|
10.5
|
|
|
|
10.47*
|
|
Appendix 4 to the JMPS Agreement, dated April 30, 2012
|
|
10-Q
|
|
8/14/12
|
|
10.6
|
|
|
|
10.48*
|
|
Appendix 5 to the JMPS Agreement, dated April 30, 2012
|
|
10-Q
|
|
8/14/12
|
|
10.7
|
|
|
|
10.49*
|
|
Appendix 6 to the JMPS Agreement, dated April 30, 2012
|
|
10-Q
|
|
8/14/12
|
|
10.8
|
|
|
|
10.50*
|
|
General Management Consulting Assignment, dated February 23, 2011, by and between the Company and Booz Allen Hamilton Inc.
|
|
10-Q
|
|
05/16/11
|
|
10.3
|
|
|
|
10.51
|
|
Form of Securities Purchase Agreement by and among the Company and the investors whose names appear on the signature pages thereof
|
|
8-K
|
|
4/5/12
|
|
10.1
|
|
|
|
10.52
|
|
Form of Registration Rights Agreement by and among the Company and the investors party thereto
|
|
8-K
|
|
4/5/12
|
|
10.2
|
|
|
|
10.53
|
|
Form of Warrant issued to investors in March and April 2012
|
|
8-K
|
|
4/5/12
|
|
10.3
|
|
|
|
21.1
|
|
List of Subsidiaries
|
|
10-K
|
|
12/31/12
|
|
21.1
|
|
|
|
23.1
|
|
Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm
|
|
POS-AM
|
|
2/20/2013
|
|
23.1
|
|
|
|
23.2
|
|
Consent of K&L Gates LLP (included in its opinion filed as Exhibit 5.1)
|
|
S-1
|
|
5/14/12
|
|
5.1
|
|
|
|
24.1
|
|
Power of Attorney
|
|
S-1
|
|
5/14/12
|
|
5.1
|
|
|
|
101.INS†
|
|
XBRL Instance Document
|
|
|
|
|
|
|
|
X
|
|
101.SCH†
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
|
|
|
|
X
|
|
101.CAL†
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
|
|
|
|
X
|
|
101.DEF†
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
|
|
|
|
X
|
|
101.LAB†
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
|
|
|
|
X
|
|
101.PRE†
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
|
|
|
|
|
X
|
* The Company has received confidential treatment of certain portions of this agreement which have been omitted and filed separately with the U.S. Securities and Exchange Commission.
+ Indicates management contract or compensatory plan or arrangement.
† Attached as Exhibit 101 to this report are documents formatted in XBRL (Extensible Business Reporting Language). Users of this data are advised that, pursuant to Rule 406T of Regulation S-T, the interactive data file is deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is otherwise not subject to liability under these sections.
II-11