Edgar Filing: AEOLUS PHARMACEUTICALS, INC.

Ownership Submission

FORM 4

Check this box if no longer subject to Section 16. Form 4 or Form 5 obligations may continue. See Instruction 1(b).

UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP OF SECURITIES

Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940

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(Print or Type Responses)

1. Name and Address of Reporting Person ^*

Xmark Opportunity Partners, LLC

2. Issuer Name and Ticker or Trading Symbol
AEOLUS PHARMACEUTICALS, INC. [AOLS.OB]

5. Relationship of Reporting Person(s) to Issuer
(Check all applicable)

_____ Director	__X__ 10% Owner
_____ Officer (give title below)	_____ Other (specify below)

(Last)

(First)

(Middle)

90 GROVE STREET

3. Date of Earliest Transaction (Month/Day/Year)
08/01/2008

(Street)

RIDGEFIELD, CT 06877

4. If Amendment, Date Original Filed(Month/Day/Year)

6. Individual or Joint/Group Filing(Check Applicable Line)
_X_ Form filed by One Reporting Person
___ Form filed by More than One Reporting Person

(City)

(State)

(Zip)

Table I - Non-Derivative Securities Acquired, Disposed of, or Beneficially Owned

1.Title of Security (Instr. 3)	2. Transaction Date (Month/Day/Year)	2A. Deemed Execution Date, if any (Month/Day/Year)	3. Transaction Code (Instr. 8)		4. Securities Acquired (A) or Disposed of (D) (Instr. 3, 4 and 5)			5. Amount of Securities Beneficially Owned Following Reported Transaction(s) (Instr. 3 and 4)	6. Ownership Form: Direct (D) or Indirect (I) (Instr. 4)	7. Nature of Indirect Beneficial Ownership (Instr. 4)
			Code	V	Amount	(A) or (D)	Price
Common Stock, par value $0.01 per share	04/29/2008⁽¹⁾		P		20,000	A	$ 0.46	10,559,852 ⁽²⁾ ⁽³⁾ ⁽⁴⁾	I ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾	See Footnotes ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾

Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly.
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Table II - Derivative Securities Acquired, Disposed of, or Beneficially Owned
(e.g., puts, calls, warrants, options, convertible securities)

1. Title of Derivative Security
(Instr. 3)

2. Conversion or Exercise Price of Derivative Security

3. Transaction Date (Month/Day/Year)

3A. Deemed Execution Date, if any (Month/Day/Year)

4. Transaction Code
(Instr. 8)

5. Number of Derivative Securities Acquired (A) or Disposed of (D)
(Instr. 3, 4, and 5)

6. Date Exercisable and Expiration Date
(Month/Day/Year)

7. Title and Amount of Underlying Securities
(Instr. 3 and 4)

8. Price of Derivative Security
(Instr. 5)

9. Number of Derivative Securities Beneficially Owned Following Reported Transaction(s)
(Instr. 4)

10. Ownership Form of Derivative Security: Direct (D) or Indirect (I)
(Instr. 4)

11. Nature of Indirect Beneficial Ownership
(Instr. 4)

Code

(A)

(D)

Date Exercisable

Expiration Date

Title

Amount or Number of Shares

Senior Convertible Note

$ 0.35

08/01/2008

$ 500,000

⁽¹¹⁾

01/31/2011

Common Stock

1,428,571 ⁽⁶⁾ ⁽⁷⁾

⁽⁶⁾ ⁽⁷⁾

$ 500,000

I ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁶⁾ ⁽⁷⁾

See Footnotes ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁶⁾ ⁽⁷⁾

Warrants (right to buy)

$ 0.5

08/01/2008

1,000,000

⁽¹¹⁾

08/01/2013

Common Stock

1,000,000

⁽⁶⁾ ⁽⁷⁾

1,000,000

I ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁶⁾ ⁽⁷⁾

See Footnotes ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁶⁾ ⁽⁷⁾

Senior Convertible Note

$ 0.35

08/01/2008

J⁽⁸⁾⁽⁹⁾⁽¹⁰⁾

$ 500,000

⁽¹²⁾

⁽¹³⁾

Common Stock

1,428,571 ⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

$ 500,000

I ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

See Footnotes ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

Warrants (right to buy)

$ 0.5

08/01/2008

J⁽⁸⁾⁽⁹⁾⁽¹⁰⁾

1,000,000

⁽¹²⁾

⁽¹⁴⁾

Common Stock

1,000,000

⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

1,000,000

I ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

See Footnotes ⁽²⁾ ⁽³⁾ ⁽⁴⁾ ⁽⁵⁾ ⁽⁸⁾ ⁽⁹⁾ ⁽¹⁰⁾

Reporting Owners

Reporting Owner Name / Address	Relationships
Reporting Owner Name / Address	Director	10% Owner	Officer	Other
Xmark Opportunity Partners, LLC 90 GROVE STREET RIDGEFIELD, CT 06877		X

Signatures

XMARK OPPORTUNITY PARTNERS, LLC By: Xmark Capital Partners, LLC, its Managing Member By: Mitchell D. Kaye, its Chief Executive Officer /s/ Mitchell D. Kaye		08/05/2008
^**Signature of Reporting Person		Date

Explanation of Responses:

*	If the form is filed by more than one reporting person, see Instruction 4(b)(v).
**	Intentional misstatements or omissions of facts constitute Federal Criminal Violations. See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a).
(1)	The Acquisition on April 29, 2008 was eligible previously for deferred reporting in reliance on Rule 16a-6.
(2)	As of April 29, 2008, Xmark Opportunity Fund, L.P., a Delaware limited partnership ("Opportunity LP"), held 3,046,707 common shares, $0.01 par value per share (the "Common Shares"), of Aeolus Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and warrants to purchase up to 660,000 Common Shares of the Company at an exercise price of $0.50 per share. As of August 1, 2008, Opportunity LP held (i) 3,046,707 Common Shares of the Company, (ii) warrants to purchase up to 660,000 Common Shares of the Company at an exercise price of $0.50 per share, (iii) a 7% senior convertible note ("Note 1"), in the aggregate principal amount of $75,000, which is convertible into 214,285 Common Shares at a conversion rate of $0.35 per share subject to certain adjustments, and (iv) a warrant to purchase 150,000 Common Shares at an exercise price of $0.50 per share subject to certain adjustments ("Warrant 1"). All of the warrants may be exercised within 60 days of this filing.
(3)	As of April 29, 2008, Xmark Opportunity Fund, Ltd., a Cayman Islands exempted company ("Opportunity Ltd"), held 6,489,414 Common Shares of the Company and warrants to purchase up to 990,000 Common Shares of the Company at an exercise price of $0.50 per share. As of August 1, 2008 Opportunity Ltd held (i) 6,489,414 Common Shares of the Company, (ii) warrants to purchase up to 990,000 Common Shares of the Company at an exercise price of $0.50 per share, (iii) a 7% senior convertible note ("Note 2"), in the aggregate principal amount of $175,000, which is convertible into 500,000 Common Shares at a conversion rate of $0.35 per share subject to certain adjustments, and (iv) a warrant to purchase 350,000 Common Shares at an exercise price of $0.50 per share subject to certain adjustments ("Warrant 2"). All of the warrants may be exercised within 60 days of this filing.
(4)	As of April 29, 2008, Xmark JV Investment Partners, LLC, a Delaware limited liability company ("JV Partners"), held 1,023,731 Common Shares of the Company and warrants to purchase up to 500,000 Common Shares of the Company at an exercise price of $0.50 per share. As of August 1, 2008, JV Partners held (i) 1,023,731 Common Shares of the Company, (ii) warrants to purchase up to 500,000 Common Shares of the Company at an exercise price of $0.50 per share, (iii) a 7% senior convertible note ("Note 3"), in the aggregate principal amount of $250,000, which is convertible into 714,285 Common Shares at a conversion rate of $0.35 per share subject to certain adjustments, and a warrant to purchase 500,000 Common shares at an exercise price of $0.50 per share subject to certain adjustments ("Warrant 3"). All of the warrants may be exercised within 60 days of this filing.
(5)	The reporting person, Xmark Opportunity Partners, LLC, a Delaware limited liability company ("Opportunity Partners"), is the sole member of the investment manager of Opportunity LP and Opportunity Ltd, and the investment manager of JV Partners, and, as such, possesses sole power to vote and direct the disposition of all securities of the Company held by Opportunity LP, Opportunity Ltd and JV Partners. Opportunity Partners' interest in the securities reported herein is limited to the extent of its pecuniary interest in Opportunity LP, Opportunity Ltd and JV Partners, if any. Mitchell D. Kaye and David C. Cavalier, the Chief Executive Officer and Chief Operating Officer, respectively, of Xmark Capital Partners, LLC, the Managing Member of Opportunity Partners, share voting and investment power with respect to all securities beneficially owned by Opportunity Partners.
(6)	On August 1, 2008, the Company entered into a Securities Purchase Agreement ("SPA") with Opportunity LP, Opportunity Ltd and JV Partners (collectively, the "Investors"), pursuant to which, upon the satisfaction of certain conditions the Investors agreed to purchase for an aggregate purchase price of $1,000,000, units comprised of 7% senior convertible notes and warrants to purchase Common Shares from the Company. On August 1, 2008, the Company sold and issued to the Investors under the SPA an aggregate of 500 units ("Units"), collectively comprised of (i) Note 1, Note 2 and Note 3 (collectively, "Notes"), in the aggregate principal amount of $500,000, and (ii) Warrant 1, Warrant 2 and Warrant 3 (collectively, "Warrants"), which entitles the holder of Warrants to purchase in the aggregate up to 1,000,000 Common Shares at an exercise price of $0.50 per share subject to certain adjustments.
(7)	Each Unit consists of $1,000 in principal amount of 7% senior convertible notes and warrants to purchase up to 2,000 Common Shares at a purchase price of $1,000 per Unit. The Notes are convertible into Common Shares at a conversion price of $0.35 per share subject to certain adjustments, or up to approximately 1,428,571 Common Shares upon the conversion of all $500,000 in principal amount of the Notes. The Notes permit the Company, at its sole option, to pay interest in cash or Common Shares. The Notes and Warrants each contain an issuance limitation prohibiting the Investors from exercising those securities to the extent that such exercise would result in beneficial ownership by the Investors of more than 9.99% of the Common Shares then issued and outstanding, which prohibition cannot be removed by the holder before the 61st day after such holder's notice to the Company of its election to remove such prohibition.
(8)	Pursuant to the SPA, the Company agreed to sell and issue to the Investors over the four month period following the issuance of the Units, upon satisfaction of certain conditions, an additional 500 Units in the aggregate ("Additional Units") comprised of (i) $75,000 in aggregate principal amount of 7% senior convertible notes ("Note 4"), which is convertible into approximately 214,285 Common Shares at a conversion price of $0.35 per share subject to certain adjustments, and warrants to purchase up to 150,000 Common Shares at an exercise price of $0.50 per share subject to certain adjustments ("Warrant 4"), to be issued to Opportunity LP, (ii) $175,000 in aggregate principal amount of 7% senior convertible notes ("Note 5"), which is convertible into 500,000 Common Shares at a conversion price of $0.35 per share subject to certain adjustments, and warrants to purchase up to 87,500 Common Shares at an exercise price of $0.50 per share subject to certain adjustments ("Warrant 5"),
(9)	to be issued to Opportunity Ltd, and (iii) $250,000 in aggregate principal amount of 7% senior convertible notes ("Note 6"), which is convertible into approximately 714,285 Common Shares at a conversion price of $0.35 per share subject to certain adjustments, which conversion price is subject to certain adjustments, and warrants to purchase 500,000 Common Shares at an exercise price of $0.50 per share subject to certain adjustments ("Warrant 6"), to be issued to JV Partners. Each Unit consists of $1,000 in principal amount of 7% senior convertible notes and warrants to purchase up to 2,000 Common Shares, at a purchase price of $1,000 per Unit. The Notes permit the Company, at its sole option, to pay interest in cash or Common Shares. Note 4, Note 5, Note 6, Warrant 4, Warrant 5 and Warrant 6 each contain an issuance limitation prohibiting the Investors from exercising those securities to the extent that such exercise would result in beneficial ownership by the
(10)	Investors of more than 9.99% of the Common Shares then issued and outstanding, which prohibition cannot be removed by the holder before the 61st day after such holder's notice to the Company of its election to remove such prohibition.
(11)	These securities are immediately convertible or exercisable into Common Shares.
(12)	Subject to satisfaction of certain conditions, on each of September 2, 2008, October 1, 2008, November 3, 2008 and December 1, 2008 (each, a "Subsequent Closing Date"), the Investors shall be obligated to purchase the Additional Units comprised of Note 4, Note 5 and Note 6 in the aggregate principal amount of $500,000 and Warrant 4, Warrant 5 and Warrant 6 to purchase in aggregate up to 1,000,000 Common Shares (consisting of $125,000 in aggregate principal amount of such notes and warrants to purchase up to 250,000 Common Shares on each Subsequent Closing Date upon the satisfaction of the conditions precedent). The conditions precedent to the purchase of the Additional Units to be issued on each Subsequent Closing Date may be waived at the sole discretion of the Investors.
(13)	Matures on the 30 month anniversary from the date of issuance.
(14)	Expires 5 years from the date of issuance.

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