form8k-finamend.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): December 24, 2009
AEOLUS PHARMACEUTICALS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State or
other jurisdiction of incorporation)
0-50481 56-1953785
(Commission
File
Number) (IRS
Employer Identification No.)
26361
Crown Valley Parkway, Suite 150
Mission
Viejo, California 92691
(Address
of Principal Executive Offices, Including Zip Code)
949-481-9825
(Registrant’s
Telephone Number, Including Area Code)
__________________
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
£ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
£ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
£
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
|
£
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
1.01. Entry
into a Material Definitive Agreement.
On
December 24, 2009, Aeolus Pharmaceuticals, Inc. (the “Company”) entered into an
amendment (the “Amendment”) to the Securities Purchase and Exchange Agreement
dated October 6, 2009 (the “Agreement”) pursuant to which the Company
agreed to lower the conversion price of the Company’s Senior Convertible Notes
issued in 2008 (the “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 (the
“Financing”) an additional 714,286 shares of the Company’s Common Stock (the
“Shares”) upon conversion of the Notes (the “Issuance”). The
Amendment was executed to resolve a misunderstanding regarding one of the
Financing terms between the Company and the investors in the
Financing. The Company will not receive any proceeds from the
Issuance. The Company filed a Current Report on Form 8-K with the Securities and
Exchange Commission on October 6, 2009 to report the Financing (the “Prior Form
8-K”). The disclosure contained in Item 1.01 of the Prior Form 8-K, as amended
by this Item 1.01, is incorporated herein by this reference.
The
Amendment is filed as Exhibit 10.1 to this Current Report on Form 8-K and
incorporated herein by this reference. The Agreement was filed as Exhibit 10.1
to the Prior Form 8-K and is incorporated herein by this reference.
The
Shares described in this Item 1.01 above were offered and sold in reliance upon
exemptions from registration pursuant to Section 4(2) under the Securities Act,
and Rule 506 promulgated thereunder, and thus have not been registered under the
Securities Act. The securities may not be offered or sold in the United States
absent registration or an applicable exemption from the registration
requirements of the Securities Act.
Affiliates
of Xmark Opportunity Partners, LLC together with the Company, are the sole
participants in the Issuance. Together with its affiliates, Xmark Opportunity
Partners, LLC beneficially owned approximately 81% of the Company's
outstanding common stock prior to the Amendment. Xmark Opportunity
Partners, LLC is the sole manager of Goodnow Capital, L.L.C. and possesses sole
power to vote and direct the disposition of all securities of the Company held
by Goodnow. Goodnow has the right to designate up to two directors for election
to the Company's Board of Directors pursuant to the terms of a purchase
agreement between Goodnow and the Company. David C. Cavalier, a current director
and employee of the Company, is President of Goodnow.
Item
3.02. Unregistered Sales of Equity Securities.
The
Shares described in Item 1.01 above were offered and sold in reliance upon
exemptions from registration pursuant to Section 4(2) under the Securities Act,
and Rule 506 promulgated thereunder. The Amendment contains representations to
support the Company’s reasonable belief that each purchaser of the Shares had
access to information concerning the Company’s operations and financial
condition, each purchaser of the Shares acquired the Shares for its own account
and not with a view to the distribution thereof in the absence of an effective
registration statement or an applicable exemption from registration, and that
each purchaser of the Shares is sophisticated within the meaning of Section 4(2)
of the Securities Act and an "accredited investor" (as defined by Rule 501 under
the Securities Act). In addition, the issuances did not involve any public
offering; the Company made no solicitation in connection with the Issuance other
than communications with the purchasers; the Company obtained representations
from each purchaser regarding its investment intent, experience and
sophistication; and each purchaser either received or had access to adequate
information about the Company in order to make informed investment
decisions.
At the
time of their issuance, the Shares were deemed to be restricted securities for
purposes of the Securities Act, and the certificates representing the Shares
bear legends to that effect.
The
information set forth in Item 1.01 of this Form 8-K is incorporated into this
Item 3.02 by reference.
Item
9.01. Financial Statements and Exhibits.
|
Exhibit
#
|
|
Description
|
|
10.1
|
|
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
|
SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, the Registrant has duly caused this Report to
be signed on its behalf by the undersigned hereunto duly
authorized.
AEOLUS PHARMACEUTICALS,
INC.
Date: December
28, 2009
/s/ Michael P.
McManus___________________
Michael
P. McManus
Chief
Financial Officer, Treasurer and Secretary