UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 15)*
AEOLUS PHARMACEUTICALS, INC.
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
00765G109
--------------------------------------------------------------------------------
(CUSIP Number)
Mary L. King
Xmark Opportunity Partners, LLC
90 Grove Street, Suite 201
Ridgefield, CT 06877
(203) 588-2808
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 24, 2009
--------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Cusip No. 00765G109
--------------------------------------------------------------------------------
1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Opportunity Partners, LLC
20-2052197
--------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See Instructions):
(a) Not
(b) Applicable
--------------------------------------------------------------------------------
3. SEC Use Only
--------------------------------------------------------------------------------
4. Source of Funds (See Instructions): AF, WC
--------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e): Not Applicable
--------------------------------------------------------------------------------
6. Citizenship or Place of Organization: United States
--------------------------------------------------------------------------------
Number of 7. Sole Voting Power: 17,639,011*
-------------------------------------------
Shares Beneficially 8. Shared Voting Power:
-------------------------------------------
Owned by
Each Reporting 9. Sole Dispositive Power: 16,639,011*
------------------------------------------
Person With 10. Shared Dispositive Power:
------------------------------------------
--------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 17,639,011*
--------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions): [ x ]*
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11): 51.6%*
--------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions): IA
--------------------------------------------------------------------------------
* Xmark Opportunity Partners, LLC ("Opportunity Partners") is the sole member of
the investment manager of Xmark Opportunity Fund, L.P., a Delaware limited
partnership ("Opportunity LP"), and Xmark Opportunity Fund, Ltd., a Cayman
Islands exempted company ("Opportunity Ltd"), and, as such, possesses sole power
to vote and direct the disposition of all securities of Aeolus Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), held by Opportunity LP and
Opportunity Ltd. Opportunity Partners is the investment manager of Xmark JV
Investment Partners, LLC, a Delaware limited liability company ("JV Partners",
and together with Opportunity LP and Opportunity Ltd, the "Funds"), and, as
such, possesses sole power to vote and direct the disposition of all securities
of the Company held by JV Partners. Mitchell D. Kaye and David C. Cavalier, the
Co-Managing Members 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. Opportunity LP and
Opportunity Ltd, together, hold a majority of the membership interests in
Goodnow Capital, L.L.C., a Delaware limited liability company ("Goodnow"), and,
as such, Opportunity Partners possesses sole power to vote and direct the
disposition of all securities of the Company held by Goodnow.
As of February 24, 2009, Opportunity LP held (i) 3,166,469 common shares, $0.01
par value per share (the "Common Shares"), of the Company, which includes
1,276,435 Common Shares of the Company owned by Goodnow, (ii) warrants to
purchase up to 660,000 Common Shares of the Company at an exercise price of
$0.35 per share subject to certain adjustments, (iii) 7% senior convertible
notes (collectively, "Note 1"), in the aggregate principal amount of $300,000,
which are convertible into 857,141 Common Shares of the Company at a conversion
price of $0.35 per share subject to certain adjustments, and (iv) warrants
("Warrant 1") to purchase up to 600,000 Common Shares of the Company at an
exercise price of $0.50 per share subject to certain adjustments. As of February
24, 2009, Opportunity Ltd held (a) 6,768,860 Common Shares of the Company, which
includes 3,300,653 Common Shares of the Company owned by Goodnow, (b) warrants
to purchase up to 990,000 Common Shares of the Company at an exercise price of
$0.35 per share subject to certain adjustments, (c) 7% senior convertible notes
(together with Note 1, the "Notes"), in the aggregate principal amount of
$700,000, which are convertible into 1,999,998 Common Shares of the Company at a
conversion price of $0.35 per share subject to certain adjustments, and (d)
warrants (together with Warrant 1, the "Warrants") to purchase up to 1,400,000
Common Shares of the Company at an exercise price of $0.50 per share subject to
certain adjustments. As of February 24, 2009, JV Partners held (1) 1,023,731
Common Shares of the Company and (2) warrants to purchase up to 500,000 Common
Shares of the Company at an exercise price of $0.35 per share subject to certain
adjustments.
All of the Notes and the Warrants contain an issuance limitation prohibiting the
holder from converting or exercising, as the case may be, those securities to
the extent that after giving effect to such conversion or exercise, the holder
would beneficially own more than 9.99% of the Common Shares of the Company then
issued and outstanding, which prohibition cannot be modified by the holder
before the 61st day after such holder's notice to the Company of its election to
modify such prohibition.
As of February 24, 2009, Goodnow held 3,529,951 Common Shares of the Company in
addition to the Common Shares of the Company held by Goodnow referenced above.
As of February 24, 2009, Opportunity Partners had the right to vote 1,000,000
Common Shares of the Company pursuant to a voting trust agreement between
Opportunity Partners and the holders of record of those shares. As of February
24, 2009, Mr. Cavalier held options to purchase 109,875 Common Shares of the
Company.
Based upon information set forth in the Company's Quarterly Report on Form 10-Q
for the quarterly period ended December 31, 2008, as filed with the Securities
and Exchange Commission on February 6, 2009, there were 32,030,874 Common Shares
of the Company deemed issued and outstanding as of February 24, 2009. As a
result of the foregoing, for purposes of Reg. Section 240.13d-3, Opportunity
Partners is deemed to beneficially own 17,639,011 Common Shares of the Company,
or 51.6% of the Common Shares of the Company deemed issued and outstanding as of
February 24, 2009.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
This Item 3 is hereby amended by adding the following at the end
thereof:
All funds used to purchase the securities of the Company held by the
Funds described in this Schedule 13D, as amended, have come directly from the
assets of the Funds. See Item 5, as amended, for further information.
Item 5. Interest in Securities of the Issuer.
------------------------------------
This Item 5 is hereby amended and restated to read in its entirety as
follows:
Based upon information set forth in the Company's Quarterly Report on
Form 10-Q for the quarterly period ended December 31, 2008, as filed with the
Securities and Exchange Commission on February 6, 2009, there were 32,030,874
Common Shares of the Company deemed issued and outstanding as of February 24,
2009.
As of February 24, 2009, Opportunity LP held (i) 3,166,469 Common
Shares of the Company, which includes 1,276,435 Common Shares of the Company
owned by Goodnow, (ii) warrants to purchase up to 660,000 Common Shares of the
Company at an exercise price of $0.35 per share subject to certain adjustments,
(iii) 7% senior convertible notes (collectively, "Note 1"), in the aggregate
principal amount of $300,000, which are convertible into 857,141 Common Shares
of the Company at a conversion price of $0.35 per share subject to certain
adjustments, and (iv) warrants ("Warrant 1") to purchase up to 600,000 Common
Shares of the Company at an exercise price of $0.50 per share subject to certain
adjustments. As of February 24, 2009, Opportunity Ltd held (a) 6,768,860 Common
Shares of the Company, which includes 3,300,653 Common Shares of the Company
owned by Goodnow, (b) warrants to purchase up to 990,000 Common Shares of the
Company at an exercise price of $0.35 per share subject to certain adjustments,
(c) 7% senior convertible notes (together with Note 1, the "Notes"), in the
aggregate principal amount of $700,000, which are convertible into 1,999,998
Common Shares of the Company at a conversion price of $0.35 per share subject to
certain adjustments, and (d) warrants (together with Warrant 1, the "Warrants")
to purchase up to 1,400,000 Common Shares of the Company at an exercise price of
$0.50 per share subject to certain adjustments. As of February 24, 2009, JV
Partners held (1) 1,023,731 Common Shares of the Company and (2) warrants to
purchase up to 500,000 Common Shares of the Company at an exercise price of
$0.35 per share subject to certain adjustments.
All of the Notes and the Warrants contain an issuance limitation
prohibiting the holder from converting or exercising, as the case may be, those
securities to the extent that after giving effect to such conversion or
exercise, the holder would beneficially own more than 9.99% of the Common Shares
of the Company then issued and outstanding, which prohibition cannot be modified
by the holder before the 61st day after such holder's notice to the Company of
its election to modify such prohibition.
As of February 24, 2009, Goodnow held 3,529,951 Common Shares of the
Company in addition to the Common Shares of the Company held by Goodnow
referenced above. As of February 24, 2009, Opportunity Partners had the right to
vote 1,000,000 Common Shares of the Company pursuant to a voting trust agreement
between Opportunity Partners and the holders of record of those shares. As of
February 24, 2009, Mr. Cavalier held options to purchase 109,875 Common Shares
of the Company.
Opportunity Partners is the sole member of the investment manager of
Opportunity LP and Opportunity Ltd and, as such, possesses sole power to vote
and direct the disposition of all securities of the Company held by Opportunity
LP and Opportunity Ltd. Opportunity Partners is 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 JV Partners. Mitchell D. Kaye and David
C. Cavalier, the Co-Managing Members 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.
Opportunity LP and Opportunity Ltd, together, hold a majority of the membership
interests in Goodnow and, as such, Opportunity Partners possesses sole power to
vote and direct the disposition of all securities of the Company held by
Goodnow.
As a result of the foregoing, for purposes of Reg. Section 240.13d-3,
Opportunity Partners is deemed to beneficially own 17,639,011 Common Shares of
the Company, or 51.6% of the Common Shares of the Company deemed issued and
outstanding as of February 24, 2009.
The following table details all of the transactions in Common Shares
of the Company, or securities convertible into, exercisable for or exchangeable
for Common Shares of the Company, by the persons referenced in Item 2 (each of
which was effected by the Funds in an ordinary brokerage transaction), during
the sixty (60) day period occurring on or prior to February 24, 2009:
Date Type of Transaction Number of Shares Security Type Price per Share ($)
------------------------ ---------------------- --------------------- ---------------------- ---------------------
12/26/2008 Purchase 7,950 Common Shares $0.3069
12/29/2008 Purchase 5,000 Common Shares $0.3900
12/30/2008 Purchase 10,000 Common Shares $0.3200
12/31/2008 Purchase 5,000 Common Shares $0.3500
01/31/2009 PIK Interest(1) 79,838 Common Shares $0.3480
02/10/2009 Purchase 40,000 Common Shares $0.4338
02/11/2009 Purchase 20,000 Common Shares $0.4500
02/24/2009 Purchase 20,000 Common Shares $0.4175
Except for the transactions listed above, there were no transactions in Common
Shares, or securities convertible into, exercisable for or exchangeable for
Common Shares by the persons referenced in Item 2 during the sixty (60) day
period on or prior to February 24, 2009.
----------------------------------
(1) On January 31, 2009, the Company exercised its option to pay interest due
under the Notes in Common Shares of the Company and accordingly issued 79,838
Common Shares at $0.348 per share to Opportunity LP and Opportunity Ltd in the
aggregate.
Signature
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
April 29, 2009 XMARK OPPORTUNITY PARTNERS, LLC
By: XMARK CAPITAL PARTNERS, LLC
its Managing Member
By: /s/ Mitchell D. Kaye
-------------------------------------
Name: Mitchell D. Kaye
Title: Co-Managing Member
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001).