UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 17)*
AEOLUS PHARMACEUTICALS, INC.
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(Name of Issuer)
Common stock, $.01 par value per share
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(Title of Class of Securities)
00765G109
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(CUSIP Number)
with copy to:
Xmark Opportunity Partners, LLC Lowenstein Sandler PC
90 Grove Street, Suite 201 1251 Avenue of the Americas, 18th Floor
Ridgefield, Connecticut 06877 New York, New York 10020
Attention: Ms. Mary L. King Attention: Peter D. Greene, Esq.
(203) 588-2808 (646) 414-6908
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 6, 2009
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(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
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Opportunity Partners, LLC
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2. Check the Appropriate Box if a Member of a Group (See Instructions):
(a) Not
(b) Applicable
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3. SEC Use Only
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4. Source of Funds (See Instructions): AF
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e): Not Applicable
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6. Citizenship or Place of Organization: State of Delaware
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Number of 7. Sole Voting Power: 36,620,453*
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Shares Beneficially 8. Shared Voting Power:
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Owned by
Each Reporting 9. Sole Dispositive Power: 35,620,453*
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Person With 10. Shared Dispositive Power:
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 36,620,453*
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions): [ x ]*
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13. Percent of Class Represented by Amount in Row (11): 67.4%*
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14. Type of Reporting Person (See Instructions): IA
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* 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 the sole
power to vote and the sole power to 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, as such, possesses the sole power to vote and the
sole power to direct the disposition of all securities of the Company held by JV
Partners. Mr. Mitchell D. Kaye and Mr. David C. Cavalier, the Co-Managing
Members of Xmark Capital Partners, LLC, a Delaware limited liability company,
the Managing Member of Opportunity Partners, share voting and dispositive power
with respect to all securities of the Company beneficially owned by Opportunity
Partners. Collectively, Opportunity LP and Opportunity Ltd 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 the
sole power to vote and the sole power to direct the disposition of all
securities of the Company held by Goodnow.
As of January 28, 2010 (the "Filing Date"), Opportunity LP (A) held (i)
7,957,264 shares of the Company's common stock, $.01 par value per share (the
"Common Shares"), which includes 1,276,435 Common Shares held by Goodnow, (ii)
warrants to purchase up to 13,768,928 Common Shares at an exercise price of $.28
per Common Share and (iii) a call option to acquire up to 1,767,857 units (the
"October 2009 Units") at a call option exercise price of $.28 per October 2009
Unit (each October 2009 Unit is comprised of one (1) Common Share and a warrant
to purchase two (2) Common Shares at a warrant exercise price of $.28 per Common
Share, upon issuance, each October 2009 Unit is immediately separable) (the "LP
Call Option") and (B) is subject to a put option that requires Opportunity LP to
purchase up to 1,767,857 October 2009 Units, less any October 2009 Units
purchased pursuant to the LP Call Option, at a purchase put price of $.28 per
October 2009 Unit. As of the Filing Date, Opportunity Ltd held (A) (i)
17,054,524 Common Shares, which includes 3,300,653 Common Shares held by
Goodnow, (ii) warrants to purchase up to 29,345,357 Common Shares at an exercise
price of $.28 per Common Share and (iii) a call option to acquire up to
4,125,000 October 2009 Units (the "Ltd Call Option") and (B) is subject to a put
option that requires Opportunity Ltd to purchase up to 4,125,000 October 2009
Units, less any October 2009 Units purchased pursuant to the Ltd Call Option, at
a put purchase price of $.28 per October 2009 Unit. As of the Filing Date, JV
Partners held (i) 1,023,731 Common Shares and (ii) warrants to purchase up to
500,000 Common Shares at an exercise price of $.28 per Common Share. The
warrants described in this paragraph, including the warrants that could be
acquired as a result of purchasing the October 2009 Units, each contain an
issuance limitation prohibiting the holder from exercising such warrants to the
extent that, after giving effect to such exercise of the warrants, the holder
would beneficially own more than 9.99% of the Common Shares then issued and
outstanding, which prohibition cannot be modified by the holder before the
sixty-first (61st) day after such holder's notice to the Company of its election
to modify such prohibition. The warrants are exercisable for a seven (7) year
period from their date of issuance, contain a "cashless exercise" feature that
allows the holder to exercise the 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 Shares without
exercising the warrant and contain a provision that provides for the reduction
of the exercise price to $.01 per Common Share in the event of any such payment
of cash dividends by the Company or a change of control; and contain standard
antidilution provisions that provide for the adjustment of the exercise price
and the number of Common Shares that can be purchased in the event of a stock
dividend or split, dividend payment or other issuance, reorganization,
recapitalization or similar event.
As of the Filing Date, Goodnow held 3,529,951 Common Shares in addition to the
(i) 1,276,435 Common Shares held by Goodnow but attributed to Opportunity LP and
(ii) 3,300,653 Common Shares held by Goodnow but attributed to Opportunity Ltd.
As of the Filing Date, Opportunity Partners had the right to vote 1,000,000
Common Shares pursuant to a Voting Trust Agreement, dated as of April 19, 2004,
as amended, by and among Opportunity Partners and the holders of such Common
Shares. As of the Filing Date, Mr. Cavalier held options to purchase 172,750
Common Shares and 162,126 of such options are currently exercisable or
exercisable within sixty (60) days after the Filing Date.
Based upon information received from the Company on January 27, 2010, there were
48,264,320 Common Shares issued and outstanding as of January 25, 2010. As a
result of the foregoing, for purposes of Reg. Section 240.13d-3, Opportunity
Partners is deemed to beneficially own 36,620,453 Common Shares or 67.4% of the
Common Shares deemed issued and outstanding as of the Filing Date.
Nothing set forth herein shall be construed as an admission by Opportunity
Partners, or any other person or entity, that Opportunity Partners, or any other
person or entity, is the beneficial owner of any of the Company's securities
that are beneficially owned by any other person or entity for the purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any
other purposes.
Item 1. Security and Issuer.
-------------------
Item 1 of this Schedule 13D is hereby amended by deleting such item in
its entirety and replacing the following in lieu thereof:
The class of equity security to which this Schedule 13D relates is the
Common stock, $.01 par value per share (the "Common Shares") of Aeolus
Pharmaceuticals, Inc., a Delaware corporation (the "Company"). The address of
the Company's principal executive offices is 26361 Crown Valley Parkway, Suite
150, Mission Viejo, California 92691.
Item 3. Source and Amount of Funds or Other Consideration.
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Item 3 of this Schedule 13D is hereby amended by adding the following
at the end thereof:
The amount of funds required (including commissions) by Opportunity LP
and Opportunity Ltd to undertake the open market purchases of Common Shares, as
more fully set forth in Item 5 of this Schedule 13D, Amendment No. 17 (this
"Amendment 17"), was $10,324 and $24,090 respectively. All funds used to
purchase the Common Shares in open market purchases came directly from the
general funds of Opportunity LP and Opportunity Ltd, as applicable.
Mr. Cavalier, as of the filing of this Amendment 17, holds options
(the "Company Options") to purchase 172,750 Common Shares. In the period
commencing sixty (60) days prior to October 6, 2009, the date of the event which
required the filing of this Amendment 17, and ending sixty (60) days after the
filing of this Amendment 17, 19,312 of the Company Options became, or will
become, exercisable. Accordingly, during such period, the beneficial ownership
of the Common Shares, as reported herein, has increased by 19,312 Common Shares.
As of the date of the filing of this Amendment 17, Mr. Cavalier holds, in the
aggregate, 162,126 Company Options which are either currently exercisable by him
or will be exercisable by him within sixty (60) days of the date of the filing
of this Amendment 17.
Pursuant to certain Senior Convertible Notes (the "Senior Notes")
issued by the Company to Opportunity LP and Opportunity Ltd pursuant to that
certain Securities Purchase Agreement, dated as of August 31, 2008, by and among
the Company and the Funds, the Company paid interest on the Senior Notes by
issuing to Opportunity LP and Opportunity Ltd (i) 28,661 and 66,876 Common
Shares respectively on or about July 31, 2009 and (ii) 11,098 and 25,895 Common
Shares respectively on or about October 6, 2009.
The amount of funds required by Opportunity LP and Opportunity Ltd to
undertake the purchase of the Financing Units (as defined in Item 5 of this
Schedule 13D), as more fully set forth in Item 5 of this Amendment 17, was
$495,000 and $1,155,000 respectively. All funds used to purchase the Financing
Units came directly from the general funds of Opportunity LP and Opportunity
Ltd, as applicable.
As more fully set forth in Item 5 of this Amendment 17, on October 6,
2009, the Company and the Funds entered into a series of transactions and
noncash exchanges of various securities, instruments and other contractual
rights held by the Funds, and issued and/or granted by the Company. See Item 5
of this Schedule 13D, as amended, for additional information.
Item 4. Purpose of Transaction.
----------------------
Item 4 of this Schedule 13D is hereby amended by deleting such item in
its entirety and replacing the following in lieu thereof:
The acquisition of the securities referred to herein is for the
purpose of having the ability to direct the strategic course of the Company.
Opportunity Partners has no present intention to direct the day-to-day
management and affairs of the Company. However, through its ability to elect a
majority of the Board of Directors of the Company by virtue of its beneficial
ownership of the Common Shares, Opportunity Partners has the ability, but not
the present intention, to direct the day-to-day management and affairs of the
Company. Mr. Cavalier is currently the Chairman of the Board of Directors of the
Company. Other than as described in this Item 4, Opportunity Partners does not
have any present plans or intentions which relate to, or would result in, any of
the transactions required to be described in Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 of this Schedule 13D is hereby amended by deleting such item in
its entirety and replacing the following in lieu thereof:
As of January 28, 2010 (the "Filing Date"), Opportunity LP (A) held
(i) 7,957,264 shares of the Company's common stock, $.01 par value per share
(the "Common Shares"), which includes 1,276,435 Common Shares held by Goodnow,
(ii) warrants to purchase up to 13,768,928 Common Shares at an exercise price of
$.28 per Common Share and (iii) a call option to acquire up to 1,767,857 units
(the "October 2009 Units") at a call option exercise price of $.28 per October
2009 Unit (each October 2009 Unit is comprised of one (1) Common Share and a
warrant to purchase two (2) Common Shares at a warrant exercise price of $.28
per Common Share, upon issuance, each October 2009 Unit is immediately
separable) (the "LP Call Option") and (B) is subject to a put option that
requires Opportunity LP to purchase up to 1,767,857 October 2009 Units, less any
October 2009 Units purchased pursuant to the LP Call Option, at a purchase put
price of $.28 per October 2009 Unit (the "LP Put Options"). As of the Filing
Date, Opportunity Ltd held (A) (i) 17,054,524 Common Shares, which includes
3,300,653 Common Shares held by Goodnow, (ii) warrants to purchase up to
29,345,357 Common Shares at an exercise price of $.28 per Common Share and (iii)
a call option to acquire up to 4,125,000 October 2009 Units (the "Ltd Call
Option") and (B) is subject to a put option that requires Opportunity Ltd to
purchase up to 4,125,000 October 2009 Units, less any October 2009 Units
purchased pursuant to the Ltd Call Option, at a put purchase price of $.28 per
October 2009 Unit (together with the LP Put Options, the "October Put Options").
As of the Filing Date, JV Partners held (i) 1,023,731 Common Shares and (ii)
warrants to purchase up to 500,000 Common Shares at an exercise price of $.28
per Common Share. The warrants described in this paragraph, including the
warrants that could be acquired as a result of purchasing the October 2009
Units, each contain an issuance limitation prohibiting the holder from
exercising such warrants to the extent that, after giving effect to such
exercise of the warrants, the holder would beneficially own more than 9.99% of
the Common Shares then issued and outstanding, which prohibition cannot be
modified by the holder before the sixty-first (61st) day after such holder's
notice to the Company of its election to modify such prohibition. The warrants
are exercisable for a seven (7) year period from their date of issuance, contain
a "cashless exercise" feature that allows the holder to exercise the 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 Shares without exercising the warrant and contain a
provision that provides for the reduction of the exercise price to $.01 per
Common Share in the event of any such payment of cash dividends by the Company
or a change of control; and contain standard antidilution provisions that
provide for the adjustment of the exercise price and the number of Common Shares
that can be purchased in the event of a stock dividend or split, dividend
payment or other issuance, reorganization, recapitalization or similar event.
As of the Filing Date, Goodnow held 3,529,951 Common Shares in
addition to the (i) 1,276,435 Common Shares held by Goodnow but attributed to
Opportunity LP and (ii) 3,300,653 Common Shares held by Goodnow but attributed
to Opportunity Ltd. As of the Filing Date, Opportunity Partners had the right to
vote 1,000,000 Common Shares pursuant to a Voting Trust Agreement, dated as of
April 19, 2004, as amended, by and among Opportunity Partners and the holders of
such Common Shares. As of the Filing Date, Mr. Cavalier held options to purchase
172,750 Common Shares and 162,126 of such options are currently exercisable or
exercisable within sixty (60) days after the Filing Date.
Based upon information received from the Company on January 27, 2010,
there were 48,264,320 Common Shares issued and outstanding as of January 25,
2010. As a result of the foregoing, for purposes of Reg. Section 240.13d-3,
Opportunity Partners is deemed to beneficially own 36,620,453 Common Shares or
67.4% of the Common Shares deemed issued and outstanding as of the Filing Date.
Nothing set forth herein shall be construed as an admission by
Opportunity Partners, or any other person or entity, that Opportunity Partners,
or any other person or entity, is the beneficial owner of any of the Company's
securities that are beneficially owned by any other person or entity for the
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or
for any other purposes.
The following table sets forth open market purchases of Common Shares
by Opportunity Partners on behalf of the applicable Funds (each of which were
effected in ordinary brokerage transactions) occurring during the period
commencing sixty (60) days prior to the date of the event which required the
filing of this Amendment 17 and ending on the Filing Date:
Quantity of Price Per Common Share
Trade Date Common Shares Purchaser including commissions
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12/17/2009 6,000 Opportunity LP $.3538
12/17/2009 14,000 Opportunity Ltd $.3538
12/18/2009 3,000 Opportunity LP $.3825
12/18/2009 7,000 Opportunity Ltd $.3825
12/21/2009 3,000 Opportunity LP $.4338
12/21/2009 7,000 Opportunity Ltd $.4338
12/22/2009 3,000 Opportunity LP $.4150
12/22/2009 7,000 Opportunity Ltd $.4150
12/23/2009 3,000 Opportunity LP $.4300
12/23/2009 7,000 Opportunity Ltd $.4300
12/24/2009 3,000 Opportunity LP $.4775
12/24/2009 7,000 Opportunity Ltd $.4775
12/28/2009 3,000 Opportunity LP $.4750
12/28/2009 7,000 Opportunity Ltd $.4750
12/29/2009 750 Opportunity LP $.4800
12/29/2009 1,750 Opportunity Ltd $.4800
Mr. Cavalier, as of the Filing Date, holds Company Options to purchase
172,750 Common Shares. In the period commencing sixty (60) days prior to October
6, 2009, the date of the event which required the filing of this Amendment 17,
and ending sixty (60) days after the Filing Date, 19,312 of the Company Options
became, or will become, exercisable. Accordingly, during such period, the
beneficial ownership of the Common Shares, as reported herein, has increased by
19,312 Common Shares. As of the Filing Date, Mr. Cavalier holds, in the
aggregate, 162,126 Company Options which are either currently exercisable by him
or will be exercisable by him within sixty (60) days of the Filing Date.
Pursuant to the terms and provisions of that certain Senior Notes, the
Company paid interest on the Senior Notes by issuing to Opportunity LP and
Opportunity Ltd (i) 28,661 and 66,876 Common Shares respectively on or about
July 31, 2009 and (ii) 11,098 and 25,895 Common Shares respectively on or about
October 6, 2009.
On October 6, 2009, the Company entered into a Securities Purchase and
Exchange Agreement (the "October 2009 Purchase Agreement") with the Funds
pursuant to which the parties agreed as follows:
(1) The Company sold and issued to (i) Opportunity LP, 1,767,867 units
(the "Financing Units") for a purchase price of $495,000 and (ii) Opportunity
Ltd, 4,125,000 Financing Units for a purchase price of $1,155,000. Each
Financing Unit is comprised of one (1) Common Share (the "October 2009 Shares")
and a warrant to purchase two (2) Common Shares (the "October 2009 Warrants")
with an initial exercise price of $.28 per Common Share, subject to adjustment.
The October 2009 Warrants are exercisable for a seven (7) year period from their
date of issuance; contain a "cashless exercise" feature that allows the holder
to exercise the October 2009 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 Shares without
exercising the October 2009 Warrants and contain a provision that provides for
the reduction of the exercise price to $.01 per Common Share in the event of any
such payment of cash dividends by the Company or upon a change of control and
contain antidilution provisions in the event of a stock dividend or split,
dividend payment or other issuance, reorganization, recapitalization or similar
event.
(2) The Company granted to (i) Opportunity LP, the LP Call Option and
(ii) Opportunity Ltd, the Ltd Call Option. The LP Call Option and the Ltd Call
Option are exercisable at any time, and from time to time, on or prior to June
30, 2010.
(3) Opportunity LP and Opportunity Ltd, as applicable, granted to the
Company, the October Put Options. The October Put Options are exercisable by the
Company, at any time, and from time to time, from June 30, 2010 to July 30,
2010. However, each of Opportunity LP and Opportunity Ltd has the right to
terminate the October Put Options if they reasonably determine that a material
adverse event, condition or circumstance has occurred with respect to the
prospects of the Company's AEOL 10150 drug candidate for acute radiation
syndrome; provided that the Company's failure to receive a grant or financing
shall not, by itself, constitute a material adverse event, condition or
circumstance with respect thereto.
(4) Opportunity LP and Opportunity Ltd converted $300,000 and $700,000
respectively of the Company's Senior Notes held by them into Common Shares at a
conversion rate of $.35 per Common Share. Accordingly, on October 6, 2009,
Opportunity LP received 857,143 Common Shares and Opportunity Ltd received
2,000,000 Common Shares in exchange for their respective Senior Notes. On
December 24, 2009, the Company and the Funds entered into that certain Amendment
Agreement to the Securities Purchase and Exchange Agreement (the "Amendment
Agreement"), the purpose of which was to rectify a misunderstanding between the
parties thereto. As more fully set forth in the Amendment Agreement, the Senior
Notes should have been converted at a conversion rate of $.28 per Common Share
instead of a conversion rate of $.35 per Common Share. Accordingly, and pursuant
to the terms and provisions of the Amendment Agreement, on December 24, 2009,
Opportunity LP was issued 214,286 Common Shares and Opportunity Ltd was issued
500,000 Common Shares.
(5) Opportunity LP and Opportunity Ltd converted an option,
respectively held by them pursuant to that certain Securities Purchase
Agreement, dated as of August 1, 2008, by and among the parties thereto (the
"August 2008 Agreement"), which permitted each of Opportunity LP and Opportunity
Ltd to acquire an additional (i) $1,200,000 and $2,800,000 face amount
respectively of Senior Notes and (ii) 2,400,000 and 5,600,000 warrants for
Common Shares at a warrant exercise price of $.35 per Common Share (subject to
adjustment), into warrants with substantially the same terms as the October 2009
Warrants, including an exercise price of $.28 per Common Share (subject to
adjustment) (the "Note Conversion Warrants"). Accordingly, on October 6, 2009,
Opportunity LP and Opportunity Ltd were respectively issued 4,285,714 and
10,000,000 Note Conversion Warrants.
(6) The Funds held warrants issued pursuant to that certain Purchase
Agreement, dated as of November 21, 2005, by and among the parties thereto,
which such warrants permitted each of Opportunity LP, Opportunity Ltd and JV
Partners to respectively acquire 660,000, 990,000 and 500,000 Common Shares at a
warrant exercise price of $.28 per Common Share (subject to adjustment) (the
"2005 Warrants"). In addition, Opportunity LP and Opportunity Ltd held warrants
issued pursuant to (i) the August 2008 Agreement, which such warrants permitted
each of Opportunity LP and Opportunity Ltd to respectively acquire 600,000 and
1,400,000 Common Shares at a warrant exercise price of $.50 per Common Share
(subject to adjustment) (the "Note Warrants") and (ii) that certain March 30,
2009 Securities Purchase Agreement by and among the parties thereto, which such
warrants permitted each of Opportunity LP and Opportunity Ltd to respectively
acquire 4,687,500 and 8,705,357 Common Shares at a warrant exercise price of
$.35 per Common Share (subject to adjustment) (the "March 2009 Warrants"). Each
of Opportunity LP, Opportunity Ltd and JV Partners agreed to convert their
respective 2005 Warrants, Note Warrants and March 2009 Warrants into warrants
with substantially the same terms as the October 2009 Warrants, including an
exercise price of $.28 per Common Share (subject to adjustment) (the "Exchange
Warrants"). Accordingly, on October 6, 2009, Opportunity LP, Opportunity Ltd and
JV Partners were respectively issued 5,947,500, 11,095,357 and 500,000 Exchange
Warrants in exchange for their respective interests in their 2005 Warrants, Note
Warrants and March 2009 Warrants.
(7) The Funds were parties to two (2) registration rights agreements,
one dated November 21, 2005 and the other dated March 30, 2009, pursuant to
which, among other things, the Company agreed to register for resale, on behalf
of the Funds, as applicable, Common Shares issuable upon the exchange of the
2005 Warrants and the March 2009 Warrants (the "Old Registration Agreements").
The parties agreed to terminate the Old Registration Agreements and enter into a
new registration rights agreement pursuant to which the Company agrees to
register for resale, on behalf of the Funds, as applicable, the (i) October 2009
Shares and (ii) Common Shares issuable upon the exercise of the October 2009
Warrants, the Note Conversion Warrants and the Exchange Warrants.
In the period commencing sixty (60) days prior to October 6, 2009, the
date of the event which required the filing of this Amendment 17, and ending on
the Filing Date, except as set forth in this Item 5, there were no other
transactions in Common Shares or securities convertible into, exercisable for,
or exchangeable for, Common Shares, by Opportunity Partners, or any other person
or entity controlled by Opportunity Partners, or person or entity for which
Opportunity Partners possesses voting or dispositive control.
Nothing set forth herein shall be construed as an admission by
Opportunity Partners, or any other person or entity, that Opportunity Partners,
or any other person or entity, is the beneficial owner of any of the Company's
securities that are beneficially owned by any other person or entity for the
purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or
for any other purposes.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
-----------------------------------
Item 6 is hereby amended by adding the following at the end thereof:
As more fully set forth in Item 5 of this Schedule 13D, on October 6,
2009, the Company and the Funds entered into the October 2009 Purchase Agreement
as amended by the Amendment Agreement. The description of the October 2009
Purchase Agreement and the Amendment Agreement set forth in Item 5 of this
Schedule 13D and this Item 6 are subject to, and qualified in their entirety by,
the full text of the October 2009 Purchase Agreement and the Amendment
Agreement, a copy of which are incorporated by reference to this Amendment 17 as
an exhibit pursuant to Item 7 hereof.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Item 7 is hereby amended by adding the following at the end thereof:
1. Registration Rights Agreement, dated as of October 6, 2009,
by and among the Company and the Funds, incorporated by
reference to Exhibit 4.1 to the Current Report on Form 8-K,
dated October 6, 2009, filed by the Company with the
Securities and Exchange Commission on October 6, 2009.
2. Securities Purchase and Exchange Agreement, dated as of
October 6, 2009, by and among the Company and the Funds,
incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8-K, dated October 6, 2009, filed by the
Company with the Securities and Exchange Commission on
October 6, 2009.
3. Form of Warrant, incorporated by reference to Exhibit 10.2
to the Current Report on Form 8-K, dated October 6, 2009,
filed by the Company with the Securities and Exchange
Commission on October 6, 2009.
4. Amendment Agreement to the Securities Purchase and Exchange
Agreement, dated as of December 24, 2009, by and among the
Company and the Funds, incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K, dated December 24,
2009, filed by the Company with the Securities and Exchange
Commission on December 28, 2009.
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.
January 28, 2010
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).