form8kdated33009.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): March 30, 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)
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£
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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£
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry
into a Material Definitive Agreement.
On March
30, 2009, Aeolus Pharmaceuticals, Inc. (the “Company”) entered into a Securities
Purchase Agreement (the "Purchase Agreement") with two accredited institutional
investors (the "Investors") pursuant to which the Company sold and
issued to the Investors in a private placement an aggregate of 5,357,143
units (the “Units”), comprised of an aggregate of 5,357,143 shares of common
stock (the “Common Stock”) of the Company (the “Shares”) and warrants to
purchase up to an aggregate of 13,392,857 additional shares of Common Stock (the
“Warrants”), with an initial exercise price of $0.35 per share, subject to
adjustment pursuant to the Warrants, with each Unit representing one share of
Common Stock and a Warrant to purchase two-and-one-half shares of Common Stock,
at a purchase price of $0.28 per Unit for aggregate gross proceeds of $1,500,000
(collectively, the “Financing”). The Warrants are exercisable for a
five 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
Stock without exercising the Warrant and 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; and contain standard anti-dilution provisions
that provide for the adjustment of the exercise price and the number of shares
of common stock that can be purchased in the event of a stock dividend or split,
dividend payment or other issuance, reorganization, recapitalization or similar
event. The Purchase Agreement and the form of Warrant are filed as
Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on Form 8-K
and incorporated herein by this reference.
In
connection with the Financing, the Company also entered into a Registration
Rights Agreement (the “Rights Agreement”) with the
Investors. Pursuant to the Rights Agreement, the Company agreed to
file one or more registration statements (collectively, the “Registration
Statements”) with the Securities and Exchange Commission (the “SEC”) covering
the resale of the Shares and all shares of common stock issuable upon exercise
of the Warrants (together with the Shares, the “Registrable Securities”) upon
demand of the holders of a majority of the Registrable Securities (a
“Demand Registration”). Such holders have the right to two (2) Demand
Registrations; provided, however, that the Company is not obligated to effect
more than one (1) Demand Registration within any period of 12 consecutive
months, subject to certain exceptions. In the event the holders
exercise their right to a Demand Registration, the Company has agreed to file a
Registration Statement to register the resale of the Registrable Securities
within a certain numbers of days after the request and to use commercially
reasonable efforts to cause the Registration Statement to be declared effective
by the SEC as soon as practicable after the filing thereof. The
Company also agreed to use its commercially reasonable efforts to keep the
Registration Statements effective for a specified period.
In
connection with filing the Registration Statements, if the SEC limits the amount
of Registrable Securities to be registered for resale pursuant to Rule 415 under
the Securities Act of 1933, as amended (the "Securities Act") or any successor
rule providing for offering securities on a continuous or delayed basis, then
the Company shall be entitled to exclude such disallowed Registrable Securities
from the Registration Statements as set forth in the Rights Agreement; however,
the Company may be required to file one or more additional Registration
Statements successively trying to register on each such additional Registration
Statement until all Registrable Securities have been registered for resale with
the SEC in accordance with the terms of the Rights
Agreement. Pursuant to the Rights Agreement, the Company also granted
the Investors certain piggyback registration rights. The Rights
Agreement is filed as Exhibit 4.1 to this Current Report on Form 8-K and
incorporated herein by this reference.
The net
proceeds to the Company from the Financing, after deducting for expenses, were
approximately $1.4 million. The Company intends to use the net proceeds from the
Financing to finance the development of AEOL 10150 and to fund ongoing
operations of the Company.
The
Company did not use any form of advertising or general solicitation in
connection with the Financing.
Concurrently
with the Financing, the Company and the Investors entered into Amendment No. 2
to the Securities Purchase Agreement dated August 1, 2008, as amended by
Amendment No. 1 thereto, dated August 4, 2008 ("Amendment No. 2"), pursuant
to which the parties agreed to extend the expiration date in which certain of
the Investors, at their sole option, may purchase up to an additional 4,000
senior convertible note units, in one or more closings, from February 1, 2011 to
December 31, 2013. Each senior convertible note unit is comprised of
senior unsecured convertible notes of the Company, in an aggregate principal
amount of $1,000, which shall bear interest at a rate of 7% per year and mature
on the 30-month anniversary of their date of issuance, and warrants to purchase
up to an aggregate of 2,000 shares of Common Stock, each with an initial
exercise price of $0.50 per share, subject to adjustment pursuant to the
warrants, and has a purchase price of $1,000. Amendment No. 2 is
filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein
by this reference.
Affiliates
of Xmark Opportunity Partners, LLC are the sole investors in the Financing.
Together with its affiliates, Xmark Opportunity Partners, LLC beneficially
owned approximately 58% of the Company's outstanding common stock prior to the
Financing. 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 of the Company, is President of
Goodnow.
Item
2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of the Registrant.
The
information set forth in Item 1.01 of this Form 8-K is incorporated into this
Item 2.03 by reference.
The
securities 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 agreements executed in connection with
the Financing contain representations to support the Company’s reasonable belief
that each Investor had access to information concerning the Company’s operations
and financial condition, each Investor acquired the securities 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 Investor 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 Financing
other than communications with the Investors; the Company obtained
representations from each Investor regarding its investment intent, experience
and sophistication; and each Investor 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 securities were deemed to be restricted securities
for purposes of the Securities Act, and the certificates representing the
securities 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 8.01 Other
Events.
On March
31, 2009, the Company issued a press release announcing the completion of the
Financing. The text of the press release is set forth in Exhibit 99.1 attached
to this Form 8-K and incorporated herein by this reference.
Item
9.01. Financial Statements and Exhibits.
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Exhibit
#
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Description
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4.1
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Registration
Rights Agreement dated March 30, 2009 by and among the Company and the
investors whose names appear on the signature pages
thereof
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10.1
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Securities
Purchase Agreement dated March 30, 2009 by and among the Company and the
investors whose names appear on the signature pages
thereof
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10.2
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Form
of Warrant to Purchase Common Stock
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10.3
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Amendment
No. 2 dated March 30, 2009 to the Securities Purchase Agreement dated
August 1, 2008, as amended by Amendment No. 1 thereto, dated August 4,
2008, by and among the Company and the investors whose names appear on the
signature pages thereof
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99.1
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Press
Release dated March 31, 2009
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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: March
31, 2009
/s/ Michael P.
McManus___________________
Michael
P. McManus
Chief
Financial Officer, Treasurer and Secretary