UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 9)*
AEOLUS PHARMACEUTICALS, INC.
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
45325S-10-1
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(CUSIP Number)
Mary L. King
Xmark Opportunity Partners, LLC
90 Grove Street, Suite 201
Ridgefield, CT 06877
(646) 688-5728
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 18, 2007
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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. 45325S-10-1
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1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Xmark Opportunity Partners, LLC
20-2052197
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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, WC
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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: United States
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Number of 7. Sole Voting Power: 14,344,435*
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Shares Beneficially 8. Shared Voting Power: *
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Owned by
Each Reporting 9. Sole Dispositive Power: 13,344,435*
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Person With 10. Shared Dispositive Power: *
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 14,344,435*
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions): Not Applicable
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13. Percent of Class Represented by Amount in Row (11): 45.6%*
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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 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, as such, possesses sole power to vote and direct the disposition of all
securities of the Company held by JV Partners. Opportunity Partners is the sole
manager of Goodnow Capital, L.L.C., a Delaware limited liability company
("Goodnow"), and, as such, possesses sole power to vote and direct the
disposition of all securities of the Company held by Goodnow. 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.
As of April 18, 2007, Opportunity LP held 2,783,286 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, and warrants to purchase up to
660,000 Common Shares of the Company at an exercise price of $0.50 per share. As
of April 18, 2007, Opportunity Ltd held 5,437,537 Common Shares of the Company,
which includes 3,300,653 Common Shares of the Company owned by Goodnow, and
warrants to purchase up to 990,000 Common Shares of the Company at an exercise
price of $0.50 per share. As of April 18, 2007, 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. All of the
warrants held by Opportunity LP, Opportunity Ltd and JV Partners are exercisable
within 60 days of the date of event which required the filing of this Amendment
No. 9 to Schedule 13D. As of April 18, 2007, Goodnow held 3,529,951 Common
Shares of the Company in addition to the Common Shares of the Company referenced
above. As of April 18, 2007, 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 the shares. As of
April 18, 2007, David C. Cavalier held 70,000 Common Shares of the Company
issuable upon the exercise of options held by Mr. Cavalier.
Based upon information set forth in the Company's most recent Quarterly Report
on Form 10-Q, as filed with the Securities and Exchange Commission on February
9, 2007, there were 29,286,082 Common Shares of the Company issued and
outstanding as of February 7, 2007. As a result of the foregoing, for purposes
of Reg. Section 240.13d-3, Opportunity Partners is deemed to beneficially own
14,344,435 Common Shares of the Company, or 45.6% of the Common Shares of the
Company deemed issued and outstanding as of April 18, 2007.
Item 1. Security and Issuer.
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This Item 1 is hereby amended and restated to read in its entirety as
follows:
"The class of equity securities to which this Schedule 13D relates is
the common stock, par value $0.01 per share (the "Common Shares"), of Aeolus
Pharmaceuticals, Inc., a Delaware corporation (the "Company"). The address of
the principal executive offices of the Company is 23811 Inverness Place, Laguna
Niguel, California 92677."
Item 2. Identity and Background.
------------------------
This Item 2 is hereby amended and restated to read in its entirety as
follows:
"The person filing this statement is Xmark Opportunity Partners, LLC,
a Delaware limited liability company ("Opportunity Partners"), whose principal
address is 90 Grove Street, Suite 201, Ridgefield, Connecticut 06877.
Opportunity Partners has previously filed Schedule 13D and amendments thereto
jointly with Xmark Asset Management, LLC, a New York limited liability company
("Xmark Asset Management"). However, Xmark Asset Management has ceased to do
business, making Opportunity Partners the sole filing person. 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 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. The
Funds are engaged in the investment in property of all kinds, including, without
limitation, capital stock, depository receipts, investment companies,
subscriptions, warrants, bonds, notes, debentures, options and other securities
of whatever kind and nature. Opportunity Partners is the sole manager of Goodnow
Capital, L.L.C., a Delaware limited liability company ("Goodnow"), and, as such,
possesses sole power to vote and direct the disposition of all securities of the
Company held by Goodnow.
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. Mr.
Cavalier is the Chairman of the Board of Directors of the Company.
None of Opportunity Partners, the Funds, or Messrs. Kaye or Cavalier
ever has been convicted in any criminal proceeding (excluding traffic violations
or similar misdemeanors), and none ever has been a party to any civil proceeding
commenced before a judicial or administrative body of competent jurisdiction as
a result of which it/he was or is now subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws. Messrs. Kaye and Cavalier are citizens of the United
States."
Item 3. Source and Amount of Funds or Other Consideration.
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Item 3 of the Schedule 13D is hereby further amended by adding the
following at the end thereof:
"See Item 5 for further information."
Item 4. Purpose of Transaction.
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This Item 4 is hereby amended and restated to read in its entirety as
follows:
"The acquisition of the securities referred to herein is for the
purpose of having the ability to direct the strategic course of the Company. The
person filing this statement has no present intention to direct the day-to-day
management and affairs of the Company. However, through the covenants in various
financing transaction documents entered into among the Company, the Funds and
Goodnow, and previously disclosed on the initial Schedule 13D filed by
Opportunity Partners jointly with Xmark Asset Management on December 1, 2003,
and its ability to elect a majority of the Board of Directors of the Company by
virtue of its stock ownership, the filing person has the ability, but not the
present intention, to direct the day-to-day management and affairs of the
Company.
David C. Cavalier, the Chief Operating Officer of Opportunity
Partners, is currently the Chairman of the Board of Directors of the Company.
Other than as described above 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.
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This Item 5 is hereby amended and restated to read in its entirety as
follows:
"Based upon information set forth in the Company's most recent
Quarterly Report on Form 10-Q, as filed with the Securities and Exchange
Commission on February 9, 2007, there were 29,286,082 Common Shares of the
Company issued and outstanding as of February 7, 2007.
As of April 18, 2007, Opportunity LP held 2,783,286 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, and warrants to
purchase up to 660,000 Common Shares of the Company at an exercise price of
$0.50 per share. As of April 18, 2007, Opportunity Ltd held 5,437,537 Common
Shares of the Company, which includes 3,300,653 Common Shares of the Company
owned by Goodnow, and warrants to purchase up to 990,000 Common Shares of the
Company at an exercise price of $0.50 per share. As of April 18, 2007, 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 $0.50 per share.
All of the warrants held by Opportunity LP, Opportunity Ltd and JV Partners are
exercisable within 60 days of the date of event which required the filing of
this Amendment No. 9 to Schedule 13D. As of April 18, 2007, Goodnow held
3,529,951 Common Shares of the Company in addition to the Common Shares of the
Company referenced above. As of April 18, 2007, Opportunity Partners had the
right to vote 1,000,000 Common Shares of the Company pursuant to a voting trust
agreement between Opportunity Partners and the holders of record of the shares.
Opportunity Partners possesses sole power to vote and direct the
disposition of all securities of the Company held by the Funds and Goodnow.
Messrs. Kaye and Cavalier share voting and investment power with respect to all
securities beneficially owned by Opportunity Partners. As of April 18, 2007, Mr.
Cavalier held 70,000 Common Shares of the Company issuable upon exercise of
options held by Mr. Cavalier.
As a result of the foregoing, for purposes of Reg. Section 240.13d-3,
Opportunity Partners is deemed to beneficially own 14,344,435 Common Shares of
the Company, or 45.6% of the Common Shares of the Company deemed issued and
outstanding as of April 18, 2007.
During the sixty (60) days on or prior to April 18, 2007, the
below-listed transactions in the Common Shares of the Company, or securities
exercisable for Common Shares of the Company, were consummated by persons
referenced in Item 2. More specifically, all of the below-listed transactions in
the Common Shares of the Company were effected by Opportunity LP and Opportunity
Ltd in ordinary brokerage transactions.
Date Number of Shares Security Type Purchase Price per Share ($)
4/18/2007 20,000 Common Shares 0.6088
4/18/2007 41,000 Common Shares 0.6256
Except for the transactions listed above, none of the persons
referenced in Item 2 traded securities of the Company during the sixty (60) days
on or prior to April 18, 2007.
In addition to the above-listed transactions, on August 31, 2006,
Xmark Fund, L.P., a Delaware limited partnership, and Xmark Fund, Ltd., a Cayman
Islands exempted company (together, the "Xmark Funds"), transferred all of the
securities of the Company held by them to Opportunity LP and Opportunity Ltd.
The disclosed number of Common Shares of the Company collectively held by Xmark
Funds and the Funds did not change as a result of these transfers. The Xmark
Funds ceased to do business subsequent to the transfer."
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
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No material change.
Item 7. Material to be Filed as Exhibits.
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Not applicable.
Signature
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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.
March 14, 2008 XMARK OPPORTUNITY PARTNERS, LLC
By: XMARK CAPITAL PARTNERS, LLC
its Managing Member
By: /s/ Mitchell D. Kaye
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Name: Mitchell D. Kaye
Title: Chief Executive Officer
Attention: Intentional misstatements or omissions of fact constitute Federal
criminal violations (See 18 U.S.C. 1001).