UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 11)*
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)
October 29, 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: 14,806,178*
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Shares Beneficially 8. Shared Voting Power:
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Owned by
Each Reporting 9. Sole Dispositive Power: 13,806,178*
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Person With 10. Shared Dispositive Power:
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 14,806,178*
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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): 43.4%*
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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 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 October 29, 2007, Opportunity LP held 2,887,986 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 October 29, 2007, Opportunity Ltd held 5,864,528 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 October 29, 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. 11 to Schedule 13D. As of October 29, 2007, Goodnow held 3,529,951 Common
Shares of the Company in addition to the Common Shares of the Company referenced
above. As of October 29, 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
October 29, 2007, David C. Cavalier held 100,000 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 10Q, as filed with the Securities and Exchange Commission on July 30,
2007, there were 31,952,749 Common Shares of the Company issued and outstanding
as of July 30, 2007. As a result of the foregoing, for purposes of Reg. Section
240.13d-3, Opportunity Partners is deemed to beneficially own 14,806,178 Common
Shares of the Company, or 43.4% of the Common Shares of the Company deemed
issued and outstanding as of October 29, 2007.
Item 1. Security and Issuer.
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No material change.
Item 2. Identity and Background.
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No material change.
Item 3. Source and Amount of Funds or Other Consideration.
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This Item 3 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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No material change.
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 July 30, 2007, there were 31,952,749 Common Shares of the Company
issued and outstanding as of July 30, 2007.
As of October 29, 2007, Opportunity LP held 2,887,986 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 October 29, 2007, Opportunity Ltd held 5,864,528 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 October 29, 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 $0.50 per share.
All of the warrants held by Opportunity LP, Opportunity Ltd and JV Partners are
exercisable within 60 days of the date of event which required the filing of
this Amendment No. 11 to Schedule 13D. As of October 29, 2007, Goodnow held
3,529,951 Common Shares of the Company in addition to the Common Shares of the
Company referenced above. As of October 29, 2007, Opportunity Partners had the
right to vote 1,000,000 Common Shares of the Company pursuant to a voting trust
agreement between Opportunity Partners and the holders of record of the shares.
Opportunity Partners possesses sole power to vote and direct the
disposition of all securities of the Company held by the Funds and Goodnow.
Messrs. Kaye and Cavalier share voting and investment power with respect to all
securities beneficially owned by Opportunity Partners. As of October 29, 2007,
Mr. Cavalier held 100,000 Common Shares of the Company issuable upon exercise of
options held by Mr. Cavalier.
As a result of the foregoing, for purposes of Reg. Section 240.13d-3,
Opportunity Partners is deemed to beneficially own 14,806,178 Common Shares of
the Company, or 43.4% of the Common Shares of the Company deemed issued and
outstanding as of October 29, 2007.
During the sixty (60) days on or prior to October 29, 2007, the
below-listed transactions in the Common Shares of the Company, or securities
exercisable for Common Shares of the Company, were consummated by persons
referenced in Item 2. More specifically, all of the below-listed transactions in
the Common Shares of the Company were effected by Opportunity LP and Opportunity
Ltd in ordinary brokerage transactions.
Number of Purchase Price
Date Shares Security Type per Share ($)
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8/30/2007 62 Common Shares 0.4000
8/31/2007 15,000 Common Shares 0.5115
9/25/2007 2,000 Common Shares 0.4700
9/27/2007 15,000 Common Shares 0.4733
9/28/2007 7,000 Common Shares 0.5043
9/28/2007 12,500 Common Shares 0.5180
10/02/2007 25,000 Common Shares 0.4580
10/05/2007 20,000 Common Shares 0.5020
10/08/2007 10,000 Common Shares 0.4600
10/09/2007 4,000 Common Shares 0.4809
10/11/2007 13,000 Common Shares 0.4942
10/15/2007 21,000 Common Shares 0.4201
10/16/2007 27,500 Common Shares 0.4400
10/18/2007 5,000 Common Shares 0.4400
10/19/2007 11,000 Common Shares 0.4291
10/24/2007 31,100 Common Shares 0.4080
10/25/2007 25,000 Common Shares 0.4000
10/29/2007 19,800 Common Shares 0.4448
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 October 29, 2007."
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 25, 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).