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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP OF SECURITIES Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940 |
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| Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly. | |||
| Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. | SEC 1474 (9-02) | ||
| 1. Title of Derivative Security (Instr. 3) |
2. Conversion or Exercise Price of Derivative Security | 3. Transaction Date (Month/Day/Year) | 3A. Deemed Execution Date, if any (Month/Day/Year) | 4. Transaction Code (Instr. 8) |
5. Number of Derivative Securities Acquired (A) or Disposed of (D) (Instr. 3, 4, and 5) |
6. Date Exercisable and Expiration Date (Month/Day/Year) |
7. Title and Amount of Underlying Securities (Instr. 3 and 4) |
8. Price of Derivative Security (Instr. 5) |
9. Number of Derivative Securities Beneficially Owned Following Reported Transaction(s) (Instr. 4) |
10. Ownership Form of Derivative Security: Direct (D) or Indirect (I) (Instr. 4) |
11. Nature of Indirect Beneficial Ownership (Instr. 4) |
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| Code | V | (A) | (D) | Date Exercisable | Expiration Date | Title | Amount or Number of Shares | ||||||||
| Series A Convertible Preferred Stock | $ 1 | 06/05/2006 | J(1) | 2,150,000 (1) | (1) | (1) | Common Stock | 2,150,000 | (1) | 0 (1) | I (2) (3) (4) | By partnership, corporation and limited liability company (2) (3) (4) | |||
| Series A Convertible Preferred Stock | $ 0.5 | 06/05/2006 | J(1) | 2,150,000 (1) | (1) | (1) | Common Stock | 4,300,000 | (1) | 4,300,000 | I (2) (3) (4) | By partnership, corporation and limited liability company (2) (3) (4) | |||
| Warrants (right to purchase Common Stock) | $ 1 | 06/05/2006 | J(5) | 2,150,000 (5) | (5) | (5) | Common Stock | 2,150,000 | (5) | 0 (5) | I (2) (3) (4) | By partnership, corporation and limited liability company (2) (3) (4) | |||
| Warrants (right to purchase Common Stock) | $ 0.5 | 06/05/2006 | J(5) | 2,150,000 (5) | (5) | (5) | Common Stock | 2,150,000 | (5) | 2,150,000 | I (2) (3) (4) | By partnership, corporation and limited liability company (2) (3) (4) | |||
| Reporting Owner Name / Address | Relationships | |||
| Director | 10% Owner | Officer | Other | |
| Xmark Opportunity Partners, LLC 301 TRESSER BOULEVARD SUITE 1320 STAMFORD, CT 06901 |
X | |||
| /s/ Mitchell D. Kaye, Chief Executive Officer of Xmark Opportunity Partners, LLC | 07/18/2006 | |
| **Signature of Reporting Person | Date |
| * | If the form is filed by more than one reporting person, see Instruction 4(b)(v). |
| ** | Intentional misstatements or omissions of facts constitute Federal Criminal Violations. See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). |
| (1) | On June 5, 2006, Aeolus Pharmaceuticals, Inc., a Delaware corporation, formerly known as Incara Pharmaceuticals Corporation (the "Company"), entered into a private placement of common stock, par value $0.01 per share ("Common Stock"), of the Company and warrants to purchase Common Stock of the Company. Pursuant to the terms of the Certificate of Designations, Preferences and Rights of the Company's Series A Convertible Preferred Stock (the "Series A Preferred") of the Company, the conversion price of the Series A Preferred held by Opportunity LP, Opportunity Ltd and JV Partners automatically was decreased from $1.00 to $0.50 per share, effective as of June 5, 2006. Following the change to the conversion price, the Series A Preferred continues to be exercisable immediately and has no expiration date. |
| (2) | The reporting person, Xmark Opportunity Partners, LLC, a Delaware limited liability company ("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 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 held by Opportunity LP, Opportunity Ltd and JV Partners. Opportunity Partners' interest in the securities reported herein is limited to the extent of its pecuniary interest in Opportunity LP, Opportunity Ltd and JV Partners, if any. |
| (3) | Mitchell D. Kaye and David C. Cavalier, the Chief Executive Officer and Chief Operating Officer, respectively, of Opportunity Partners, the reporting person, share voting and investment power with respect to all securities beneficially owned by Opportunity Partners. Mr. Kaye is also the Chief Executive Officer of Xmark Asset Management, LLC ("XAM") and, as such, exercises sole voting and investment power with respect to all securities beneficially owned by XAM. XAM beneficially owns certain securities of the Company, all of which are subject to the sole voting and/or investment power of XAM. XAM, in its capacity as the holder of sole voting and/or investment power with respect to more than 10% of the Common Stock of the Company pursuant to Reg. 13d-3 separately files statements pursuant to Section 16 of the Securities Exchange Act of 1934, as amended. |
| (4) | Opportunity Partners does not exercise any voting or investment power with respect to the shares of Common Stock of the Company separately reported by XAM, XAM does not exercise any voting or investment power with respect to the shares of Common Stock of the Company held by the reporting person and each of the reporting person and XAM at all times acts independently of the other with respect to their holdings of the securities of the Company. Opportunity Partners does not have any pecuniary interest in the shares of Common Stock of the Company separately reported by XAM and XAM does not have any pecuniary interest in the shares of Common Stock of the Company held by the reporting person. |
| (5) | As a result of the Company's private placement of shares of Common Stock of the Company and warrants to purchase shares of Common Stock of the Company on June 5, 2006, pursuant to the terms of the warrants held by each of Opportunity LP, Opportunity Ltd and JV Partners, the exercise price of such warrants automatically was decreased from $1.00 to $0.50, effective as of June 5, 2006. Following the change to the exercise price, the warrants continue to be exercisable immediately and expire on November 21, 2015 (i.e., 10 years from the date of purchase). |