|
UNITED STATES |
OMB APPROVAL |
|
SECURITIES AND EXCHANGE |
OMB Number: |
|
Washington, D.C. 20549 |
Expires: February 28, 2009 |
|
SCHEDULE 13D |
Estimated average burden hours per response. . 14.5 |
AEOLUS PHARMACEUTICALS, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
45325 S-10-1
(CUSIP Number)
EFFICACY CAPITAL, LTD.
Mark Lappe, Managing Partner 11622 El Camino Real, Suite 100 |
with a copy to: |
(Name, Address and
Telephone Number of Person
Authorized to Receive Notices and Communications)
June 5, 2006
(Date of Event which
Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §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).
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.
CUSIP No. 45325 S-10-1 |
|||||
|
|||||
|
1. |
Names of Reporting Persons. EFFICACY
BIOTECH FUND L.P. |
|||
|
|||||
|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
|||
|
|
(a) |
|
||
|
|
(b) |
X |
||
|
|||||
|
3. |
SEC Use Only |
|||
|
|||||
|
4. |
Source of Funds (See Instructions) WC |
|||
|
|||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable. |
|||
|
|||||
|
6. |
Citizenship or Place of Organization DELAWARE, USA |
|||
|
|||||
Number of |
7. |
Sole Voting Power 0 |
|||
|
|||||
8. |
Shared Voting Power 20,660,000 shares |
||||
|
|||||
9. |
Sole Dispositive Power 0 |
||||
|
|||||
10. |
Shared Dispositive Power 20,660,000 shares |
||||
|
|||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 20,660,000 shares |
|||
|
|||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) Not Applicable |
|||
|
|||||
|
13. |
Percent of Class Represented by Amount in Row (11) 51.64% |
|||
|
|||||
|
14. |
Type of Reporting Person (See Instructions) PN |
|||
2
CUSIP No. 45325 S-10-1 |
|||||
|
|||||
|
1. |
Names of Reporting Persons. EFFICACY
BIOTECH FUND LTD. |
|||
|
|||||
|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
|||
|
|
(a) |
|
||
|
|
(b) |
X |
||
|
|||||
|
3. |
SEC Use Only |
|||
|
|||||
|
4. |
Source of Funds (See Instructions) WC |
|||
|
|||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable. |
|||
|
|||||
|
6. |
Citizenship or Place of Organization BERMUDA |
|||
|
|||||
Number of |
7. |
Sole Voting Power 0 |
|||
|
|||||
8. |
Shared Voting Power 20,660,000 shares |
||||
|
|||||
9. |
Sole Dispositive Power 0 |
||||
|
|||||
10. |
Shared Dispositive Power 20,660,000 shares |
||||
|
|||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 20,660,000 shares |
|||
|
|||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) Not Applicable |
|||
|
|||||
|
13. |
Percent of Class Represented by Amount in Row (11) 51.64% |
|||
|
|||||
|
14. |
Type of Reporting Person (See Instructions) OO |
|||
3
CUSIP No. 45325 S-10-1 |
|||||
|
|||||
|
1. |
Names of Reporting Persons. EFFICACY
BIOTECH MASTER FUND LTD. |
|||
|
|||||
|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
|||
|
|
(a) |
|
||
|
|
(b) |
X |
||
|
|||||
|
3. |
SEC Use Only |
|||
|
|||||
|
4. |
Source of Funds (See Instructions) WC |
|||
|
|||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable. |
|||
|
|||||
|
6. |
Citizenship or Place of Organization BERMUDA |
|||
|
|||||
Number of |
7. |
Sole Voting Power 0 |
|||
|
|||||
8. |
Shared Voting Power 20,660,000 shares |
||||
|
|||||
9. |
Sole Dispositive Power 0 |
||||
|
|||||
10. |
Shared Dispositive Power 20,660,000 shares |
||||
|
|||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 20,660,000 shares |
|||
|
|||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) Not Applicable |
|||
|
|||||
|
13. |
Percent of Class Represented by Amount in Row (11) 51.64% |
|||
|
|||||
|
14. |
Type of Reporting Person (See Instructions) OO |
|||
4
CUSIP No. 45325 S-10-1 |
|||||
|
|||||
|
1. |
Names of Reporting Persons. EFFICACY
CAPITAL LTD. |
|||
|
|||||
|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
|||
|
|
(a) |
|
||
|
|
(b) |
X |
||
|
|||||
|
3. |
SEC Use Only |
|||
|
|||||
|
4. |
Source of Funds (See Instructions) WC |
|||
|
|||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable. |
|||
|
|||||
|
6. |
Citizenship or Place of Organization BERMUDA |
|||
|
|||||
Number of |
7. |
Sole Voting Power 0 |
|||
|
|||||
8. |
Shared Voting Power 20,660,000 shares |
||||
|
|||||
9. |
Sole Dispositive Power 0 |
||||
|
|||||
10. |
Shared Dispositive Power 20,660,000 shares |
||||
|
|||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 20,660,000 shares |
|||
|
|||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) Not Applicable |
|||
|
|||||
|
13. |
Percent of Class Represented by Amount in Row (11) 51.64% |
|||
|
|||||
|
14. |
Type of Reporting Person (See Instructions) OO |
|||
5
CUSIP No. 45325 S-10-1 |
|||||
|
|||||
|
1. |
Names of Reporting Persons. MARK LAPPE |
|||
|
|||||
|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
|||
|
|
(a) |
|
||
|
|
(b) |
X |
||
|
|||||
|
3. |
SEC Use Only |
|||
|
|||||
|
4. |
Source of Funds (See Instructions) OO |
|||
|
|||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable. |
|||
|
|||||
|
6. |
Citizenship or Place of Organization USA |
|||
|
|||||
Number of |
7. |
Sole Voting Power 0 |
|||
|
|||||
8. |
Shared Voting Power 20,660,000 shares |
||||
|
|||||
9. |
Sole Dispositive Power 0 |
||||
|
|||||
10. |
Shared Dispositive Power 20,660,000 shares |
||||
|
|||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 20,660,000 shares |
|||
|
|||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) Not Applicable |
|||
|
|||||
|
13. |
Percent of Class Represented by Amount in Row (11) 51.64% |
|||
|
|||||
|
14. |
Type of Reporting Person (See Instructions) IN |
|||
6
CUSIP No. 45325 S-10-1 |
|||||
|
|||||
|
1. |
Names of Reporting Persons. JON FAIZ
KAYYEM |
|||
|
|||||
|
2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
|||
|
|
(a) |
|
||
|
|
(b) |
X |
||
|
|||||
|
3. |
SEC Use Only |
|||
|
|||||
|
4. |
Source of Funds (See Instructions) OO |
|||
|
|||||
|
5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) Not applicable. |
|||
|
|||||
|
6. |
Citizenship or Place of Organization USA |
|||
|
|||||
Number of |
7. |
Sole Voting Power 0 |
|||
|
|||||
8. |
Shared Voting Power 20,660,000 shares |
||||
|
|||||
9. |
Sole Dispositive Power 0 |
||||
|
|||||
10. |
Shared Dispositive Power 20,660,000 shares |
||||
|
|||||
|
11. |
Aggregate Amount Beneficially Owned by Each Reporting Person 20,660,000 shares |
|||
|
|||||
|
12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) Not Applicable |
|||
|
|||||
|
13. |
Percent of Class Represented by Amount in Row (11) 51.64% |
|||
|
|||||
|
14. |
Type of Reporting Person (See Instructions) IN |
|||
7
Item 1. Security and Issuer
(a) Class of Equity Securities: Common Stock
(b) Name of Issuer: AEOLUS PHARMACEUTICALS, INC. (the Company)
(c) Address of Issuers Principal Executive Offices:
23811 Inverness Place
Laguna Niguel, CA 92677
Item 2. Identity and Background
(a) Name of Person Filing:
See Item 1 of each cover page.
Pursuant to Rule 13d-1(a) of General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the Act), the undersigned hereby file this Schedule 13D Statement (this Schedule 13D) on behalf of (i) Mark Lappe, (ii) Jon Faiz Kayyem, (iii) Efficacy Capital Ltd., a Bermuda limited liability company (Efficacy Capital), (iv) Efficacy Biotech Fund, L.P., a Delaware limited partnership (EBF), (v) Efficacy Biotech Fund Limited, a Bermuda Exempted Mutual Fund Company (EBFL), and (vi) Efficacy Biotech Master Fund Ltd., a Bermuda Exempted Mutual Fund Company (EBMFL) (collectively, the Reporting Persons).
(b) Address or Principal Business Office:
11622 El Camino Real, Suite 100
San Diego, CA 92130
(c) Mark Lappe is a Managing Partner of Efficacy Capital Ltd., the Investment Manager for the Reporting Persons. Jon Faiz Kayyem is a Managing Partner of Efficacy Capital Ltd. the Investment Manager for the Reporting Persons.
(d) Not applicable.
(e) Not applicable.
(f) Citizenship:
See Item 6 of each cover page.
Item 3. Source and Amount of Funds or Other Consideration
On June 5, 2006, the Company entered into a certain subscription agreement (the Subscription Agreement) with EBMFL and another investor for the sale of the aggregate amount of 10,000,000 shares of common stock of the Company par value $0.01 per share (Common Stock), at a purchase price of Fifty Cents ($0.50) per share, together with warrants to purchase 7,000,000 shares of Common Stock at an exercise price of Seventy-Five Cents ($0.75) per share and warrants to purchase 4,000,000 shares of Common Stock at an exercise price of Fifty Cents ($0.50) per share (collectively, Warrants), in a private placement. All of the funds used to purchase the Common Stock or Warrants were from the working capital of one or more of the Reporting Persons.
Item 4. Purpose of Transaction
The acquisition of the securities referred to herein is for the purpose of investing in the Company. The Company and EBMFL entered into a Right of First Offer Agreement dated June 5, 2006 (the Right of First Offer Agreement), pursuant to which the Company granted a right of first offer to EBMFL with respect to any future sales by the Company of its shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock or any debt securities. The Company and EBMFL entered into a letter agreement dated June 5, 2006 (Board Observer Letter), pursuant to which EBMFL will be entitled to (i) observer rights with respect to the Companys Board of Directors and (ii) consult with and advise management of the Company on significant business issues, including managements proposed annual operating plans. Other than as described herein, the Reporting Persons have no present plans or intentions which relate to or would result in any of the transactions required to be described in Item 4 of this Schedule 13D.
8
Item 5. Interest in Securities of the Issuer
Efficacy Capital is a Reporting Person with respect to shares of Common Stock and Warrants of the Company held for the account of EBMFL to which it acts as investment adviser with investment discretion over portfolio investments. Efficacy Capital is the manager of EBMFL. Mark Lappe is a principal and managing partner of Efficacy Capital. Jon Faiz Kayyem is a principal and Managing Partner of Efficacy Capital. EBF and EBFL each own an indirect interest in the shares of Common Stock and Warrants due to their respective interests in EBMFL.
The Reporting Persons are making this single, joint filing because they may be deemed to constitute a group within the meaning of Section 13(d)(3) of the Act, although neither the fact of this filing nor anything contained herein shall be deemed to be an admission by the Reporting Persons that such a group exists.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
In connection with the transactions described herein, (i) the Company, EBMFL and Ronin Capital, LLC entered into the Subscription Agreement, (ii) Company and EBMFL entered into the Right of First Offer Agreement, pursuant to which the Company granted a right of first offer to EBMFL with respect to any future sales by the Company of its shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock or any debt securities and (iii) the Company, EBMFL, Ronin Capital, LLC and the holders of the Companys Series A Preferred Stock (the Series A Holders) entered into a Conversion Agreement dated June 5, 2006, pursuant to which the Series A Holders agreed to convert their shares of Series A Preferred Stock into Common Stock.
The descriptions of the transactions and agreements set forth in this Schedule 13D are qualified in their entirety by reference to the complete agreements governing such matters, each of which are incorporated by reference into this Schedule 13D as exhibits pursuant to Item 7 hereof.
Except as otherwise described herein, no contracts arrangements, understandings or similar relationships exist with respect to the securities of the Company between the Reporting Persons and any other person or entity.
Item 7. Material to Be Filed as Exhibits
1. Subscription Agreement dated June 5, 2006 by and between the Company and the investors whose names appear on the signature pages thereof. (1)
2. Conversion Agreement dated June 5, 2006 by and among the Company, the Companys Series A Preferred Stockholders, Efficacy Biotech Master Fund Ltd. and Ronin Capital, LLC. (1)
3. Form of Warrant to Purchase Common Stock dated June 5, 2006. (1)
4. Warrant to Purchase Common Stock dated June 5, 2006 by and among the Company and Efficacy Biotech Master Fund Ltd. (1)
5. Right of First Offer Agreement dated June 5, 2006 by and among the Company and Efficacy Biotech Master Fund Ltd. (1)
6. Board Observer Letter dated June 5, 2006 by and among the Company and Efficacy Biotech Master Fund Ltd. (1)
(1) Incorporated by reference to the Company's Current Report on Form 8-K, filed June 6, 2006.
9
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.
June 9, 2006 |
|
Date |
|
|
|
/s/ Mark Lappe |
|
Mark Lappe |
|
|
|
/s/ Jon Faiz Kayyem |
|
Jon Faiz Kayyem |
|
|
|
Efficacy Capital Ltd., |
|
a Bermuda limited liability company |
|
|
|
/s/ Mark Lappe |
|
By: Mark Lappe |
|
Its: Managing Partner |
|
|
|
Efficacy Biotech Fund, L.P., |
|
a Delaware limited partnership |
|
|
|
By: Efficacy Capital Ltd. |
|
Its: General Partner |
|
|
|
|
/s/ Mark Lappe |
By: Mark Lappe |
|
Its: Managing Partner |
|
|
|
Efficacy Biotech Fund Limited, |
|
a Bermuda Exempted Mutual Fund Company |
|
|
|
By: Efficacy Capital Ltd. |
|
Its: Manager |
|
|
|
|
/s/ Mark Lappe |
By: Mark Lappe |
|
Its: Managing Partner |
|
|
|
Efficacy Biotech Master Fund Ltd., |
|
a Bermuda Exempted Mutual Fund Company |
|
|
|
By: Efficacy Capital Ltd. |
|
Its: Manager |
|
|
|
|
/s/ Mark Lappe |
By: Mark Lappe |
|
Its: Managing Partner |
The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representatives authority to sign on behalf of such person shall be filed with the statement: provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature.
Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) 7
EXHIBITS:
Exhibit 1: Joint Filing Agreement
10
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them a Statement on Schedule 13D (including amendments thereto) with regard to the common stock of Aeolus Pharmaceuticals, Inc., a Delaware corporation, and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filings. In evidence thereof, the undersigned, being duly authorized, hereby execute this Joint Filing Agreement as of June 9, 2005.
/s/ Mark Lappe |
|
Mark Lappe |
|
|
|
/s/ Jon Faiz Kayyem |
|
Jon Faiz Kayyem |
|
|
|
Efficacy Capital Ltd., |
|
a Bermuda limited liability company |
|
|
|
/s/ Mark Lappe |
|
By: Mark Lappe |
|
Its: Managing Partner |
|
|
|
Efficacy Biotech Fund, L.P., |
|
a Delaware limited partnership |
|
|
|
By: Efficacy Capital Ltd. |
|
Its: General Partner |
|
|
|
|
/s/ Mark Lappe |
By: Mark Lappe |
|
Its: Managing Partner |
|
|
|
Efficacy Biotech Fund Limited, |
|
a Bermuda Exempted Mutual Fund Company |
|
|
|
By: Efficacy Capital Ltd. |
|
Its: Manager |
|
|
|
|
/s/ Mark Lappe |
By: Mark Lappe |
|
Its: Managing Partner |
|
|
|
Efficacy Biotech Master Fund Ltd., |
|
a Bermuda Exempted Mutual Fund Company |
|
|
|
By: Efficacy Capital Ltd. |
|
Its: Manager |
|
|
|
|
/s/ Mark Lappe |
By: Mark Lappe |
|
Its: Managing Partner |
11