Attached files
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| EX-5.1 - EXHIBIT 5.1 - AEOLUS PHARMACEUTICALS, INC. | exh5_1.htm |
As filed with the Securities and Exchange Commission on May 31, 2013
Registration No. 333-188670
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AEOLUS PHARMACEUTICALS, INC.
(Exact Name of Issuer in Its Charter)
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Delaware
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2834
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56-1953785
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Number)
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(I.R.S. Employer
Identification No.)
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Aeolus Pharmaceuticals, Inc.
26361 Crown Valley Parkway, Suite 150
Mission Viejo, California 92691
(949) 481-9825
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
______________
John McManus
President and Chief Executive Officer
Aeolus Pharmaceuticals, Inc.
26361 Crown Valley Parkway, Suite 150
Mission Viejo, California 92691
(949) 481-9825
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________
Copies of all communications to:
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Michael A. Hedge
Jeffrey J. Plumer
K&L Gates LLP
1900 Main Street, Suite 600
Irvine, California 92614
(949) 253-0900
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______________
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ Accelerated filer ¨
Non-accelerated filer o (Do not check if a smaller reporting company) Smaller reporting company x
______________
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
______________
EXPLANATORY NOTE
This Amendment No. 1 on Form S-1/A to the Registration Statement on Form S-1 filed with the Commission on May 16, 2013 is being filed solely to file a Exhibit 5.1 legal opinion and to update the Exhibit Index. The other portions of the Form S-1 are not affected by the changes described above and have not been amended.
EXHIBIT INDEX
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Incorporated by Reference To
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Exhibit
Number
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Description of Document
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Registrant’s
Form
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Date Filed with the SEC
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Exhibit
Number
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Filed
Herewith
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2.1
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Agreement and Plan of Merger and Reorganization dated September 16, 2003 between Incara, Inc. and Incara Pharmaceuticals Corporation
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S-4
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09/19/03
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2.1
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3.1
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Amended and Restated Certificate of Incorporation
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10-K
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12/31/12
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3.1
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4.1
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Form of Common Stock Certificate
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10-Q
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08/11/04
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4.1
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4.2
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Form of Series B Preferred Stock Certificate
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S-4
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09/19/03
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4.8
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4.3
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Form of Warrant to Purchase Common Stock dated June 5, 2006.
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8-K
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06/06/06
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10.3
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4.4
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Registration Rights Agreement dated May 22, 2007 by and among the Company and each of the Purchasers whose names appear on the Schedule attached thereto.
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8-K
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5/23/07
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4.1
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4.5
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Registration Rights Agreement dated October 6, 2009 by and among the Company and the investors whose names appear on the signature pages thereof.
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8-K
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10/06/09
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4.1
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4.6
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Form of Warrant to Purchase Common Stock dated May 22, 2007.
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8-K
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5/23/07
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10.2
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4.7
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Form of Warrant to Purchase Common Stock
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8-K
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10/06/09
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10.2
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4.8
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Registration Rights Agreement dated September 16, 2003 among Incara Pharmaceuticals Corporation, Incara, Inc. and Goodnow Capital, L.L.C.
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S-4
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09/19/03
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10.101
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4.9
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Registration Rights Agreement dated August 11, 2010 by and among Aeolus Pharmaceuticals, Inc. and the investors listed therein
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8-K
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8/12/10
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4.1
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Opinion of K&L Gates LLP
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S-1
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5/14/12
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5.1
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X
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10.1*
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License Agreement between Duke University and Aeolus Pharmaceuticals, Inc., dated July 21, 1995
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S-1
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12/08/95
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10.4
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10.2
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Amended and Restated Limited Liability Company Agreement of CPEC LLC dated July 15, 1999, among CPEC LLC, Intercardia, Inc. and Interneuron Pharmaceuticals, Inc.
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8-K
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07/23/99
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10.42
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10.3
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Assignment, Assumption and License Agreement dated July 15, 1999, between CPEC LLC and Intercardia, Inc.
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8-K
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07/23/99
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10.43
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10.4*
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License Agreement dated January 19, 2001 between Incara Pharmaceuticals Corporation and Incara Development, Ltd.
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10-Q
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02/13/01
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10.59
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10.5*
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License Agreement dated January 19, 2001 between Elan Corporation, plc, Elan Pharma International Ltd. and Incara Development, Ltd.
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10-Q
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02/13/01
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10.60
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10.6
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Registration Rights Agreement dated December 21, 2000 among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Ltd.
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10-Q
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02/13/01
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10.62
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10.7
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Agreement and Amendment, effective as of January 22, 2001, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
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10-Q
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05/14/01
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10.64
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10.8
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Second Agreement and Amendment, effective as of January 22, 2001, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
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10-Q
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05/14/01
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10.65
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Incorporated by Reference To
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Exhibit
Number
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Description of Document
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Registrant’s
Form
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Date Filed with the SEC
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Exhibit
Number
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Filed
Herewith
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10.9
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Third Agreement and Amendment, effective as of January 22, 2001, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
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8-K
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06/01/01
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10.66
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10.10
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Agreement and Fourth Amendment, effective February 13, 2002, by and among Incara Pharmaceuticals Corporation, Elan International Services, Ltd., Elan Pharma International Limited and Elan Pharmaceutical Investments III, Ltd.
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10-Q
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02/14/02
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10.75
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10.11*
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License Agreement dated June 25, 1998 between Duke University and Aeolus Pharmaceuticals, Inc.
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10-Q
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05/15/02
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10.82
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10.12*
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License Agreement dated May 7, 2002 between Duke University and Aeolus Pharmaceuticals, Inc.
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10-Q
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05/15/02
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10.83
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10.13*
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License Agreement dated November 17, 2000 between National Jewish Medical and Research Center and Aeolus Pharmaceuticals, Inc.
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10-Q
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02/13/01
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10.56
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10.14
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Exclusive License Agreement, dated January 15, 2009, by and between the Company and National Jewish Health
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10-Q
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05/16/11
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10.7
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10.15*
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Securities Purchase Agreement dated as of May 15, 2002, among Incara Pharmaceuticals Corporation, Aeolus Pharmaceuticals, Inc., Elan Pharma International Limited and Elan International Services, Ltd.
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8-K/A
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07/03/02
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10.84
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10.16*
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Development and Option Agreement dated May 15, 2002, among Elan Pharma International Limited, Incara Pharmaceuticals Corporation and Aeolus Pharmaceuticals, Inc.
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8-K/A
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07/03/02
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10.85
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10.17
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Amended and Restated Registration Rights Agreement dated as of May 15, 2002, among Incara Pharmaceuticals Corporation, Elan International Services, Ltd. and Elan Pharma International Limited
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8-K/A
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07/03/02
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10.86
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10.18
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Amendment No. 1 to License Agreement dated May 14, 2002, between Aeolus Pharmaceuticals, Inc. and Duke University (amending License Agreement dated July 21, 1995)
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8-K/A
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07/03/02
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10.87
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10.19
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Amendment No. 1 to License Agreement dated May 14, 2002, between Aeolus Pharmaceuticals, Inc. and Duke University (amending License Agreement dated June 25, 1998)
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8-K/A
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07/03/02
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10.88
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10.20
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Amendment No. 1 to License Agreement dated May 14, 2002, between Aeolus Pharmaceuticals, Inc. and National Jewish Medical and Research Center (amending License Agreement dated November 17, 2000)
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8-K/A
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07/03/02
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10.89
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10.21*
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Subaward Agreement, dated March 16, 2011, by and between the Company and the Office of Research and Development of the University of Maryland, Baltimore
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10-Q
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05/16/11
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10.4
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10.22
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Letter dated May 17, 2004 from Elan International Services, Limited and Elan Pharma International Limited to Incara Pharmaceuticals Corporation
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10-Q
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08/11/04
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10.106
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10.23+
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Aeolus Pharmaceuticals, Inc. 1994 Stock Option Plan, as amended
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10-Q
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08/11/04
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10.109
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10.24+
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Aeolus Pharmaceuticals, Inc. Amended and Restated 2004 Stock Incentive Plan
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S-8
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04/28/11
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99.1
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Incorporated by Reference To
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Exhibit
Number
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Description of Document
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Registrant’s
Form
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Date Filed with the SEC
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Exhibit
Number
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Filed
Herewith
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10.25+
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Amended and Restated Employment Agreement dated March 4, 2013 between Aeolus Pharmaceuticals, Inc. and John L. McManus
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[8-K]
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[03/04/12]
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[10.1]
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10.26+
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Letter Agreement dated July 10, 2006 between Aeolus Pharmaceuticals, Inc. and McManus & Company, Inc.
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8-K
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07/10/06
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10.2
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10.27+
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Form of Indemnity Agreement
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10-K
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12/27/11
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10.27
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10.28
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Terms of Outside Director Compensation
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10-K
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12/17/04
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10.114
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10.29+
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Form of Incentive Stock Option Agreement
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10-Q
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02/08/05
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10.115
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10.30+
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Form of Nonqualified Stock Option Agreement
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10-Q
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02/08/05
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10.116
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10.31
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Subscription Agreement dated June 5, 2006 by and between the Company and the investors whose names appear on the signature pages thereof.
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8-K
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06/06/06
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10.1
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10.32
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Board Observer Letter dated June 5, 2006 by and among the Company and Efficacy Biotech Master Fund Ltd.
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8-K
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06/06/06
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10.6
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10.33+
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Consulting Agreement, dated December 1, 2010, between Aeolus Pharmaceuticals, Inc. and Brian J. Day
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8-K
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12/03/10
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10.1
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10.34*
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Sponsored Research Agreement (Non-Clinical), dated April 12, 2011, by and between the Company and Duke University
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10-Q
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05/16/11
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10.5
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10.35
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Securities Purchase Agreement dated August 11, 2010 by and among Aeolus Pharmaceuticals, Inc. and the investors listed therein
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8-K
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8/12/10
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10.1
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10.36
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Form of Warrant pursuant to Securities Purchase Agreement dated August 11, 2010 by and among Aeolus Pharmaceuticals, Inc. and the investors listed therein
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8-K
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8/12/10
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10.2
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10.37
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Convertible Promissory Note dated February 7, 2007 issued by Aeolus Pharmaceuticals, Inc. to Elan Pharma International Ltd.
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S-1
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06/04/07
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10.43
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10.38
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Amendment No. 1 To Convertible Promissory Note dated February 7, 2009 by and between Aeolus Pharmaceuticals, Inc. and Elan Pharma International Limited
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8-K
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3/16/09
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10.1
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10.39+
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Form of Restricted Share Award Agreement
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S-8 POS
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3/31/08
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99.2
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10.40
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Securities Purchase and Exchange Agreement dated October 6, 2009 by and among the Company and the investors whose names appear on the signature pages thereof
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8-K
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10/06/09
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10.1
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10.41
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Amendment Agreement to the Securities Purchase and Exchange Agreement, dated December 24, 2009, by and among the Company and the investors whose names appear on the signature pages thereof
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8-K
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12/28/09
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10.1
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10.42+
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Offer Letter, dated September 1, 2010 between the Company and Russell Skibsted
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8-K
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02/16/11
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10.1
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||||||||||
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10.43*
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Contract No. HHSO100201100007C, dated February 11, 2011, by and between the Company and the U.S. Department of Health and Human Services Biomedical Advanced Research and Development Authority
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10-Q
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05/16/11
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10.1
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Research and Manufacturing Agreement, dated February 18, 2011 (the “JMPS Agreement”), by and between the Company and Johnson Matthey Pharmaceutical Materials, Inc. (d/b/a Johnson Matthey Pharma Services).
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10-Q | 05/16/11 | 10.2 | ||||||||||
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10.45*
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Appendix 2 to the JMPS Agreement, dated February 18, 2011
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10-Q | 8/14/12 | 10.4 | ||||||||||
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Incorporated by Reference To
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Exhibit
Number
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Description of Document
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Registrant’s
Form
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Date Filed with the SEC
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Exhibit
Number
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Filed
Herewith
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10.46*
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Appendix 3 to the JMPS Agreement, dated April 30, 2012
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10-Q
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8/14/12
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10.5
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10.47*
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Appendix 4 to the JMPS Agreement, dated April 30, 2012
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10-Q
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8/14/12
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10.6
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10.48*
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Appendix 5 to the JMPS Agreement, dated April 30, 2012
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10-Q
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8/14/12
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10.7
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10.49*
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Appendix 6 to the JMPS Agreement, dated April 30, 2012
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10-Q
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8/14/12
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10.8
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10.50*
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General Management Consulting Assignment, dated February 23, 2011, by and between the Company and Booz Allen Hamilton Inc.
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10-Q
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05/16/11
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10.3
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||||||||||
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10.51
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Form of Securities Purchase Agreement by and among the Company and the investors whose names appear on the signature pages thereof
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8-K
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4/5/12
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10.1
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10.52
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Form of Registration Rights Agreement by and among the Company and the investors party thereto
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8-K
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4/5/12
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10.2
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10.53
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Form of Warrant issued to investors in March and April 2012
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8-K
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4/5/12
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10.3
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10.54
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Form of Securities Purchase Agreement by and among the Company and the investors whose names appear on the signature pages thereof
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8-K
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2/19/13
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10.1
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10.55
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Form of Registration Rights Agreement by and among the Company and the investors party thereto
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8-K
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2/19/13
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10.2
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10.56
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Form of Warrant issued to investors in February 2013
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8-K
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2/19/13
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10.3
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10.57
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Warrant Repricing, Exercise and Lockup Agreement dated February 19, 2013 by and among the Company and the warrant holders named therein
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8-K
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2/19/13
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10.4
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10.58
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Form of Securities Purchase Agreement by and among the Company and the investors whose names appear on the signature pages thereof
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8-K
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3/4/13
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10.1
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||||||||||
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10.59
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Form of Registration Rights Agreement by and among the Company and the investors party thereto
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8-K
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3/4/13
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10.2
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10.60
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Form of Warrant issued to investors in March 2013
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8-K
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3/4/13
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10.3
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21.1
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List of Subsidiaries
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10-K
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12/31/12
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21.1
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23.1
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Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm
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S-1
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5/16/13
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23.1
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23.2
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Consent of K&L Gates LLP (included in its opinion filed as Exhibit 5.1)
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X
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24.1
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Power of Attorney
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S-1
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5/16/13
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24.1
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101.INS†
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XBRL Instance Document
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S-1
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5/16/13
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101.INS
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101.SCH†
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XBRL Taxonomy Extension Schema Document
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S-1
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5/16/13
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101.SCH
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101.CAL†
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XBRL Taxonomy Extension Calculation Linkbase Document
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S-1
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5/16/13
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101.CAL
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101.DEF†
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XBRL Taxonomy Extension Definition Linkbase Document
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S-1
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5/16/13
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101.DEF
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101.LAB†
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XBRL Taxonomy Extension Label Linkbase Document
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S-1
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5/16/13
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101.LAB
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101.PRE†
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XBRL Taxonomy Extension Presentation Linkbase Document
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S-1
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5/16/13
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101.PRE
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* The Company has received confidential treatment of certain portions of this agreement which have been omitted and filed separately with the U.S. Securities and Exchange Commission.
+ Indicates management contract or compensatory plan or arrangement.
†† Attached as Exhibit 101 to this report are documents formatted in XBRL (Extensible Business Reporting Language). Users of this data are advised that, pursuant to Rule 406T of Regulation S-T, the interactive data file is deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is otherwise not subject to liability under these sections.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mission Viejo, California, on the 31st day of May, 2013.
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AEOLUS PHARMACEUTICALS, INC.
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By:
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/s/ John McManus
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John McManus
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ John L. McManus
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President and Chief Executive Officer
(principal executive officer)
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May 31, 2013
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John L. McManus
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/s/Russell Skibsted
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Chief Financial Officer |
May 31, 2013
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Russell Skibsted
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(principal financial and accounting officer) |
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David C. Cavalier
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Director (Chairman)
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May 31, 2013
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*
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John M. Farah, Jr., Ph.D.
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Director
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May 31, 2013
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*
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John M. Clerici
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Director
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May 31, 2013
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*
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Amit Kumar, Ph.D.
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Director
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May 31, 2013
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Mitchell D. Kaye, J.D.
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Director
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*
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Chris A. Rallis
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Director
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May 31, 2013
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*
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Jeffrey A. Scott, M.D.
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Director
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May 31, 2013
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| * By: |
/s/Russell Skibsted
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Russell Skibsted, Attorney-In-Fact
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