Exhibit 10.3
AMENDMENT NO. 2 TO SECURITIES
PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO SECURITIES PURCHASE
AGREEMENT (this " Amendment "), is being entered into
and effective as of March 30, 2009, by and among AEOLUS
PHARMACEUTICALS, INC., a Delaware corporation with its headquarters
located at 26361 Crown Valley Parkway, Suite 150, Mission Viejo,
California 92691, as issuer (the " Company
"), and XMARK OPPORTUNITY FUND, L.P. and XMARK OPPORTUNITY FUND,
LTD. (collectively, the " Investors "), as Buyers (as
defined in the Agreement (as defined below)) and holders of all the
outstanding 7% Senior Convertible Notes due 2011 of the Company and
warrants to purchase common stock of the Company issued on the
Initial Closing Date (as defined in the Agreement).
WHEREAS , the parties to this Amendment entered into
that certain Securities Purchase Agreement, dated as of
August 1, 2008, as amended by that certain Amendment No. 1 to
Securities Purchase Agreement, dated as of August 4, 2008 (the
" Agreement "); and
WHEREAS , the Company and the Investors wish to further
amend the Agreement in order to extend the Election Termination
Date (as defined in Section 1(c)(i) of the
Agreement).
NOW ,
THEREFORE , the Company and each Investor
agree that the Agreement is hereby amended as follows:
1. DEFINED
TERMS . Capitalized terms used in this Amendment but
not defined herein shall have the meanings assigned such terms in
the Agreement.
2. ELECTION TO
PURCHASE ADDITIONAL UNITS . Section 1(c)(i),
"Election to Purchase Additional Units," of the Agreement is hereby
amended by replacing “the eighteen (18) month anniversary of
the Initial Closing Date” as it appears in the first sentence
of such section with "December 31, 2013".
3.
INVESTOR’S REPRESENTATIONS AND WARRANTIES
. Each Investor, severally and not jointly, represents
and warrants to the Company that:
(a) Holder of Notes
and Warrants Issued at Initial Closing . Such
Investor is the holder of (A) all of the Notes and Warrants issued
to it at the Initial Closing and (B) all such Notes and Warrants
issued to XMARK JV INVESTMENT PARTNERS, LLC at the Initial Closing
and previously transferred to such Investor in accordance with the
terms thereof, in each case none of which Notes or Warrants have
been converted or exercised, respectively, as of the date hereof,
and none of such Investor’s (i) right, title or interest
in such Notes and Warrants or the Conversion Shares and Warrant
Shares, as the case may be, underlying such Notes and Warrants, or
(ii) rights under the Agreement, have been transferred or
assigned to any other Person as of the date hereof.
(b) Validity;
Enforcement . The execution, delivery and
performance by such Investors of this Amendment have been duly and
validly authorized, executed and delivered on behalf of such
Investor and shall constitute the legal, valid and binding
obligations of such Investor enforceable against such Investor in
accordance with their respective terms, except (i) as
may be limited
by general principles of equity or to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights generally, (ii) as limited by
laws relating to specific performance, injunctive relief of other
equitable remedies, and (iii) to the extent the indemnification
provisions contained in the Agreement, as amended by this
Amendment, may be limited by applicable laws.
(c) No
Conflicts . The execution, delivery and performance
by such Investor of this Amendment and the consummation by such
Investor of the transactions contemplated hereby will not (i)
result in a violation of the organizational documents of such
Investor or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Investor is a party, or (iii)
result in a violation of any law, rule, regulation, order,
judgment or decree (including fe
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