ex101amndmt.htm


    EXHIBIT
10.1

    


    AMENDMENT
NO. 1 TO CONVERTIBLE PROMISSORY NOTE

    


    This
Amendment
No. 1 to Convertible Promissory Note (this “Amendment”) is made and
entered into as of February 7, 2009, by and between Aeolus Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), and Elan Pharma
International Limited, an Irish private limited liability company (the “Holder”).

    


    RECITALS

    


    Whereas,
pursuant to that certain Termination, Exchange and Release Amendment, dated
February 7, 2007, by and among the Company, Elan International Services, Ltd.,
and the Holder, the Company issued to the Holder a convertible promissory note,
dated February 7, 2007, in the aggregate principal amount of $452,658.60 (the
“Promissory
Note”);

    


    Whereas,
pursuant to Section 2 of the Promissory Note, the entire outstanding principal
amount of the Promissory Note, together with the accrued and unpaid interest
thereon, will become due and payable on February 7, 2009;

    


    Whereas,
as of the date of this Amendment (the “Effective Date”), the
aggregate amount owed by the Company to the Holder under the Promissory Note is
$553,205.75 (the “Payment
Due”), consisting of $452,658.60 in principal and $100,547.15 in accrued
and unpaid interest;

    


    Whereas,
pursuant to Section 9(c) of the Promissory Note, the Promissory Note may
be amended upon written agreement of the Company and the Holder;
and

    


    Whereas,
the parties hereto wish to amend the Promissory Note, effective as of the
Effective Date, to provide that (i) the annual interest rate under the
Promissory Note, effective as of the Effective Date, shall increase from 10% to
11%, and (ii) the maturity date of the Promissory Note shall be extended from
February 7, 2009 to February 7, 2011.

    


    AGREEMENT

    


    In consideration of the mutual
agreements, covenants, promises and other representations set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and accepted, the parties hereby agree that, effective
as of the Effective Date, (i) commencing on the Effective Date, interest shall
accrue on the
principal then-outstanding under the Promissory Note at a rate of 11.0%,
compounded on a quarterly basis on each 90-day anniversary from and after the
Effective Date, and (ii) the Maturity Date (as defined in the Promissory Note)
shall be February 7, 2011. Except as modified by this Amendment, the Promissory
Note shall remain in full force and effect, and once this Amendment is executed
by each of the parties hereto, all references in the Promissory Note to “Note”
shall refer to the Promissory Note as amended by this
Amendment.


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
parties have each caused this Amendment to be executed as of the date first
written above.

    


    COMPANY:

    


    AEOLUS
PHARMACEUTICALS, INC.

    


    


    By:           /s/ Michael P. McManus    

    


    Name:                    _____Michael P.
McManus        

    


    Title:                     ______Chief Financial
Officer      

    


    


    HOLDER:

    


    ELAN
PHARMA INTERNATIONAL LIMITED

    


    


    By:           /s/ William F.
Daniel              


    


    Name:                      _____William F.
Daniel        

    


    Title:                      _______Director                   


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    [Signature
Page to Amendment No. 1]