SecProbe.io

CORRESP
1
filename1.htm

    650 Town Center
    Drive, 20th Floor

    Costa Mesa, California  92626-1925

    Tel: +1.714.540.1235  Fax:
    +1.714.755.8290

    www.lw.com

    FIRM / AFFILIATE OFFICES

 November 22, 2023
    Austin
    Milan

    Beijing
    Munich

    Boston
    New York

    Brussels
    Orange County

    Century City
    Paris

    Chicago
    Riyadh

    Dubai
    San Diego

    Düsseldorf
    San Francisco

    Frankfurt
    Seoul

    Hamburg
    Silicon Valley

    Hong Kong
    Singapore

    Houston
    Tel Aviv

    London
    Tokyo

    Los Angeles
    Washington, D.C.

    Madrid

VIA EDGAR

United States Securities and Exchange Commission

Division of Corporation Finance

Office of Life Sciences

100 F Street, N.E.

Washington, D.C. 20549-6010

Attention: Lauren Sprague Hamill

  Joe McCann

 Re: AEON Biopharma, Inc.

                                            Amendment No. 1 to the Registration Statement on Form S-1
Filed
                                            October 23, 2023

File No. 333-274094

Ladies and Gentlemen:

On
behalf of AEON Biopharma, Inc. (the “Company”), please find enclosed for submission with the Securities
and Exchange Commission (the “Commission”) a complete copy of Amendment No. 2 to the Company’s Registration
Statement on Form S-1 ( “Amendment No. 2”). The Company previously filed a Registration Statement
on Form S-1 with the Commission on August 18, 2023 (the “Original Filing”) and an Amendment
No. 1 to the Original Filing on October 23, 2023 (“Amendment No. 1”). Amendment No. 2 has
been revised to reflect the Company’s responses to the comment letter to Amendment No. 1 received on November 15, 2023
from the staff of the Commission (the “Staff”).

For
ease of review, we have set forth below each of the numbered comments of your letter in bold type followed by the Company’s responses
thereto. Unless otherwise indicated, capitalized terms used herein have the meanings assigned to them in Amendment No. 2
and all references to page numbers in such responses are to page numbers in Amendment No. 2.

November 22, 2023

Page 2

Cover Page

 1. Please revise your cover page and
                                            plan of distribution to identify each of (i) ACM ARRT J LLC and (ii) Polar
                                            Multi-Strategy Master Fund as underwriters. Refer to Section 2(a)(11) of the
                                            Securities Act.

Response:

The Company
respectfully acknowledges the Staff’s comment, but respectfully advises the Staff that the Subscribers believe that ACM ARRT J
LLC (“ACM ARRT J”) and Polar Multi-Strategy Master Fund (“Polar”, and collectively with ACM
ARRT J, the “Subscribers”) are not underwriters for the reasons set forth below.

Subscription Agreements

On June 29, 2023, the Company, when it was known as Priveterra Acquisition
Corp., and AEON Biopharma Sub, Inc. (f/k/a AEON Biopharma, Inc.) (“Old AEON”) entered into separate subscription agreements
(the “FPA Funding Amount Subscription Agreements”) with each of the Subscribers. Pursuant to the terms of the respective
FPA Funding Amount Subscription Agreements, the Subscribers purchased an aggregate of 6,275,000 shares of Priveterra’s Class A Common
Stock, par value $0.0001 per share (“Priveterra Class A Common Stock”), with Polar purchasing 3,175,000 shares of Priveterra
Class A Common Stock and ACM ARRT J purchasing 3,100,000 shares of Priveterra Class A Common Stock.

Each of the FPA Funding Amount Subscription Agreements contained representations
and warranties from the Subscribers. These representations and warranties included that each Subscriber (i) is a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)), an institutional
“accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act), or an “accredited
investor” (within the meaning of Rule 501(a) under the Securities Act), (ii) is acquiring the shares only for its own account and
not for the account of others, or if Subscriber is subscribing for the shares as a fiduciary or agent for one or more investor accounts,
each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited
investor” (within the meaning of Rule 501(a) under the Securities Act) and Subscriber has sole investment discretion with respect
to each such account, and the full power and authority to make the acknowledgements, representations and agreements therein on behalf
of each owner of each such account, and (iii) is not acquiring the shares with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act. Furthermore, each Subscriber acknowledged and agreed that the shares may not
be offered, resold, transferred, pledged or otherwise disposed of by such Subscriber absent an effective registration statement under
the Securities Act, except (i) to the Company or a subsidiary thereof, (ii) pursuant to an applicable exemption from the registration
requirements of the Securities Act, and, in each of clauses (i)-(ii), in accordance with any applicable securities laws of the states
and other jurisdictions of the United States, and that the shares will be subject to these securities law transfer restrictions, and as
a result of these transfer restrictions, such Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose
of the shares and may be required to bear the financial risk of an investment in the shares for an indefinite period of time. Each Subscriber
also acknowledged and agreed that the Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant
to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year following the filing of certain
required information with the Commission after the closing of the business combination between the Company and Old AEON (the “Closing”).
The FPA Funding Amount Subscription Agreements further obligated the Company to file a registration statement registering the resale of
the shares issued to each of the Subscribers pursuant to the terms of the FPA Funding Amount Subscription Agreements, with such registration
statement serving as a registration statement for the purposes of clause (ii) two sentences above. The pending registration statement
on Form S-1 that is the subject of this letter is the registration statement seeking to register the resale of the shares issued to each
of the Subscribers pursuant to the terms of the FPA Funding Amount Subscription Agreements.

November 22, 2023

Page 3

In accordance with the representations and warranties set forth in
the FPA Funding Amount Subscription Agreements, each of the Subscribers are not underwriters as such term is defined in Section 2(a)(11)
of the Securities Act, as neither of the Subscribers has purchased from the issuer with a view to, or offers or sells for the issuer in
connection with, the distribution of any security, or participates or has a direct or indirect participation in any such undertaking,
or participates or has a participation in the direct or indirect underwriting of any such undertaking. Furthermore, if the one-year time
period for Rule 144 to be available for a business combination involving a special purpose acquisition company had already occurred, then
Rule 144 would be available to determine that neither of the Subscribers is engaged in a distribution if such Subscriber were to make
sales of the shares, and that therefore, neither of the Subscribers is an underwriter. First, neither of the Subscribers is an affiliate
of the Company as such term is defined in Rule 144, as neither of the Subscribers is a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common control with, the Company. Second, neither of the Subscribers
has been an affiliate of the Company during the preceding three months, during which time the Company has been subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As such,
pursuant to Rule 144, to the extent that the Company has been current in the filing of all required reports under Section 13 or 15(d)
of the Exchange Act for the prior 12 months, which would be the case if Rule 144 were currently available, and at least 6 months’
time had elapsed since the time that the Subscribers acquired the shares, which would also be the case if Rule 144 were currently available,
each of the Subscribers would be able to avail themselves of the safe harbor to determine that they should not be deemed an underwriter.
That the Subscribers have requested that the Company register for resale the shares on a registration statement on Form S-1 prior to the
availability of Rule 144 should not lead to a different result as the Subscribers are not engaged in a distribution of the shares purchased
by each of them pursuant to the terms of the FPA Funding Amount Subscription Agreements.

Forward Purchase Agreements

In addition to
the FPA Funding Amount Subscription Agreements, on June 29, 2023, the Company and Old AEON entered into a Confirmation of an OTC Equity Prepaid Forward Transaction with each of the Subscribers (each Confirmation, a “Forward
Purchase Agreement”). Pursuant to the terms of each Forward Purchase Agreement, the Company has pre-paid each Subscriber
for the purchase from the Subscriber of such number of shares as is the subject of each Forward Purchase Agreement, with the
settlement of the forward purchase from the Subscriber to occur two years after the Closing, unless the time for settlement is
accelerated under the terms of the Forward Purchase Agreement. Furthermore, although these are forward purchase arrangements, rather
than a physical settlement in which the shares that are the subject of each Forward Purchase Agreement are delivered to the Company
by a Subscriber, each Forward Purchase Agreement provides that the Subscriber will cash settle the contractual obligation and
deliver a specified amount based upon the value of the shares following the settlement date under the Forward Purchase Agreement.
The settlement amounts payable under each Forward Purchase Agreement are not linked to the proceeds from any sales of shares or the
timing of any such sales. The Forward Purchase Agreements do not require that any sales be made by the Subscribers, including for
paying the cash settlement amount due at the end of the valuation period following the settlement date. Rather, whether sales of
shares are made at any time by either Subscriber and a Subscriber’s use of any such proceeds are subject to the sole
discretion of the Subscriber.

November 22, 2023

Page 4

Each Subscriber may, but is not obligated to, sell any shares that
it holds at its sole discretion in one or more transactions, public or private, with each Subscriber making all decisions about the timing,
size and prices of any such sales independent of the Company. Furthermore, any economic benefits from the sale of any shares of Common
Stock that a Subscriber may make would be solely for the benefit of such Subscriber, and the Company will not be entitled to receive any
of the proceeds of such sales. For these reasons, the Company respectfully submits that neither Subscriber is acting on behalf of the
Company to the extent that a Subscriber exercises its discretion to sell such shares that it may hold. There are precedent transactions
involving similar forward purchase agreement structures in which sales that are made by the holders of the shares, to the extent that
such shares are acquired as unrestricted shares that are tradable without restriction, are treated as exempt from registration under Section
5 pursuant to Section 4(a)(1) or 4(a)(3), as applicable, and no additional registration statement is required in connection with the making
of such sales. The Company believes that the same conclusion should apply here that the Forward Purchase Agreements in and of themselves
should not require a registration of shares in order for the Subscribers to be able to make sales at their individual discretion. Rather,
the only reason why any registration statement should be necessary is to the extent that the shares being sold are restricted securities
because such shares were acquired pursuant to the FPA Funding Amount Subscription Agreements (until Rule 144 or another exemption is available
as discussed above), since a resale registration statement would be necessary for a Subscriber to exercise its discretion and sell any
shares. However, the act of seeking to have a resale registration statement that can be used for making sales of restricted securities
should not give rise to a determination that a distribution is occurring or that the Subscribers are underwriters.

No-Action Letters

As further support for the position that the Subscribers are not underwriters,
please consider two interpretive no-action requests pertaining to dynamic hedging sales. In the first, Goldman Sachs & Co. (“Goldman”)
submitted an interpretive request to the Staff on October 6, 2003, related to the offer and sale of equity securities underlying a forward
or option-based contract registered under Section 5 of the Securities Act. This interpretive request and the Staff’s response to
the request, dated October 9, 2003, are referred to herein as the “2003 Registered Hedging Letter.” In the second,
Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Inc. (“Bank of America Merrill Lynch”) submitted an
interpretive request to the Staff on November 30, 2011, related to holders of “restricted securities,” which satisfy the holding
period required by Rule 144(d) under the Securities Act or affiliate of the issuer of the securities (i.e., a holder of “control
securities” eligible for resale pursuant to Rule 144) using forward or option-based derivative contracts to sell shares pursuant
to Rule 144. This interpretive request and the Staff’s response to this request, dated on December 1, 2011, are referred to herein
as the “2011 Rule 144 Hedging Letter.”

In the 2003 Registered Hedging Letter, Goldman contemplated a forward
or option-based contract with an issuer whereby it would purchase from the issuer shares that would be registered under Section 5 of the
Securities Act, but there were a maximum number of such shares that would be purchased from the issuer. Goldman also contemplated being
able to sell that maximum number of shares and deliver prospectuses in connection with such sales. However, Goldman also contemplated
that subsequent to the sale of the maximum number of shares, it could sell and purchase additional shares as dynamic adjustments to its
hedge position, and no prospectus would be delivered in connection with these sales. Goldman would conduct its dynamic hedging sale and
purchase activity in its sole discretion, making all decisions about the timing, size and prices of those sales and purchases independently
of the issuer. The terms of the contract with the issuer would not be based on the sales and purchase prices of any such dynamic hedging
transactions nor would the issuer have an economic interest in those sales and purchases. Based on the facts presented by Goldman, the
Staff expressed its views that the existence of a forward or option-based contract between an issuer and Goldman would not affect an exemption
otherwise available to Goldman from the registration requirement under the Securities Act for offers and sales of shares exceeding the
maximum number of shares purchased from the issuer in connection with its dynamic hedging activities relating to its exposure under the
contract assuming that shares from the issuer are not used to settle any suc