Securities Registration: Employee Benefit Plan (s-8)
August 03 2020 - 5:32PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on August 3, 2020
Registration
No. 333—
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
Under
the Securities Act of 1933
AIM
IMMUNOTECH INC.
(Exact
name of registrant as specified in its charter)
Delaware
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52-0845822
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(State
or jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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2117
SW Highway 484, Ocala FL 34473
(Address
of Principal Executive Offices)(Zip Code)
AIM
IMMUNOTECH INC. AMENDED AND RESTATED
2018
EQUITY INCENTIVE PLAN
(full
title of the plan)
Thomas
K. Equels, Chief Executive Officer
AIM
ImmunoTech Inc.
2117
SW Highway 484, Ocala FL 34473
(352)
448-7797
(Name,
Address & Telephone number, including area code, of agent for service)
Copies
to:
Richard
Feiner, Esq.
Silverman
Shin & Byrne PLLC
Wall
Street Plaza
88
Pine Street – 22nd Floor
New
York, New York 10005
(212)
779-8600
Fax
(917) 720-0863
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [X]
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards pursuant to Section 7(a)(2)(B) of the Securities Act. [ ]
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION
OF REGISTRATION FEE
Title
of Securities
to
be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering
Price Per
Share (6)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount of
Registration
Fee
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Shares of Common Stock, $.001 par value (including Series A Junior Participating
Preferred Stock Purchase Rights)(5)
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250,000
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(2)
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$
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2.79
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$
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697,500
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$
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90.54
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Shares of Common Stock, $.001 par value (including Series A Junior Participating Preferred Stock
Purchase Rights)(5)
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44,299
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(3)
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$
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2.79
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$
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123,594
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$
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16.04
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Shares of Common Stock, $.001 par value (including Series A Junior Participating
Preferred Stock Purchase Rights)(5)
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685,012
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(4)
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$
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2.79
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$
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1,911,183
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$
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248.07
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Total Registration Fee
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$
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354.65
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(1)
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
on Form S-8 (the “Registration Statement”) shall also cover any additional shares of the Registrant’s common
stock that become issuable under the AIM ImmunoTech Inc. Amended and Restated 2018 Equity Incentive Plan (the “2018 Plan”)
by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration
that increases the number of the Registrant’s outstanding shares of common stock.
(2)
Represents an additional 250,000 shares of the Registrant’s common stock available for issuance pursuant to awards under
the 2018 Plan effected when stockholders approved the amendment to the original 2018 Equity Incentive Plan.
(3)
Represents an automatic increase as of July 1, 2019 equal to 2% of the then issued and outstanding shares of the Registrant’s
common stock reserved for issuance pursuant to future awards under the 2018 Plan, which annual increase is provided for in the
2018 Plan.
(4)
Represents an automatic increase as of July 1, 2020 equal to 2% of the then issued and outstanding shares of the Registrant’s
common stock reserved for issuance pursuant to future awards under the 2018 Plan, which annual increase is provided for in the
2018 Plan.
(5)
This Registration Statement also relates to the rights to purchase shares of Series A Junior Participating Preferred Stock of
the Registrant, which are attached to all shares of Common Stock pursuant to the terms of the Registrant’s Amended and Restated
Rights Agreement dated November 14, 2017. Until the occurrence of prescribed events, the preferred share purchase rights are not
exercisable, are evidenced by the certificates for the Common Stock and will be transferred with and only with such Common Stock.
The preferred share purchase rights are appurtenant to and trade with the Common Stock and no separate consideration will be received
for the preferred share purchase rights. Therefore, the registration fee for the preferred shares purchase rights is included
in the fee for the Common Stock.
(6)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities
Act.
EXPLANATORY
NOTE
This
Registration Statement registers additional shares of common stock of AIM ImmunoTech Inc. (the “Company”) under the
Company’s Amended and Restated 2018 Equity Incentive Plan (the “2018 Plan”). Company stockholders approved a
250,000 share increase in the shares of common stock available under the 2018 Plan. In addition, the number of shares of the Company’s
common stock available for grant and issuance under the 2018 Plan is subject to an annual increase on July 1 of each calendar
year, by an amount equal to two percent (2%) of the then outstanding shares of the Company’s common stock (the “2018
Plan Evergreen Provision”). On July 1, 2019 and 2020, the number of shares of the Company’s common stock available
for grant and issuance under the 2018 Plan increased by 44,299 and 685,012 shares, respectively. This Registration Statement registers
the 250,000 share increase approved by stockohlders and such additional shares of the Company’s common stock which were
available for grant and issuance under the 2018 Plan pursuant to the 2018 Plan Evergreen Provision.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in
accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Registration Statement
on Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the AIM ImmunoTech
Inc. Amended and Restated 2018 Equity Incentive Plan covered by this Registration Statement as required by Rule 428(b) (1).
PART
II
INFORMATION
REQUIRED IN THE
REGISTRATION
STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the “SEC”):
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Our
Annual Report on Form 10-K for the year ended December 31, 2019;
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Our
quarterly report on Form 10-Q for the quarter ended March 31, 2020;
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Our
Current Reports on Form 8-K filed with the SEC on February 11, 2020, February 18, 2020, March 9, 2020, March 26, 2020, March
26, 2020, April 6, 2020, April 16, 2020, April 27, 2020, June 5, 2020, June 15, 2020, June 24, 2020, July 6, 2020,
July 9, 2020 and August 3, 2020;
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●
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A
description of the Rights to purchase shares of our Series A Junior Participating Preferred Stock, which are attached to all
shares of Common Stock, is contained in our registration statement on Form 8-A (SEC File No. 0-27072) filed on November 14,
2017, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and
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●
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The
description of the Registrant’s Common Stock contained in the Company’s Registration Statement on Form 8-A (SEC
File No. 001-13441) filed with the Commission on October 1, 1997, pursuant to Section 12(b) of the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
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All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of
this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates
that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however,
that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be
deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
As
permitted by Section 102 of the DGCL, we have adopted provisions in our certificate of incorporation and bylaws that limit or
eliminate the personal liability of our directors for a breach of their fiduciary duty of care as a director. The duty of care
generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all
material information reasonably available to them. Consequently, a director will not be personally liable to us or our stockholders
for monetary damages or breach of fiduciary duty as a director, except for liability for:
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any
breach of the director’s duty of loyalty to us or our stockholders;
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any
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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any
act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
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any
transaction from which the director derived an improper personal benefit.
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These
limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our certificate
of incorporation also authorizes us to indemnify our officers, directors and other agents to the fullest extent permitted under
Delaware law.
As
permitted by Section 145 of the DGCL, our bylaws provide that:
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we
may indemnify our directors, officers, employees and agents to the fullest extent permitted by the DGCL, subject to limited
exceptions;
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we
may advance expenses to our directors, officers, employees and agents in connection with a legal proceeding to the fullest
extent permitted by the DGCL, subject to limited exceptions; and
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the
rights provided in our bylaws are not exclusive.
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We
have purchased a policy of directors’ and officers’ liability insurance that insures our directors and officers against
the cost of defense, settlement or payment of a judgment in some circumstances.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
No.
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Description
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4.1
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The AIM ImmunoTech Inc. Amended and Restated 2018 Equity Incentive Plan.*
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4.2
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Specimen
certificate representing our Common Stock.(1)
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4.3
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Amended and Restated Rights Agreement, dated as of November 14, 2017, between the Company and American Stock Transfer & Trust Company LLC. The Amended and Restated Right Agreement includes the Form of Certificate of Designation, Preferences and Rights of the Series A Junior Participating Preferred Stock, the Form of Rights Certificate and the Summary of the Right to Purchase Preferred Stock. (2)
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5.1
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Opinion of Silverman Shin & Byrne PLLC, legal counsel.*
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23.1
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Consent of Morrison, Brown, Argiz & Farra, LLC *
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23.3
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Consent of Silverman Shin & Byrne PLLC, legal counsel (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included in Signature Pages to the Registration Statement on Form S-8).
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(1)
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Filed
with the Securities and Exchange Commission as an exhibit to the Company’s Registration Statement on Form S-1(No. 33-93314)
filed November 2, 1995 and is hereby incorporated by reference.
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(2)
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Filed
with the Securities and Exchange Commission on November 14, 2017 as an exhibit to the Company’s Registration Statement
on Form 8-A12B (No. 0-27072) and is hereby incorporated by reference.
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Item
9. Undertakings.
(a)
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20%
change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant, AIM ImmunoTech Inc., certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the city of Ocala, State of Florida, on the 3rd
day of August, 2020.
AIM
IMMUNOTECH INC.
(Registrant)
By:
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/s/Thomas
K. Equels
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Thomas K. Equels, Chief Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas K. Equels acting
alone, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person in
his name, place and stead, in any and all capacities, in connection with the Registrant’s Registration Statement on Form
S-8 under the Securities Act of 1933, including, without limiting the generality of the foregoing, to sign the Registration Statement
in the name and on behalf of the Registrant or on behalf of the undersigned as a director or officer of the Registrant, and any
and all amendments or supplements to the Registration Statement, including any and all stickers and post-effective amendments
to the Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission and any applicable securities exchange or securities self-regulatory body, granting unto
said attorney-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes or substitute, may lawfully do or cause
to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement on Form S-8 has been signed by the following persons
in the capacities indicated on the dates indicated.
Signature
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Title
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Date
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/s/
Thomas K. Equels
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Chief
Executive Officer
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Thomas
K. Equels
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(Principal
Executive) and Director
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August
3, 2020
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/s/
Ellen Lintal
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Chief
Financial Officer
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Ellen
Lintal
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(Chief
Accounting Officer)
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August
3, 2020
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/s/
William M. Mitchell
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William
M. Mitchell, M.D., Ph.D.
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Director
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August
3, 2020
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/s/
Stewart Appelrouth
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Stewart
Appelrouth
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Director
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August
3, 2020
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AIM
ImmunoTech Inc.
Form
S-8
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