AIM AIM ImmunoTech Inc

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Schedule 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3)

AIM IMMUNOTECH INC.

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

00901B105

(CUSIP Number)

Todd Deutsch

Ted D. Kellner

c/o Baker & Hostetler LLP

127 Public Square, Suite 2000

Cleveland, Ohio 44114

Attn: John J. Harrington

(216) 621-0200

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

January 3, 2024

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §240.13d-1(e), §240.13d-1(f) or §240.13d-1(g), check the following box:  ☐

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 00901B105

CUSIP No. 00901B105

SCHEDULE 13D

This Amendment No. 3 (“Amendment No. 3”) amends and supplements the Schedule 13D filed with the Securities and Exchange Commission on July 27, 2023 (the “Initial Schedule 13D” and together with Amendment No. 1 thereto filed on August 7, 2023, Amendment No. 2 thereto filed on August 28, 2023 and this Amendment No. 3, the “Schedule 13D”) by Todd Deutsch and Ted D. Kellner (the “Reporting Persons”) with respect to the Common Stock, par value $0.001 per share, of AIM ImmunoTech Inc. (the “Company”). Capitalized terms used herein and not otherwise defined in this Amendment No. 3 shall have the meanings set forth in the Schedule 13D. This Amendment No. 3 amends Item 4, 5, 6 and 7 to the extent set forth below.

Item 4. Purpose of the Transaction

Item 4 is hereby supplemented as follows:

On December 28, 2023, the Delaware Court of Chancery ruled in Mr. Kellner’s favor that four separate advance notice bylaw provisions adopted by the Company’s Board of Directors in March 2023 are invalid. However, despite this ruling, the Court went on to find that Mr. Kellner’s notice of nominations did not comply with certain of the Company’s remaining (or predecessor) advance notice provisions. The Reporting Persons disagree with the Court’s opinion on this latter finding as to numerous matters of fact and law and Mr. Kellner is seeking an expedited appeal and to enjoin the Company’s Annual Meeting pending such appeal. 

The Reporting Persons are attaching as exhibit hereto a copy of a press release that the Kellner Group issued on January 3, 2024 with respect to the foregoing.

The Reporting Persons do not intend in the near term to acquire additional shares of Common Stock or dispose of the shares of Common Stock they currently hold. However, the Reporting Persons will review their investments in the Company on a continuing basis and may in the future determine (1) to acquire additional securities of the Company (although they reiterate that it is not their intention, either alone or acting together with any other persons or group of persons, to acquire a control stake in the shares of Common Stock), (2) to dispose of all or a portion of the securities of the Company owned by them or (3) to take any other available course of action. Notwithstanding anything contained herein, the Reporting Persons specifically reserve the right to change their intention with respect to any or all of such matters. In reaching any decision as to its course of action (as well as to the specific elements thereof), the Reporting Persons currently expect that they would take into consideration a variety of factors, including, but not limited to, the following: the actions of the Company’s board and whether the Reporting Persons believe it is acting in the best interests of the Company’s stockholders; the Company’s business and prospects; other developments concerning the Company and its businesses generally; other business opportunities available to Company and the Reporting Persons; developments with respect to the businesses of the Reporting Persons; changes in law and government regulations; general economic conditions; and money and stock market conditions, including the market price of the securities of the Company.

Except as described in this Schedule 13D, the Reporting Persons do not have any present plans or proposals that relate to or would result in any of the actions described in clauses (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right to formulate plans and/or proposals and to take such actions with respect to their investment in the Company, including any or all of the actions set forth in clauses (a) through (j) of Item 4 of Schedule 13D.

Item 5. Interest in Securities of the Issuer

Item 5 is hereby supplemented as follows:

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 is hereby supplemented as follows:

The Group Agreement entered into by the Reporting Persons and Mr. Chioini on July 26, 2023 automatically expires by its terms at the completion of the Company’s Annual Meeting. On January 3, 2024, the parties amended the Group Agreement so that it does not automatically expire at the completion of the Company’s Annual Meeting, which is currently scheduled to be reconvened on January 5, 2024 absent an injunction pending Mr. Kellner’s appeal. A copy of the Amendment to the Group Agreement is attached as an exhibit hereto.

Item 7. Material to be Filed as Exhibits

Item 7 is hereby supplemented by adding the following exhibits:

SIGNATURES

After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned hereby certifies that the information set forth in this statement is true, complete and correct.

Date: January 3, 2024

Exhibit 1

Kellner Seeking Expedited Appeal of Delaware Court Finding that Nomination Notice was Properly Denied

Court Found that Several AIM Advance Notice Bylaws Are Invalid

January 3, 2024: Ted D. Kellner, Todd Deutsch and Robert L. Chioini (collectively, the “Kellner Group”) today issue the following statement in connection with their efforts to bring accountability to the entrenched, incumbent Board of Directors (the “Board”) of AIM Immunotech Inc. (NYSE American: AIM) and create value for stockholders.

On December 28, 2023, the Delaware Court of Chancery ruled in Mr. Kellner’s favor that four separate advance notice bylaw provisions adopted by the AIM Board in March 2023 are invalid. The invalidated provisions relate to the substantive topics of arrangements and understandings, prior relationships among the nominating stockholder or associated persons and nominees, ownership and other economic interests and known support. According to the Court, “these provisions seem designed to thwart an approaching proxy contest, entrench the incumbents, and remove any possibility of a contested election.” (emphasis added) The Court only addressed six directly challenged provisions and found four of those to be invalid, but noted that certain offending language appeared in numerous other provisions throughout the advance notice bylaws.

We believe this ruling is consistent with our view that the clear purpose of AIM’s advance notice bylaw amendments was to provide pretext to deny any nomination, no matter the disclosure provided, and it was inevitable that any nomination attempt would be denied.

However, despite this ruling, the Court went on to find that Mr. Kellner’s notice of nominations did not comply with certain remaining advance notice provisions that were not invalidated (or, in one case, a predecessor provision that the Court revived). The Kellner Group disagrees with the Court’s opinion on this finding as to numerous matters of fact and law and Mr. Kellner is seeking an expedited appeal and to enjoin the Annual Meeting pending such appeal.

As one of AIM’s largest stockholders, Mr. Kellner is pursuing this appeal to bring accountability to a Board that is committed to entrenching itself at all costs. We continue to believe that for AIM to have any chance of success, significant change in the Board is urgently needed. It is clear to us that stockholders have no faith in the incumbent Board’s abilities or motivations. It is also very clear to us that if the Board allowed a meaningful director election, stockholders would overwhelmingly vote for change.

Following the Delaware Court’s decision, AIM announced that it will disregard the Kellner Group’s nominations and that any proxies voted in favor of the Kellner Group nominees will not be recognized or tabulated at the Annual Meeting. If the Annual Meeting is not enjoined and goes forward as currently scheduled before the appeal is resolved, any stockholder that previously delivered a gold proxy card to the Kellner Group, and wishes to be represented at the Annual Meeting, should consult AIM’s proxy materials for information. Although stockholders would not be able to vote for the Kellner Group nominees at the Annual Meeting, stockholders would retain the ability to “withhold” their votes for the incumbent directors. Even if the Annual Meeting is not enjoined and goes forward as currently scheduled, Mr. Kellner intends to pursue his appeal and seek relief to allow for a stockholder vote on the Kellner Group nominees.

Contact:

Okapi Partners LLC

1212 Avenue of the Americas, 17th Floor,

New York, New York 10036

Stockholders may call toll-free: (844) 343-2623

Banks and brokers call: (212) 297-0720

Email: info@okapipartners.com

Important Information and Participants in the Solicitation

The Kellner Group has filed a definitive proxy statement and associated GOLD proxy card with the Securities and Exchange Commission (“SEC”) to be used to solicit votes for the election of its slate of highly-qualified director nominees at the upcoming annual meeting of stockholders of AIM. Details regarding the Kellner Group nominees are included in its proxy statement.

THE KELLNER GROUP STRONGLY ADVISES ALL STOCKHOLDERS OF AIM TO READ THE PROXY STATEMENT AND OTHER PROXY MATERIALS AS THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.

Information regarding the identity of participants in the Kellner Group’s solicitation, and their direct or indirect interests, by security holdings or otherwise, is set forth in the Kellner Group’s proxy statement. Stockholders can obtain a copy of the proxy statement, and any amendments or supplements thereto and other documents filed by the Kellner Group with the SEC for no charge at the SEC’s website at www.sec.gov. Copies will also be available at no charge at the following website: https://www.okapivote.com/AIM. Investors can also contact Okapi Partners LLC at the telephone number or email address set for the above.

Exhibit 2

Amendment to Group Agreement

THIS AMENDMENT, dated as of January 3, 2024 (the “Amendment”), to that certain AGREEMENT (the “Agreement”), dated as of July 26, 2023 (the “Effective Date”), is by and among Robert L. Chioini (“Chioini”), Todd Deutsch (“Deutsch”) and Ted D. Kellner (“Kellner”) (each, a “Party” and, collectively, the “Parties”). Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Agreement.

WHEREAS, the Parties entered into the Agreement for the purposes of making and advancing nominations (the “Nominations”) of directors at the next annual meeting of stockholders of AIM Immunotech Inc. (the “Company”) and soliciting proxies in support of the Nominations and to otherwise coordinate certain efforts with respect to the Company; and

WHEREAS, the Agreement expires by its terms at the completion of the next annual meeting of stockholders of the Company, which is currently scheduled to be reconvened on January 5, 2024, and the Parties desire to continue the Agreement in effect during the pendency of certain legal proceedings in the Delaware Court of Chancery and appeals thereof, unless the Agreement is otherwise terminated earlier.

NOW, THEREFORE, in consideration of the covenants and agreements set forth in the Agreement, and for other good and valuable consideration the receipt and sufficiency of which are acknowledged, and intending to be legally bound, the Parties agree as follows:

Section 6 of the Agreement is hereby replaced and superseded in its entirety to read as follows:

Termination. This Agreement will terminate at 11:59 p.m. (New York time) on the first anniversary of the Effective Date, or upon the earlier of the (i) mutual written agreement of the Parties; provided that if one Party provides the other Parties with written notice of its desire for mutual written termination of the Agreement, such other Parties’ consent to such mutual written termination shall not be unreasonably withheld, delayed or conditioned, or (ii) execution by each Party of a settlement or cooperation agreement with the Company. In the event of termination, the Parties shall cooperate to take such actions as may be necessary or required publicly to disclose such termination and/or the consequences thereof, including, without limitation, amending any prior filings under the Exchange Act concerning the Company, Company Securities and/or the relationship between the Parties. Sections 4 and 11 shall survive any termination of this Agreement.

[signature page follows]

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