Court Denies Jonathan Jorgl’s Request for
Preliminary Injunction; Finds that Jorgl Failed to Show Director
Nomination Notice Complied with AIM’s Bylaws and that Evidence
Suggests Notice was Misleading
Activist Group Cannot Nominate Directors to
AIM’s Board this Year, and Proxies and Votes in Favor of Activist
Group’s Nominees Will Be Disregarded
Company Urges Shareholders to Support Continued
Positive Momentum by Re-Electing the AIM Board at November 3, 2022
Annual Meeting
AIM ImmunoTech Inc. (NYSE: American AIM) (“AIM” or the
“Company”) today announced that the Delaware Court of Chancery has
denied Jonathan Jorgl’s motion for a mandatory preliminary
injunction that sought to require the AIM Board of Directors (the
“Board”) to accept his director nominations and include his
nominees on a universal proxy card for the upcoming Annual Meeting
of Shareholders (the “Annual Meeting”).
As previously announced, the Board unanimously determined that
Mr. Jorgl’s director nominations did not comply with AIM’s bylaws
and are invalid. The Court concluded Jorgl and his group “failed to
show that [Jorgl’s Nomination] Notice complied with the bylaws.” As
such, any director nominations made by Mr. Jorgl will be
disregarded, and no proxies or votes in favor of his purported
nominees will be recognized or tabulated at the Annual Meeting –
which will be held as planned on November 3, 2022.
In reaching its decision, the Court recognized that Jorgl’s
nomination notice failed to disclose arrangements and
understandings among a “web of individuals [working] together to
bring Jorgl’s nominations forward.”1 The Court noted the
following:2
- “Other than describing a potential agreement for Chioini and
Rice to reimburse certain costs, Jorgl did not mention any
arrangements or understandings with Tudor or Xirinachs in his
nomination notice… [T]he evidence put forward by [the Board]
indicates that Jorgl’s notice was—at best—misleading.”
- “The limited record before me, however, suggests that the
directors concluded a clandestine plan was afoot. I cannot
say that they were wrong or that they acted unreasonably.”
- “Equity cannot bless the perverse incentives that would be
created if nominating stockholders could avoid disclosure
requirements through purposeful ignorance.”
The Court’s ruling also supports AIM’s contention that the
Activist Group intended to hide its true backers, Franz Tudor and
Michael Xirinachs, both convicted criminals, as well as the
motivations of the Activist Group:3
- “The facts read like a game of telephone. Tudor,
desiring to take control of the board, asked Lautz to nominate
Chioini (and another individual). When Lautz failed, Tudor,
Chioini, and Xirinachs regrouped to find another stockholder to be
the public face of their effort. Chioini asked Rice to run
alongside him, and Rice asked Jorgl to become a stockholder. Jorgl
then bought shares and transferred them into record name with the
help of Xirinachs. Rice promised Jorgl he would not be on the hook
for any expenses, and Jorgl submitted his nomination notice to AIM.
Xirinachs and Chioini then formally engaged counsel and Xirinachs
officially agreed to provide funding.”
- Members of the Activist Group “engaged in advance planning
towards a common end: to find an AIM stockholder who would transfer
shares into record name and serve as the “face” of their
nomination. That stockholder was Jorgl.”
- “Jorgl first learned of AIM just days before buying stock
when his surfing buddy Michael Rice, who desired a seat on AIM’s
board, asked Jorgl to buy shares for the purpose of nominating
him.”
- “The evidence also indicates that Tudor’s and Xirinachs’s
actions went beyond loose discussions about the nominations. Their
actions appear purposefully directed toward a shared goal of taking
control of the Board. They were coordinated and constructed
over a period of weeks.”
- As to Xirinachs's plans for AIM, the Court noted that Xirinachs
referred to Jorgl’s slate as “our slate” and stated: “The way I
hope this all plays out is we get control of AIM . . . we
continue to look for opportunities to either acquire, (to spin off
at a later time), license technology, or possibly merger
with.”
Thomas K. Equels, M.S., J.D., Executive Vice Chairman of the
Board, CEO & President, commented:
“We are gratified by the Court’s decision and believe it is a
victory for all shareholders. The Court has vindicated the Board’s
determination that the Activist Group includes individuals with
deeply checkered pasts and was formed with the purpose of taking
over the Board while deliberately hiding the identities, criminal
records and motivations of those involved from the rest of our
shareholders.
We can now look ahead and focus on our strong momentum building
upon the positive results in published data from preeminent cancer
centers that we are now seeing from our clinical trials. We have
already made significant progress in recent years, and especially
over the past year and a half, repurposing our lead drug, Ampligen,
into oncology, and we see significant important opportunities and
milestones ahead.
We urge shareholders to vote on the Company’s WHITE proxy
card to re-elect AIM’s highly qualified directors and support our
ongoing progress. We will continue to operate in a manner that
protects the rights of all shareholders.”
A copy of the Court’s decision is available online at the
following address:
https://d2ghdaxqb194v2.cloudfront.net/2265/187973.pdf.
***
THE BOARD RECOMMENDS A VOTE “FOR ALL” OF THE BOARD’S NOMINEES (THOMAS K.
EQUELS, WILLIAM M. MITCHELL AND STEWART L. APPELROUTH) ON
PROPOSAL 1 USING THE WHITE PROXY
CARD.
If you have any
questions or need assistance voting, please contact the Company’s
proxy solicitor Morrow Sodali LLC (“Morrow Sodali”) using the below
information.
Morrow Sodali
509 Madison Avenue Suite 1206 New York, NY
10022
Banks and Brokers Call: (203) 658-9400
Shareholders Call Toll Free: (800) 662-5200 E-mail:
AIM@investor.morrowsodali.com
About AIM ImmunoTech Inc.
AIM ImmunoTech Inc. is an immuno-pharma company focused on the
research and development of therapeutics to treat multiple types of
cancers, immune disorders, and viral diseases, including COVID-19.
The Company’s lead product, Ampligen® (rintatolimod) is an
immuno-modulator with broad spectrum activity being developed for
globally important cancers, viral diseases and disorders of the
immune system.
Ampligen is currently being used as a monotherapy to treat
pancreatic cancer patients in an Early Access Program (EAP)
approved by the Inspectorate of Healthcare in the Netherlands at
Erasmus Medical Center and AIM has commenced a Phase 2 clinical
study in 2022. The Company also has multiple ongoing clinical
trials to evaluate Ampligen as a combinational therapy for the
treatment of a variety of solid tumor types both underway and
planned at major cancer research centers. Additionally, Ampligen is
approved in Argentina for the treatment of severe chronic fatigue
syndrome (CFS) and is currently being evaluated in many aspects of
SARS-CoV-2/COVID-19 myalgic encephalomyelitis/chronic fatigue
syndrome (ME/CFS) and Post COVID Conditions.
For more information, please visit aimimmuno.com and connect
with the Company on Twitter, LinkedIn, and Facebook.
Forward-Looking
Statements
This press release contains certain forward-looking statements
that involve risks, uncertainties and assumptions that are
difficult to predict. Words and expressions reflecting optimism,
satisfaction or disappointment with current prospects, as well as
words such as “believes,” “hopes,” “intends,” “estimates,”
“expects,” “projects,” “plans,” “anticipates” and variations
thereof, or the use of future tense, identify forward-looking
statements, but their absence does not mean that a statement is not
forward-looking. The Company’s forward-looking statements are not
guarantees of performance, and actual results could vary materially
from those contained in or expressed by such statements due to
risks, uncertainties and other factors. The Company urges investors
to consider specifically the various risk factors identified in its
most recent Form 10-K, and any risk factors or cautionary
statements included in any subsequent Form 10-Q or Form 8-K, filed
with the Securities and Exchange Commission. You are cautioned not
to place undue reliance on these forward-looking statements, which
speak only as of the date of this press release. Except as required
by law, the Company does not undertake any responsibility to update
any forward-looking statements to take into account events or
circumstances that occur after the date of this press release.
________
1 Emphasis added.
2 Emphasis added.
3 Emphasis added.
View source
version on businesswire.com: https://www.businesswire.com/news/home/20221031005228/en/
Investor Contacts:
JTC Team, LLC Jenene Thomas 833-475-8247 AIM@jtcir.com
OR
Morrow Sodali AIM@investor.MorrowSodali.com
Media Contact:
Longacre Square Partners Joe Germani / Dan Zacchei
jgermani@longacresquare.com / dzacchei@longacresquare.com
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