Additional Proxy Soliciting Materials (definitive) (defa14a)
October 31 2022 - 8:56AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
(Amendment
No. )
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as Permitted
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material under § 240.14a-12 |
AIM
ImmunoTech Inc.
(Name
of Registrant as Specified in its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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Fee paid previously with
preliminary materials |
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Fee computed on table in
exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11 |
Delaware
Court Rules in Favor of AIM ImmunoTech and Declines to Declare Activist Group’s Nominations Valid
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
OCALA,
Fla., October 31, 2022 — 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.” |
1
Emphasis added.
2
Emphasis added.
3
Emphasis added.
| ● | “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’ 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.
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.
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
On October 31, 2022, AIM
ImmunoTech Inc. (the “Company”) posted the below message on Stocktwits.com and Yahoo! Finance:
Delaware court rules in favor
of AIM and declines to declare Activist Group nominations valid. Read our press release here: https://www.businesswire.com/news/home/20221031005228/en/Delaware-Court-Rules-in-Favor-of-AIM-ImmunoTech-and-Declines-to-Declare-Activist-Group%E2%80%99s-Nominations-Valid
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