Prospectus
Supplement
(to
Prospectus dated February 4, 2022) |
9,306,072
Shares of Common Stock |
Filed
Pursuant to Rule 424(b)(5)
Registration No. 333-283269
|
AIM
ImmunoTech Inc.
9,306,072
Shares
Common
Stock
This
prospectus relates to the resale from time to time of up to 9,306,072 shares of common stock, par value $0.001 per share (the “Common
Stock”), of AIM ImmunoTech Inc. issuable upon exercise of Class C common warrants to purchase an aggregate of up to 4,653,036 shares
of our Common Stock (the “C Warrants”) and Class D common warrants to purchase an aggregate of up to 4,653,036 shares of
our Common Stock (the “D Warrants”, and along with the C Warrants, the “Common Warrants”) purchased by the selling
stockholder identified in this prospectus (the “Selling Stockholder”), including its pledgees, assignees, donees, transferees
or their respective successors-in-interest in a private placement transaction that closed on October 1, 2024 (the “Private Placement”).
The shares of Common Stock issuable upon exercise of the Common Warrants are sometimes referred to as the “Common Warrant Shares.”
We
are filing the registration statement on Form S-1, of which this prospectus forms a part, to fulfill our contractual obligations with
the Selling Stockholder to provide for the resale by the Selling Stockholder of the shares of Common Stock offered hereby. See “Selling
Stockholder” beginning on page 6 of this prospectus for more information about the Selling Stockholder. The registration of the
shares of Common Stock to which this prospectus relates does not require the Selling Stockholder to sell any of its shares of our Common
Stock.
We
are not offering any shares of Common Stock under this prospectus and will not receive any proceeds from the sale or other disposition
of the shares of our Common Stock covered hereby. See “Use of Proceeds” beginning on page 3 of this prospectus.
The
Selling Stockholder identified in this prospectus, or its pledgees, assignees, donees, transferees or their respective successors-in-interest,
from time to time may offer and sell through public or private transactions at prevailing market prices, at prices related to prevailing
market prices or at privately negotiated prices the shares held by them directly or through underwriters, agents or broker-dealers on
terms to be determined at the time of sale, as described in more detail in this prospectus. See “Plan of Distribution” beginning
on page 7 of this prospectus for more information about how the Selling Stockholder may sell its shares of Common Stock. The Selling
Stockholder may be deemed an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended
(the “Securities Act”).
In
connection with the Private Placement, we have agreed, pursuant to a securities purchase agreement dated September 30, 2024 (the “Purchase
Agreement”) that we have entered into with the Selling Stockholder, to bear all of the expenses in connection with the registration
of the Common Warrant Shares pursuant to this prospectus. The Selling Stockholder will pay or assume all commissions, discounts, fees
of underwriters, agents, selling brokers or dealer managers and similar expenses, if any, attributable to its sales of the shares of
Common Stock.
Our
Common Stock is listed on the NYSE American under the symbol “AIM.” On December 3, 2024, the closing price of our Common
Stock on the NYSE American was $0.2061 per share.
Investing
in our Common Stock involves risks. You should review carefully the risks and uncertainties described under the heading “Risk
Factors” contained in this prospectus and under similar headings in the other documents that are incorporated by reference
into this prospectus, as described beginning on page 3 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. The securities are not being
offered in any jurisdiction where the offer is not permitted.
The
date of this prospectus is December 4, 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
You
should rely only on the information we have provided or incorporated by reference into this prospectus and any related free writing prospectus.
We have not authorized anyone to provide you with information different from that contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus. No dealer, salesperson or other person is authorized to give any information or to
represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus. You
must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the shares of Common Stock
offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information
in this prospectus or any related free writing prospectus is accurate only as of the date on the front of the document and that any information
we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of
delivery of this prospectus or any sale of a security.
This
prospectus and the documents incorporated by reference into this prospectus include statistical and other industry and market data that
we obtained from industry publications and research, surveys and studies conducted by AIM, by third parties, or by third parties in collaboration
with AIM. Industry publications and research, surveys and studies generally indicate that their information has been obtained from sources
believed to be reliable, although they do not guarantee the accuracy or completeness of such information. We believe that the data obtained
from these industry publications and research, surveys and studies are reliable. We are ultimately responsible for all disclosure included
in this prospectus.
The
Selling Stockholder is offering the shares of Common Stock only in jurisdictions where such issuances are permitted. The distribution
of this prospectus and the issuance of the shares of Common Stock in certain jurisdictions may be restricted by law. Persons outside
the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to,
the issuance of the shares and the distribution of this prospectus outside the United States. This prospectus does not constitute, and
may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, the shares of Common Stock offered by this
prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”),
under which the Selling Stockholder may offer from time-to-time securities described herein in one or more offerings. If required, each
time the Selling Stockholder offers shares, we will provide you with, in addition to this prospectus, a prospectus supplement that will
contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to that offering. We may also use a prospectus supplement and any related free
writing prospectus to add, update or change any of the information contained in this prospectus or in documents we have incorporated
by reference. This prospectus, together with any related free writing prospectuses and the documents incorporated by reference into this
prospectus, includes all material information relating to this offering. To the extent that any statement that we make in a prospectus
supplement is inconsistent with statements made in this prospectus, the statements made in this prospectus will be deemed modified or
superseded by those made in a prospectus supplement. Please carefully read both this prospectus and any prospectus supplement before
buying any of the securities offered.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the sections entitled
“Where You Can Find More Information” and “Incorporation of Certain Information By Reference.”
This
prospectus provides you with a general description of the shares of Common Stock the Selling Stockholder may offer. To the extent that
any statement made in an accompanying prospectus supplement is inconsistent with statements made in this prospectus, the statements made
in this prospectus will be deemed modified or superseded by those made in the accompanying prospectus supplement. You should read both
this prospectus and any accompanying prospectus supplement together with the additional information described under the section “Where
You Can Find More Information” included elsewhere in this prospectus.
Neither
we nor the Selling Stockholder has authorized anyone to provide you with information different from that contained in this prospectus,
any accompanying prospectus supplement or in any related free-writing prospectus filed by us with the SEC. Neither we nor the Selling
Stockholder takes any responsibility for, or provides any assurance as to the reliability of, any information other than the information
in this prospectus, any accompanying prospectus supplement or in any related free-writing prospectus filed by us with the SEC. This prospectus
and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other
than the securities described in this prospectus or any accompanying prospectus supplement or an offer to sell or the solicitation of
an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information
appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free-writing prospectus
is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed
materially since those dates.
Except
as otherwise indicated herein or as the context otherwise requires, references in this prospectus to “AIM,” “the Company,”
“we,” “us,” “our” and similar references refer to AIM ImmunoTech Inc., an entity incorporated under
the laws of the State of Delaware.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus includes “forward-looking statements”, as such term is used within the meaning of the Private Securities Litigation
Reform Act of 1995. These “forward-looking statements” are not based on historical fact and involve assessments of certain
risks, developments, and uncertainties in our business looking to the future. Such forward-looking statements can be identified by the
use of terminology such as “may”, “will”, “should”, “expect”, “anticipate”,
“estimate”, “intend”, “continue”, or “believe”, or the negatives or other variations
of these terms or comparable terminology. Forward- looking statements may include projections, forecasts, or estimates of future performance
and developments. Forward-looking statements contained in this prospectus are based upon assumptions and assessments that we believe
to be reasonable as of the date of this prospectus. Whether those assumptions and assessments will be realized will be determined by
future factors, developments, and events, which are difficult to predict and may be beyond our control. Actual results, factors, developments,
and events may differ materially from those we assumed and assessed. Risks, uncertainties, contingencies, and developments, including
those identified in the “Risk Factors” section of this prospectus and in our most recent Annual Report on Form 10-K, subsequent
Quarterly Reports on Form 10-Q and other filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), incorporated by reference herein, could cause our future operating
results to differ materially from those set forth in any forward-looking statement. There can be no assurance that any such forward-looking
statement, projection, forecast or estimate contained can be realized or that actual returns, results, or business prospects will not
differ materially from those set forth in any forward-looking statement. Given these uncertainties, readers are cautioned not to place
undue reliance on such forward-looking statements. We disclaim any obligation to update any such factors or to publicly announce the
results of any revisions to any of the forward-looking statements contained herein to reflect future results, events or developments.
PROSPECTUS
SUMMARY
This
summary contains basic information about us and this offering. Because it is a summary, it does not contain all of the information that
you should consider before deciding to invest in our securities. Before you decide to invest in our securities, you should read this
entire prospectus carefully, any related free writing prospectus that we have authorized for use in connection with the offering and
the documents incorporated by reference herein, including the information included under the heading titled “Risk Factors.”
Unless otherwise noted, all share and per share information relating to our Common Stock in this prospectus has been adjusted to reflect
the one-for-12 reverse stock split of our issued and outstanding shares of Common Stock effected on August 26, 2016 and the one-for-44
reverse stock split effected on June 10, 2019.
Our
Company
AIM
ImmunoTech Inc. and its subsidiaries are an immuno-pharma company headquartered in Ocala, Florida, and focused on the research and development
of therapeutics to treat multiple types of cancers, viral diseases and immune-deficiency disorders. We have established a strong foundation
of laboratory, pre-clinical and clinical data with respect to the development of nucleic acids and natural interferon to enhance the
natural antiviral defense system of the human body, and to aid the development of therapeutic products for the treatment of certain cancers
and chronic diseases.
Our
flagship products are Ampligen (rintatolimod) and Alferon N Injection (Interferon alfa). Ampligen is a double-stranded RNA (“dsRNA”)
molecule being developed for globally important cancers, viral diseases and disorders of the immune system. Ampligen has not been approved
by the Food and Drug Administration (the “FDA”) or marketed in the United States, but is approved for commercial sale in
the Argentine Republic for the treatment of severe Chronic Fatigue Syndrome (“CFS”).
We
are currently proceeding primarily in four areas:
| ● |
Conducting
clinical trials to evaluate the efficacy and safety of Ampligen for the treatment of pancreatic cancer. |
| ● |
Evaluating
Ampligen across multiple cancers as a potential therapy that modifies the tumor microenvironment with the goal of increasing anti-tumor
responses to checkpoint inhibitors. |
| ● |
Exploring
Ampligen’s antiviral activities and potential use as a prophylactic or treatment for existing viruses, new viruses and mutated
viruses thereof. |
| ● |
Evaluating
Ampligen as a treatment for myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”) and fatigue and/or the Post-COVID
condition of fatigue. |
We
are prioritizing activities in an order related to the stage of development, with those clinical activities such as pancreatic cancer,
ME/CFS and Post-COVID conditions having priority over antiviral experimentation. We intend that priority clinical work be conducted in
trials authorized by the FDA or European Medicines Agency (“EMA”), which trials support a potential future new drug application
(“NDA”). However, our antiviral experimentation is designed to accumulate additional preliminary data supporting their hypothesis
that Ampligen is a powerful, broad-spectrum prophylaxis and early-onset therapeutic that may confer enhanced immunity and cross-protection.
Accordingly, we will conduct antiviral programs in those venues most readily available and able to generate valid proof-of-concept data,
including foreign venues.
Corporate
Information
Our
primary executive offices are located at 2117 SW Highway 484, Ocala FL 34473 and our telephone number is (352) 448-7797. Additional information
can be found on our website, https://aimimmuno.com and in our periodic and current reports filed with the SEC. Copies of our current
and periodic reports filed with the SEC are available to the public on a website maintained by the SEC at www.sec.gov and on our website.
The information contained on, or that can be accessed through, our website is not part of this prospectus and should not be considered
as part of this prospectus or in deciding whether to purchase our securities. No portion of our website is incorporated by reference
into this prospectus.
Smaller
Reporting Company
We
are currently a “smaller reporting company,” meaning that we are not an investment company, an asset-backed issuer, or a
majority-owned subsidiary of a parent company that is not a smaller reporting company and have a public float of less than $250 million
or annual revenues of less than $100 million during the most recently completed fiscal year. As a result of being considered a “smaller
reporting company,” we will be entitled to certain exemptions regarding the disclosure that we are required to provide in our SEC
filings. Specifically, “smaller reporting companies” are able to provide simplified executive compensation disclosures in
their filings; are exempt from the provisions of Section 404(b) of Sarbanes-Oxley requiring that independent registered public accounting
firms provide an attestation report on the effectiveness of internal control over financial reporting; and have certain other decreased
disclosure obligations in their SEC filings, including, among other things, only being required to provide two years of audited financial
statements in annual reports. Decreased disclosures in our SEC filings due to our status as a “smaller reporting company”
may make it harder for investors to analyze our results of operations and financial prospects.
THE
OFFERING
Shares
of Common Stock offered by
the
Selling Stockholder |
|
9,306,072
shares of our Common Stock issuable upon the exercise of Common Warrants. |
| |
|
|
Common
Stock to be outstanding
after
this offering |
|
73,085,397
shares of Common Stock, assuming the exercise of all of the Common Warrants. |
| |
|
|
Registration
of the Common
Warrant
Shares |
|
Pursuant
to the terms of the Purchase Agreement, we agreed to file the registration statement, of which this prospectus forms a part, with
respect to the registration of the resale of the Common Warrant Shares as soon as practicable (and in any event within 45 calendar
days of the date of the Purchase Agreement), and to use commercially reasonable efforts to cause such registration statement to become
effective within 181 days following October 1, 2024, the closing date of the sale of the Common Warrants, and to keep such registration
statement effective at all times until no Purchaser owns any Common Warrants or Common Warrant Shares issuable upon exercise thereof. |
| |
|
|
| Use
of Proceeds |
|
The
Selling Stockholder will receive all of the proceeds of the sale of shares of Common Stock offered from time to time pursuant to
this prospectus. Accordingly, we will not receive any proceeds from the sale of shares of Common Stock that may be sold from time
to time pursuant to this prospectus; however, we will receive proceeds from any cash exercise of the Common Warrants. See “Use
of Proceeds.” We intend to use the proceeds from any cash exercise of the Common Warrants for general corporate purposes, including
using funds for working capital. |
| |
|
|
| Plan
of Distribution |
|
The
Selling Stockholder named in this prospectus, or its pledgees, donees, transferees, distributees, beneficiaries or other successors-in-interest,
may offer or sell the shares of Common Stock offered hereby from time to time through public or private transactions at prevailing
market prices, at prices related to prevailing market prices or at privately negotiated prices. The Selling Stockholder may also
resell the shares of Common Stock to or through underwriters, broker-dealers or agents, who may receive compensation in the form
of discounts, concessions or commissions. |
| |
|
|
| Risk
Factors |
|
See
“Risk Factors” beginning on page 3 of this prospectus and in the documents incorporated by reference in this prospectus
and the other information included in this prospectus for a discussion of factors you should carefully consider before investing
in our securities. |
| |
|
|
| NYSE
American trading symbol |
|
Our
Common Stock is listed on the NYSE American under the symbol “AIM.” |
The
number of shares of our Common Stock that will be outstanding immediately after this offering as shown above is based on 63,779,325
shares outstanding as of December 2, 2024 and excludes (vested and unvested):
| |
● |
118,500
shares of our Common Stock issuable upon exercise of outstanding options granted under our 2009 equity incentive plans at a weighted
average exercise price of $18.57 per share; and 2,814,142 shares of our Common Stock issuable upon exercise of outstanding options
granted under our 2018 equity incentive plans at a weighted average exercise price of $1.54 per share; |
| |
● |
1,474,482
shares of our Common Stock available for issuance or future grant pursuant to our equity incentive plan; |
| |
● |
11,281,916
shares of our Common Stock issuable upon exercise of outstanding warrants issued to the Selling Stockholder in a prior offering at
a weighted average exercise price of $0.363 per share; and |
| |
● |
360,000
shares of our Common Stock issuable upon exercise of outstanding options granted to Azenova. |
RISK
FACTORS
Investing
in our Common Stock involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this
prospectus and in the documents we incorporate by reference into this prospectus before you decide to purchase our shares of Common Stock.
In particular, you should carefully consider and evaluate the risks and uncertainties described under the heading “Risk Factors”
in our most recent Annual Report on Form 10-K, as updated by annual, quarterly and other reports and documents that we file with the
SEC and incorporate by reference into this prospectus, or any prospectus, which risks could materially and adversely affect our business,
results of operations and financial condition, which in turn could materially and adversely affect the value of the shares of our Common
Stock offered by this prospectus. Our business, financial condition, results of operations and prospects could be materially and adversely
affected by these risks. As a result, you could lose all or part of your investment.
USE
OF PROCEEDS
The
Selling Stockholder will receive all of the proceeds of the sale of shares of Common Stock offered from time to time pursuant to this
prospectus. Accordingly, we will not receive any proceeds from the sale of shares of Common Stock that may be sold from time to time
pursuant to this prospectus; however, we will receive proceeds from any cash exercise of the Common Warrants. If all of the Common Warrants
are exercised for cash, we will receive approximately $2,605,700 in gross proceeds. We intend to use the proceeds from any cash exercise
of the Common Warrants for general corporate purposes, including using funds for working capital.
We
will bear the out-of-pocket costs, expenses and fees incurred in connection with the registration of the Common Warrant Shares registered
hereby, which may be resold by the Selling Stockholder pursuant to this prospectus. Other than registration expenses, such as SEC fees
and legal and accounting expenses, which we will bear, the Selling Stockholder will bear any underwriting discounts, commissions, placement
agent fees or other similar expenses payable with respect to sales of the Common Warrant Shares.
DIVIDEND
POLICY
We
have not declared or paid dividends to holders of our Common Stock since inception and do not plan to pay cash dividends in the foreseeable
future to such Common Stockholders. We currently intend to retain earnings, if any, to finance our growth.
DETERMINATION
OF THE OFFERING PRICE
The
prices at which the shares of our Common Stock covered by this prospectus may actually be sold by the Selling Stockholder will be determined
by the prevailing public market price for shares of our Common Stock or by negotiations between the Selling Stockholder and the buyer
or buyers of our Common Stock in private transactions or as otherwise described in the section of this prospectus entitled “Plan
of Distribution.”
DESCRIPTION
OF CAPITAL STOCK
The
following summary description sets forth some of the general terms and provisions of our capital stock. Because this is a summary description,
it does not contain all of the information that may be important to you. For a more detailed description of our capital stock, you should
refer to the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”) and our Amended and
Restated Certificate of Incorporation, as amended (the “Charter”), and our Restated and Amended Bylaws (“Bylaws”).
Copies of our Charter and Bylaws are included as exhibits to the registration statement of which this prospectus forms a part.
Capital
Stock
We
have authorized 350,000,000 shares of Common Stock, $0.001 par value per share, and 5,000,000 shares of preferred stock, $0.01 par value.
As of December 2, 2024, there were 63,779,325 shares of Common Stock issued and outstanding, no shares of Series A Junior
Participating preferred stock issued or outstanding, no shares of Series B preferred stock issued or outstanding, and 118,500 shares
of our Common Stock issuable upon exercise of outstanding options granted under our 2009 equity incentive plans at a weighted average
exercise price of $18.57 per share, 2,814,142 shares of our Common Stock issuable upon exercise of outstanding options granted under
our 2018 equity incentive plans at a weighted average exercise price of $1.54 per share, 11,281,916 shares of our Common Stock issuable
upon exercise of outstanding warrants issued to the Selling Stockholder in a prior offering at a weighted average exercise price of $0.363
per share, 360,000 shares of our Common Stock issuable upon exercise of outstanding options granted to Azenova. The authorized and unissued
shares of Common Stock and the authorized and undesignated shares of preferred stock are available for issuance without further action
by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which our securities may
be listed. Unless approval of our stockholders is so required, our board of directors does not intend to seek stockholder approval for
the issuance and sale of our Common Stock or preferred stock.
Common
Stock
Holders
of our Common Stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and have no cumulative
voting rights. Holders of our Common Stock are entitled to receive ratably dividends as may be declared by our board of directors out
of funds legally available for that purpose, subject to any preferential dividend or other rights of any then outstanding preferred stock.
We have never paid cash dividends on our Common Stock and do not anticipate paying any cash dividends in the foreseeable future but intend
to retain our capital resources for reinvestment in our business. Any future disposition of dividends will be at the discretion of our
board of directors and will depend upon, among other things, our future earnings, operating and financial condition, capital requirements,
and other factors.
Holders
of our Common Stock do not have preemptive or conversion rights or other subscription rights. Upon liquidation, dissolution or winding-up,
holders of our Common Stock are entitled to share in all assets remaining after payment of all liabilities and the liquidation preferences
of any of our outstanding shares of preferred stock. The rights, preferences and privileges of holders of Common Stock are subject to
and may be adversely affected by the rights of the holders of shares of any series of our preferred stock that is currently outstanding
or that we may designate and issue in the future.
Except
as otherwise provided by law, our Charter and Bylaws, each as amended, in all matters other than the election of directors, the affirmative
vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders. In addition, except as otherwise provided by law, our Charter or our Bylaws,
directors are elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors.
Preferred
Stock
Holders
of our Series A Junior Participating preferred stock, if and when issued, will have the right to purchase from us shares of Common Stock
or Common Stock equivalents pursuant to the terms of the Third Amended and Restated Rights Agreement dated May 12, 2023.
Pursuant
to a February 2019 registration statement relating to a rights offering we distributed to our holders of Common Stock and to holders
of certain options and redeemable warrants as of February 14, 2019, at no charge, one non-transferable subscription right for each share
of Common Stock held or deemed held on the record date. Each right entitled the holder to purchase one unit, at a subscription price
of $1,000 per unit, consisting of one share of B Preferred and 114 warrants with an assumed exercise price of $8.80. The redeemable warrants
were exercisable for five years after the date of issuance. As of December 3, 2024, there were no warrants and no Series B Preferred
warrants outstanding related to the rights offering.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our Common Stock is Equiniti Trust Company.
Anti-Takeover
Effects of Provisions of Delaware Law, Our Charter, Our Bylaws and Our Stockholders’ Rights Plan
Delaware
Anti-Takeover Law
Section
203 of the Delaware General Corporation
We
are subject to Section 203 of the DGCL, which prohibits a Delaware corporation from engaging in any business combination with any interested
stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
| |
● |
before
such date, our board of directors of the corporation approved either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder; |
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|
|
| |
● |
upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining
the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by
persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
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|
|
| |
● |
on
or after such date, the business combination is approved by our board of directors and authorized at an annual or special meeting
of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that
is not owned by the interested stockholder. |
In
general, Section 203 defines business combination to include the following:
| |
● |
any
merger or consolidation involving the corporation and the interested stockholder; |
| |
● |
any
sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
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● |
subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder; |
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● |
any
transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series
of the corporation beneficially owned by the interested stockholder; or |
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● |
the
receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or
through the corporation. |
In
general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s affiliates
and associates, beneficially owns, or within three years before the time of determination of interested stockholder status did own, 15%
or more of the outstanding voting stock of the corporation. Prior to entry into the Purchase Agreement our board of directors approved
the issuance of Securities to the Selling Stockholder under the Purchase Agreement and related documents for purposes of Section 203.
Charter
and Bylaws
Our
Charter and/or Bylaws provide that:
| |
● |
our
Bylaws may be amended or repealed by our board of directors or our stockholders; |
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● |
our
board of directors will be authorized to issue, without stockholder approval, preferred stock, the rights of which will be determined
at the discretion of our board of directors and that, if issued, could operate as a “poison pill” to dilute the stock
ownership of a potential hostile acquirer to prevent an acquisition that our board of directors does not approve; |
| |
● |
our
stockholders do not have cumulative voting rights, and therefore our stockholders holding a majority of the shares of Common Stock
outstanding will be able to elect all of our directors; and |
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● |
our
stockholders must comply with advance notice provisions to bring business before or nominate directors for election at a stockholder
meeting. |
Stockholder
Rights Plan
On
November 19, 2002, our board of directors declared a dividend distribution of one Right for each outstanding share of Common Stock to
stockholders of record at the close of business on November 29, 2002 pursuant to our rights agreement (as subsequently amended and restated,
the “Rights Agreement”) between us and our Rights Agent. Each Right entitles the registered holder of one share of our Common
Stock to purchase from the Company a unit consisting of one one-hundredth of a share (a “Unit”) of Series A Junior Participating
Preferred Stock, par value $0.01 per share at a Purchase Price of $4.00 per Unit, subject to adjustment. All terms not specifically defined
herein have the definition set forth in the Rights Agreement. The description and terms of the Rights are set forth in the Rights Agreement.
Prior to entry into the Purchase Agreement, our board of directors exempted the Selling Stockholder and its Affiliates and Associates
from becoming Acquiring Persons under the rights plan created under the Rights Agreement by virtue of receiving Securities under the
Purchase Agreement and related documents or under any other agreement between the Company and the Selling Stockholder.
The
current Amended and Restated Rights Agreement is included as an exhibit to the Company’s Quarterly Report on Form 10-Q for the
period ended March 31, 2023 (File No. 001-27072) filed with the SEC on May, 15, 2023. Such Plan and the Rights are described In Part
II, ITEM 5: Other Information in the foregoing Report on Form 10-Q. All of the foregoing are incorporated by reference herein.
Potential
Effects of Authorized but Unissued Stock
We
have shares of Common Stock and preferred stock available for future issuance without stockholder approval. We may utilize these additional
shares for a variety of corporate purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions
or payment as a dividend on the capital stock.
The
existence of unissued and unreserved Common Stock and preferred stock may enable our board of directors to issue shares to persons friendly
to current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.
In addition, our board of directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred stock,
all to the fullest extent permissible under the DGCL and subject to any limitations set forth in our Certificate of Incorporation. The
purpose of authorizing our board of directors to issue preferred stock and to determine the rights and preferences applicable to such
preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while
providing desirable flexibility in connection with possible financings, acquisitions and other corporate purposes, could have the effect
of making it more difficult for a third-party to acquire, or could discourage a third-party from acquiring, a majority of our outstanding
voting stock.
DESCRIPTION
OF THE PRIVATE PLACEMENT
On
September 30, 2024, we entered into a Purchase Agreement with the Selling Stockholder as Purchaser, pursuant to which we issued to the
Selling Stockholder, (i) in a registered direct offering, 4,653,036 shares of our Common Stock (“Shares”) and (ii) in the
concurrent Private Placement, we issued the Common Warrants to purchase an aggregate of up to 9,306,072 Common Warrant Shares, each with
an exercise price of $0.28. Such registered direct offering and concurrent Private Placement are referred to herein as the “Transactions.”
The purchase price for Shares in the registered direct offering was $0.27 per Share.
We
received aggregate gross proceeds from the Transactions of approximately $1.26 million, before deducting fees to the Placement Agent
and other estimated offering expenses payable by us. The Shares were offered by us pursuant to a shelf registration statement on Form
S-3 (File No. 333-262280), which was declared effective on February 4, 2022. The Common Warrants and the Common Warrant Shares issued
in the Private Placement were not registered under the Securities Act. Rather the Common Warrants and the Common Warrant Shares were
issued pursuant to the exemption from registration provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder.
The C Warrants and D Warrants are not exercisable until December 3, 2024, and will expire, respectively, 24 months and five years and
six months after that date.
Exercise
Limitation. Selling Stockholder will not have the right to exercise any portion of the Common Warrants if it (together with its affiliates)
would beneficially own in excess of 4.99% of the number of shares of our Common Stock outstanding immediately after giving effect to
the exercise, as such percentage ownership is determined in accordance with the terms of such warrants. However, any holder may increase
or decrease such percentage, provided that any increase will not be effective until the 61st day after such election.
Exercise
Price Adjustment. The exercise price of the Common Warrants is subject to appropriate adjustment in the event of certain stock dividends
and distributions, stock splits, stock combinations, reclassifications or similar events affecting our Common Stock.
Exchange
Listing. There is no established trading market for Common Warrants and we do not expect a market to develop. In addition, we do
not intend to apply for the listing of the Common Warrants on any national securities exchange or other trading market.
Fundamental
Transactions. If a fundamental transaction occurs, then the successor entity will succeed to, and be substituted for us, and may
exercise every right and power that we may exercise and will assume all of our obligations under the Common Warrants with the same effect
as if such successor entity had been named in the warrant itself. If holders of our Common Stock are given a choice as to the securities,
cash or property to be received in a fundamental transaction, then the holder shall be given the same choice as to the consideration
it receives upon any exercise of the Common Warrants following such fundamental transaction. In addition, the successor entity, at the
request of warrant holders, will be obligated to purchase any unexercised portion of the Common Warrants in accordance with the terms
of such warrants. Notwithstanding the foregoing, in the event of a fundamental transaction, the holders of the Common Warrants have the
right to require us or a successor entity to redeem the common warrants for cash in the amount of the Black Scholes Value (as defined
in each warrant) of the unexercised portion of the common warrants concurrently with or within 30 days following the consummation of
a fundamental transaction.
Rights
as a Stockholder. Except as otherwise provided in the Common Warrants or by virtue of such Warrant holder’s ownership of shares
of our Common Stock, the holder of a Common Warrants will not have the rights or privileges of a holder of our Common Stock, including
any voting rights, until the holder exercises such warrant.
Resale/Registration
Rights. Pursuant to the Purchase Agreement and the Common Warrants, we have filed this Registration Statement. We are using commercially
reasonable efforts to cause the Registration Statement to become effective within 181 days following October 1, 2024 and to keep it effective
at all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof.
Maxim
Group LLC acted as the Placement Agent on a “reasonable best efforts” basis, in connection with the Transactions pursuant
to the Placement Agency Agreement by and between us and the Placement Agent. Pursuant to the Placement Agency Agreement, the Placement
Agent was paid a cash fee of 8% of the aggregate gross proceeds paid to us for the securities sold in the Transactions and reimbursement.
In addition, we have reimbursed the Placement Agent $65,000 for certain offering-related expenses.
SELLING
STOCKHOLDER
The
shares of our Common Stock being offered by the Selling Stockholder are those issuable to the Selling Stockholder upon exercise of the
Common Warrants. For additional information regarding the issuances of the Common Warrants and the Common Warrant Shares, see “Description
of the Private Placement” elsewhere in this prospectus. We are registering these shares of our Common Stock in order to permit
the Selling Stockholder to offer them for resale from time to time. Except for the ownership of shares of our Common Stock and the Common
Warrants purchased in the prior transaction and the Transactions, the Selling Stockholder has not had any material relationship with
us within the past three years.
The
following table sets forth certain information with respect to the Selling Stockholder, including (i) the number of shares of our Common
Stock beneficially owned by the Selling Stockholder, including and securities exercisable for shares of our Common Stock, prior to this
offering without regard to any beneficial ownership limitations contained in the Common Warrants (as specified below), (ii) the number
of shares of our Common Stock being offered by the Selling Stockholder pursuant to this prospectus and (iii) the Selling Stockholder’s
beneficial ownership after completion of this offering assuming the sale of all of the shares of our Common Stock covered by this prospectus
and the shares issuable upon exercise of the warrants issued in the prior offering to Armistice. The registration of the shares of our
Common Stock issuable to the Selling Stockholder upon the exercise of the Common Warrants does not necessarily mean that the Selling
Stockholder will sell all or any of such shares, but the number of shares and percentages set forth in the final two columns below assume
that all shares of our Common Stock being offered by the Selling Stockholder are sold.
The
table is based on information supplied to us by the Selling Stockholder, with beneficial ownership and percentage ownership determined
in accordance with the rules and regulations of the SEC and includes voting or investment power with respect to shares of stock. This
information does not necessarily indicate beneficial ownership for any other purpose. In computing the number of shares beneficially
owned by the Selling Stockholder and the percentage ownership of the Selling Stockholder, shares of our Common Stock subject to the Common
Warrants held by the Selling Stockholder that are exercisable within 60 days after October 1, 2024, are deemed outstanding. The percentage
of beneficial ownership after this offering is based on 63,779,325 shares of our Common Stock outstanding on December 2,
2024.
This
prospectus covers the resale of 9,306,072 shares of our Common Stock that may be sold or otherwise disposed of by the Selling Stockholder.
Such shares of our Common Stock are issuable to the Selling Stockholder upon the exercise of the Common Warrants. The C Warrants and
D Warrants are not exercisable until April 1, 2025, and will expire, respectively, on April 1, 2027 and April 1, 2030. The Common Warrants
have an exercise price of $0.28 per share. See “Description of the Private Placement” above for a more complete description
of the Common Warrants. Under the terms of the Common Warrants, the Selling Stockholder may not exercise the Common Warrants to the extent
such exercise would cause such Selling Stockholder, together with its affiliates and attribution parties, to beneficially own a number
of shares of Common Stock that would exceed 4.99%, as applicable, of our then outstanding Common Stock following such exercise, excluding
for purposes of such determination shares of Common Stock issuable upon exercise of such Common Warrants that have not been exercised.
The number of shares in the second and fourth columns do not reflect this limitation. The Selling Stockholder may sell all, some or none
of their shares in this offering. See “Plan of Distribution.”
| Name of Selling Stockholder | |
Number of Shares
of Common Stock
Beneficially
Owned Prior to
Offering(1) | | |
Maximum
Number of Shares
of Common Stock
offered for Resale in this
Offering | | |
Number of Shares
of Common Stock
Beneficially
Owned After
Offering | | |
Percentage
of Shares
Beneficially
Owned after
Offering(1) | |
| Armistice Capital, LLC(1)(2) | |
| 20,587,988 | | |
| 9,306,072 | | |
| 0 | | |
| 0 | % |
| (1) |
Consists
of (i) 9,306,072 Common Warrant Shares issuable upon the exercise of the Common Warrants and (ii) 11,281,916 shares issuable upon
the exercise of the common stock warrants issued in the prior offering to Armistice. All of the foregoing warrants are subject to
a beneficial ownership limitation of 4.99% of the number of shares of our Common Stock outstanding, which in each case restricts
the Selling Stockholder from exercising that portion of the warrants that would result in the Selling Stockholder and its affiliates
owning, after exercise, a number of shares of Common Stock in excess of the beneficial ownership limitation. The number of shares
set forth in the above table does not reflect the application of this limitation. |
| |
|
| (2) |
The
securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”),
and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager
of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The warrants are subject to a beneficial ownership
limitation of 4.99%, which such limitation restricts the Selling Stockholder from exercising that portion of the warrants that would
result in the Selling Stockholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the
beneficial ownership limitation. The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue,
7th Floor, New York, NY 10022. |
PLAN
OF DISTRIBUTION
The
Selling Stockholder of the securities and any of its pledgees, assignees and successors-in-interest may, from time to time, sell any
or all of their securities covered hereby on the NYSE American or any other stock exchange, market or trading facility on which the securities
are traded or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholder may use any one or more
of the following methods when selling securities:
| |
● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
|
|
| |
● |
block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction; |
| |
|
|
| |
● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| |
|
|
| |
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
| |
|
|
| |
● |
privately
negotiated transactions; |
| |
|
|
| |
● |
settlement
of short sales; |
| |
|
|
| |
● |
in
transactions through broker-dealers that agree with the Selling Stockholder to sell a specified number of such securities at a stipulated
price per security; |
| |
|
|
| |
● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| |
|
|
| |
● |
a
combination of any such methods of sale; or |
| |
|
|
| |
● |
any
other method permitted pursuant to applicable law. |
The
Selling Stockholder may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available,
rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholder may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholder (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the Selling Stockholder may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Stockholder may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholder may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholder and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed us that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
We
are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify
the Selling Stockholder against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholder
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect
or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar
effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholder will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common
Stock by the Selling Stockholder or any other person. We will make copies of this prospectus available to the Selling Stockholder and
have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
Silverman,
Shin & Schneider PLLC, New York, New York will pass upon the validity of the shares of our Common Stock being registered by the registration
statement of which this prospectus is a part.
EXPERTS
The
consolidated financial statements of AIM ImmunoTech, Inc. (the Company) as of December 31, 2023 and 2022 and for each of the two years
in the period ended December 31, 2023 incorporated by reference in this prospectus and in the registration statement have been so incorporated
in reliance upon the report of BDO USA, P.C., an independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference into this prospectus the information contained in other documents we file with the SEC, which
means that we can disclose important information to you by referring you to those documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded, for purposes
of this prospectus, to the extent that a statement contained in or omitted from this prospectus, or in any other subsequently filed document
that also is or is deemed to be incorporated by reference in this prospectus, 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 prospectus. We incorporate
by reference the documents listed below which have been filed by us and any future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed
on such form that are related to such items unless such Form 8-K expressly provides to the contrary) subsequent to the date of this prospectus
and before the termination or completion of the offering of the securities covered by this prospectus. We incorporate by reference into
this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we have
filed with the SEC (Commission File No. 001-27072):
| |
1. |
Our
Annual Report on Form 10-K for the year ended December 31, 2023; |
| |
2. |
Our
Quarterly Reports on Form 10-Q, for the fiscal quarters ended March 31, 2024, June 30, 2024 and September 30, 2024; |
| |
3. |
Our
Current Reports on Form 8-K, as filed with the SEC on January 10, 2024, January 10, 2024, January 25, 2024, February 9, 2024, .February 20, 2024, June 3, 2024, July 15, 2024, August 1, 2024, September 12, 2024, October 1, 2024 and November 27,2024. |
| |
4. |
Our
Definitive Proxy Statement on Schedule 14A filed with the SEC on November 4, 2024, and all Definitive Additional Materials filed
then and thereafter; and |
| |
5. |
The
description of the capital stock contained in our Registration Statement on Form S-1 (No. 333-280761) filed July 11, 2024 as updated
together with any subsequent amendment or report filed with the SEC for the purpose of updating this description. |
Any
statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed
document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You
may request, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such
exhibits are specifically incorporate by reference), by contacting AIM ImmunoTech Inc. at 2117 SW Highway 484, Ocala FL 34473, Attention:
Investor Relations, telephone No. (352) 448-7797. You may also access these documents on our website at https://aimimmuno.com/.
Information on our website, any subsection, page, or other subdivision of our website, or any website linked to by content on the website,
is not part of this prospectus and you should not rely on that information unless that information is also in this prospectus or incorporated
by reference in this prospectus.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act and in accordance therewith file reports, proxy statements and other
information with the SEC. Our filings are available to the public over the Internet at the SEC’s website at www.sec.gov,
as well as at our website at https://aimimmuno.com/. Information on our website, any subsection, page, or other subdivision
of our website, or any website linked to by content on the website, is not part of this prospectus and you should not rely on that information
unless that information is also in this prospectus or incorporated by reference in this prospectus.
9,306,072
Shares of Common Stock
AIM
ImmunoTech Inc.
PROSPECTUS
December
4, 2024
AIM ImmunoTech (AMEX:AIM)
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