Group Seeking to Take Control of 75% of AIM
Board Failed to Properly Disclose Myriad Interconnections,
Understandings and Arrangements Among Its Members – Violating the
Company’s Bylaws and Preventing Shareholders from Being Able to
Make Fully Informed Decisions
Group’s Members Include the Same Troubling
Individuals Who Unsuccessfully Attempted to Take Over the AIM Board
in 2022
Campaign Appears Partially Designed to Force
AIM Shareholders to Foot the Bill for Activist Group’s Millions of
Dollars of Unpaid Expenses from Unsuccessful 2022 Campaign
Activist Group Not Entitled to Nominate Board
Candidates for AIM’s 2023 Annual Meeting
AIM ImmunoTech Inc. (NYSE American: AIM) (“AIM” or the
“Company”) today announced that, after careful deliberation, its
Board of Directors (the “Board”) unanimously concluded that the
notice (the “Notice”) submitted by Ted D. Kellner purporting to
nominate himself, Robert L. Chioini and Todd Deutsch for election
to the Company’s Board at the 2023 Annual Meeting of Stockholders
(the “2023 Annual Meeting”) fails to comply with the Company’s
Bylaws (the “Bylaws”) and is invalid.
In light of this conclusion, and given AIM’s nomination deadline
has passed, Kellner may not nominate any candidates for election to
the Board at the 2023 Annual Meeting. Accordingly, the Company will
not recognize the nominations of Chioini, Deutsch and Kellner, and
any proxies submitted or votes cast for the election of these
individuals will be disregarded.
A copy of AIM’s letter to Kellner detailing the deficiencies in
the Notice (the “Deficiency Letter”) will be filed with the U.S.
Securities and Exchange Commission (“SEC”) on Form 8-K today.
The 2022 Activism Group Campaign
Several individuals referenced in Kellner’s Notice – including
Jonathan T. Jorgl, Walter I. Lautz, Michael Rice, Franz N. Tudor
and Michael J. Xirinachs – together with Chioini, Deutsch and
Kellner (collectively, the “Activist Group” or the “Group”), have
been engaged in a multi-year effort to disrupt AIM’s business and
take over the Board. As a reminder, last year, the Group – with
Jorgl as the face of the effort – made a failed attempt to nominate
a control slate of director candidates at the Company’s 2022 Annual
Meeting of Stockholders (the “2022 Annual Meeting”). As was
confirmed in litigation last year, Tudor (and possibly other
members of the Activist Group) even used “burner” accounts with
fake names on retail stock message boards to disparage the Company
– apparently, in AIM’s view, to drive down its stock price – while
members of the Group were trading AIM stock. The Group also
attempted to conceal Tudor’s and Xirinachs’ significant roles in
orchestrating the effort to gain control of AIM’s Board. Tudor has
been convicted of insider trading and Xirinachs has recently pled
guilty to wire fraud.
Ahead of the 2022 Annual Meeting, the Board unanimously
determined that the Group’s director nominations did not comply
with AIM’s Bylaws and were invalid. After Jorgl, funded by Chioini
and Xirinachs, initiated litigation contesting the Board’s
determination, the Delaware Court of Chancery found in the
Company’s favor, denying Jorgl’s motion to require the Board to
accept his director nominations. In its ruling, the Court noted
that Jorgl failed to disclose arrangements and understandings among
the “web of individuals” behind the Group’s efforts and stated that
the evidence indicated that Jorgl’s nomination notice “was – at
best – misleading.”
The 2023 Activist Group Campaign
The Bylaws exist for the protection of all shareholders. They
require disclosures about nominating shareholders, director
candidates and related parties and arrangements so the Board can
assess nominations and make voting recommendations based on
complete, truthful information – allowing shareholders to make
well-informed choices about which nominees to support.
The Notice fails to satisfy many of these requirements. As
outlined in detail in the Deficiency Letter, among other items, the
Notice omits and misrepresents critical information about a range
of interconnections between, and agreements, arrangements and
understandings among, members of the Activist Group. In addition,
the Notice includes materially false information regarding the
nominees’ qualifications and experience, and fails to provide
material information including with respect to related parties,
ownership information, and other items required under the federal
proxy rules.
The Notice’s failures appear, in the Board’s view, designed to
mislead AIM’s shareholders and deprive them of information needed
to make fully informed decisions. In addition, the Notice reveals
that the Activist Group may have ulterior motives in their
nominations this year: Chioini and Xirinachs are jointly
responsible for litigation costs stemming from their attempted
proxy contest at the 2022 Annual Meeting and Jorgl’s unsuccessful
litigation and still owe the Group’s law firm (in addition to
certain other advisors) a net amount of $1.3 million out of their
$2 million bill, even as litigation expenses “continue to accrue.”
The Notice acknowledges that, if elected, Chioini will continue to
seek reimbursement of his and Xirinachs’ expenses from 2022 –
likely over $2 million – with AIM shareholders footing the
bill. The Notice also states that the Group would seek
reimbursement for its proxy fight efforts this time around as
well.
Thomas K. Equels, M.S., J.D., Executive Vice Chairman of the
Board, CEO & President, issued the following statement:
It is deeply troubling that this Activist
Group is again seeking to benefit itself at the expense of other
shareholders. This year’s Group is the same cast of characters who
tried and failed to seize control of the Board at the 2022 Annual
Meeting. Given the litany of disturbing facts that came to light
last year about its members, the Activist Group’s attempt at a
“round two” is utterly perplexing. The Group’s launching of another
costly and distracting proxy contest demonstrates that they do not
care about the best interests of all shareholders.
Based on the facts we have seen, we believe
that the Activist Group is motivated by its desire to force the
Company to reimburse its members for expenses. Put another way, the
Group is seemingly trying to gain control of the Board so it can
force AIM shareholders to pick up the entire multi-million-dollar
tab for its unsuccessful 2022 proxy contest and litigation, as well
as its 2023 campaign.
AIM remains dedicated to delivering value for shareholders and
to serving the patients for whom the Company is working to bring
new therapies to market to address a range of life-threatening
cancers and debilitating immune disorders and viral conditions
(including Long COVID) – most notably by repurposing its lead drug,
Ampligen. The Company is building on substantial momentum in recent
years, as well as its ability to accomplish the future clinical
milestones it expects to achieve during the remainder of 2023.
To that end, AIM has a focused Board whose members possess the
right mix of experience and expertise to effectively oversee the
Company and its strategy. In March 2023, the Company added Nancy
Bryan as an additional independent director. Ms. Bryan is a
pharmaceutical industry veteran who brings deep commercial,
marketing, business development and corporate finance expertise.
She complements the strong and relevant pharmaceutical, financial
and legal experience of AIM’s other directors. The Company
continues to seek an additional independent director who would add
diverse and independent perspectives to the Board.
AIM remains open to engaging constructively with all
shareholders and values their input. The Company’s recommended
slate of nominees for election to the Board at the Annual Meeting
will be included in proxy materials to be filed with the SEC.
Shareholders do not need to take any action at this time.
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 is a first-in-class investigational drug
called Ampligen® (rintatolimod), a dsRNA and highly selective TLR3
agonist immuno-modulator with broad spectrum activity in clinical
trials for globally important cancers, viral diseases and disorders
of the immune system.
For more information, please visit aimimmuno.com and connect
with the Company on Twitter, LinkedIn, and Facebook.
Cautionary Statement
This press release contains forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995
(the “PSLRA”). Words such as “may,” “will,” “expect,” “plan,”
“anticipate” and similar expressions (as well as other words or
expressions referencing future events or circumstances) are
intended to identify forward-looking statements. Many of these
forward-looking statements involve a number of risks and
uncertainties. 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 U.S. Securities
and Exchange Commission (the “SEC”). You are cautioned not to place
undue reliance on these forward-looking statements, which speak
only as of the date of this press release. Among other things, for
those statements, the Company claims the protection of safe harbor
for forward-looking statements contained in the PSLRA. The Company
does not undertake to update any of these forward-looking
statements to reflect events or circumstances that occur after the
date hereof.
Important Information
The Company intends to file with the SEC a proxy statement and
associated WHITE proxy card in connection with the
solicitation of proxies for the Company’s 2023 Annual Meeting.
Details concerning the nominees of the Company’s Board for election
at the 2023 Annual Meeting will be included in the Company’s proxy
statement. BEFORE MAKING ANY VOTING DECISION, INVESTORS AND
STOCKHOLDERS OF THE COMPANY ARE URGED TO READ ALL RELEVANT
DOCUMENTS FILED WITH OR FURNISHED TO THE SEC, INCLUDING THE
COMPANY’S PROXY STATEMENT AND ANY AMENDMENTS OR SUPPLEMENTS
THERETO, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION.
Investors and stockholders will be able to obtain a copy of the
Company’s proxy statement, any amendments or supplements thereto
and other documents filed by the Company free of charge from the
SEC’s website, www.sec.gov. Copies of these materials will also be
available free of charge on AIM’s Investor Relations website at
https://aimimmuno.com/sec-filings/.
Participants in the
Solicitation
The Company, its directors and certain of its executive officers
will be participants in the solicitation of proxies from
stockholders in respect of the 2023 Annual Meeting. Information
regarding the names of the Company’s directors and executive
officers and their respective interests in the Company by security
holdings or otherwise is set forth in the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2022, filed
with the SEC on March 31, 2023. To the extent holdings of such
participants in the Company’s securities have changed since the
amounts described in Form 10-K for the year ended December 31,
2022, such changes have been reflected on Initial Statements of
Beneficial Ownership on Form 3 or Statements of Change in Ownership
on Form 4 filed with the SEC. These documents can be obtained free
of charge from the sources indicated above. Additional information
regarding the identity of these participants in any proxy
solicitation and a description of their direct and indirect
interests, by security holdings or otherwise, will also be included
in any proxy statement and other relevant materials to be filed
with the SEC by the Company, if and when they become available.
View source
version on businesswire.com: https://www.businesswire.com/news/home/20230823213954/en/
JTC Team, LLC Jenene Thomas 833-475-8247 AIM@jtcir.com OR
Longacre Square Partners Joe Germani / Dan Zacchei
AIM@longacresquare.com
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