Delaware Court Rules in Favor of AIM ImmunoTech and Upholds Board’s Determination that Activist Group’s Nominations Are Invalid
30 December 2023 - 12:00AM
Business Wire
Court Finds Activist Group “Flouted” AIM’s
Bylaws by Failing to Provide Required Information
AIM Will Reconvene Annual Meeting Today and
then Adjourn Until January 5th
Any Proxies Submitted by Activist Group Will Be
Disregarded
AIM Urges Shareholders to Vote on the
WHITE Proxy Card “For All” Four Company Directors to
Support Company’s Positive Momentum and Protect Their
Investment
AIM ImmunoTech Inc. (NYSE American: AIM) (“AIM” or the
“Company”) today announced the Delaware Court of Chancery (the
“Court”) ruled that the nomination notice (the “Notice”) submitted
by a member of a group of individuals who are seeking to nominate
three candidates for election to AIM’s four-person Board of
Directors (the “Board”) (collectively, the “Activist Group”) was
properly rejected for being invalid under the Company’s Bylaws.
This ruling follows a trial held at the end of October in
connection with the Activist Group’s lawsuit against the
Company.
As a reminder, the AIM Board had unanimously determined that the
Activist Group’s nomination notice was invalid because it omitted
key information and included misleading information, ignoring what
the Company’s Bylaws require to be disclosed. In light of the
Court’s ruling, the Company will disregard the Activist Group’s
director nominations, and no proxies or votes in favor of their
three nominees will be recognized or tabulated at the 2023 Annual
Meeting of Stockholders (the “2023 Annual Meeting”).
In reaching its decision, the Court noted the following:1
- “… the Board acted reasonably and equitably in rejecting the
[nomination notice submitted by Ted D. Kellner]. It did not
breach its fiduciary duties in enforcing valid advance notice
bylaws. The plaintiff’s group—not the Board—are ‘the ones engaging
in manipulative conduct.’”
- “Ultimately, the nondisclosure of certain [arrangements,
agreements or understandings] is fatal to Kellner’s nomination
effort. After the [Jonathan] Jorgl litigation, Kellner,
[Robert] Chioini, [Todd] Deutsch and their counsel should have been
closely attuned to the importance of completely disclosing all
relevant arrangements and understandings. Still, they flouted
the Company’s advance notice requirements. Because of the
timing of Kellner’s submission—the night before the submission
deadline—there was no possibility of correcting any
deficiencies.”
- “The concealment of arrangements and understandings that go to
the heart of a nomination effort risks undermining the essential
disclosure function of advance notice bylaws. Directors and
stockholders would justifiably want to know whether a nomination is
part of a broader scheme. Such information was withheld from or
obfuscated in the Kellner Notice.”
Thomas K. Equels, M.S., J.D., Executive Vice Chairman of the
Board, CEO & President, stated:
“For the second year in a row, a group of interconnected
individuals with seemingly nefarious intentions has tried to take
over the AIM Board without paying other shareholders an appropriate
premium for that control. We are pleased that the Court has
validated the Board’s determination that the Activist Group omitted
and misrepresented critical information related to its members’
backgrounds and intentions for AIM. We believe this will protect
the best interests of shareholders as we position the Company to
capitalize on important upcoming clinical milestones. We look
forward to continuing to build on our significant momentum in
delivering life-saving treatments for unmet patient needs as well
as creating shareholder value.”
The Company will reconvene its 2023 Annual Meeting as planned
today at 11:00 a.m. Eastern Time, and will then adjourn
proceedings, without conducting any other business, until Friday,
January 5, 2024 at 11:00 a.m. Eastern Time to allow all parties
time to process the Court’s ruling before the business to come
before the 2023 Annual Meeting is conducted.
A copy of the Court’s ruling is available online at the
following address:
https://courts.delaware.gov/Opinions/Download.aspx?id=357400.
To learn more, visit: www.SafeguardAIM.com.
***
THE BOARD RECOMMENDS A VOTE “FOR ALL” OF OUR BOARD’S NOMINEES (STEWART L.
APPELROUTH, NANCY K. BRYAN, THOMAS K. EQUELS AND DR. WILLIAM M.
MITCHELL) ON PROPOSAL 1 USING THE WHITE PROXY CARD.
If you have any questions or require any
assistance in voting your shares, please contact our proxy
solicitor:
Morrow Sodali LLC 430 Park Avenue, 14th
Floor New York, NY 10022 Stockholders Call Toll Free: (800)
662-5200 Banks, Brokers, Trustees, and Other Nominees Call Collect:
(203) 658-9400 Email: 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 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.
Forward-Looking
Statements
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,” “continue,” “believe,” “potential,” “upcoming” and
other variations thereon 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.
1 Emphasis added.
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version on businesswire.com: https://www.businesswire.com/news/home/20231229723423/en/
Investors:
JTC Team, LLC Jenene Thomas 833-475-8247 AIM@jtcir.com
Media:
Longacre Square Partners Joe Germani / Miller Winston
AIM@longacresquare.com
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