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. )
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
☐ |
Preliminary
Proxy Statement |
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☐ |
Confidential,
for Use of the Commission Only (as Permitted by Rule 14a-6(e)(2)) |
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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)
Payment
of Filing Fee (Check all boxes that apply):
☒ |
No
fee required |
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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 |
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AIM
IMMUNOTECH INC.
2117
SW Highway 484
Ocala,
Florida 34473
(352)
448-7797 |
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NOTICE
OF 2022 ANNUAL MEETING OF STOCKHOLDERS
TO
BE HELD ON NOVEMBER 3, 2022
NOTICE
IS HEREBY GIVEN that the Annual Meeting of Stockholders of AIM ImmunoTech Inc. (the “Company” or “AIM”) will
be held on November 3, 2022, at 11:00 a.m., Eastern Daylight Time, at 2117 SW Highway 484, Ocala, Florida 34473 (including any
adjournments, postponements or continuations thereof, the “Annual Meeting”).
The
Annual Meeting will be held for the following purposes:
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1. |
To
elect three directors to the Company’s Board of Directors (the “Board”) to serve until the 2023 annual meeting
of the stockholders, until their successors are duly elected and qualified or until their earlier death, resignation or removal; |
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2. |
To
ratify the selection of BDO USA, LLP as the Company’s independent registered public accounting firm for the fiscal year ending
December 31, 2022; |
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3. |
To
approve, by non-binding vote, an advisory resolution on executive compensation; and |
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4. |
To
transact such other matters as may properly come before the Annual Meeting. |
Who
Can Vote: |
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Stockholders
of record at the close of business on September 9, 2022. |
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How
You Can Vote: |
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You
may cast your vote via mail, telephone or the Internet. Certain stockholders may only be able to vote by mail. You may also vote
at the Annual Meeting. |
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Who
May Attend: |
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All
stockholders are cordially invited to attend the Annual Meeting. |
Your
vote will be especially important this year. As you may be aware, Jonathan Thomas Jorgl (together, with the other participants in Mr.
Jorgl’s solicitation, the “Dissident Group”) submitted documents to the Company purporting to provide notice (the “Purported
Nomination Notice”) of Mr. Jorgl’s intent to nominate director candidates for election to the Board at the Annual Meeting.
The Company has informed the Dissident Group that the Purported Nomination Notice is invalid due to its failure to comply with the Company’s
Restated and Amended Bylaws. Mr. Jorgl has sued the Company and its directors in the Court of Chancery of the State of Delaware (the
“Delaware Chancery Court”), seeking, among other remedies, declaratory judgment that the Purported Nomination Notice was
valid. This case is pending, and the Delaware Chancery Court has scheduled a hearing on Mr. Jorgl’s motion for a preliminary injunction
for October 5, 2022.
Unless
the result of the litigation is that the Purported Nomination Notice is valid, 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. As
Mr. Jorgl’s nominations will not be recognized as valid nominations under Delaware law unless otherwise so determined by
a Delaware court, the WHITE proxy card accompanying this Proxy Statement does not include the names of Mr. Jorgl’s purported
nominees on a “universal proxy card.” However, if the result of the litigation is that the Purported Nomination Notice
is valid, then the Company will amend its proxy statement and the accompanying WHITE proxy card to reflect those developments
and to include the names of Mr. Jorgl’s nominees on a universal proxy card and mail the revised proxy statement and WHITE universal proxy card to stockholders. In addition, in
this scenario, no proxies or votes received on the Company’s previously circulated proxy card will be recognized or tabulated at
the Annual Meeting. Accordingly, if you vote on the Company’s WHITE proxy card accompanying this Proxy Statement and
the result of the litigation is that the Purported Nomination Notice is valid, your votes will not be recognized or tabulated, and you
will have to vote again for your vote to be counted.
Despite
the Board’s determination that the Purported Nomination Notice is invalid, you may receive solicitation materials from the Dissident
Group. OUR BOARD URGES YOU TO VOTE ONLY ON THE WHITE PROXY CARD FOR ALL OF OUR BOARD’S PROPOSED NOMINEES (THOMAS K. EQUELS,
WILLIAM M. MITCHELL AND STEWART L. APPELROUTH), TO DISREGARD ANY MATERIALS SENT TO YOU BY OR ON BEHALF OF THE DISSIDENT GROUP, AND NOT
TO SIGN, RETURN, OR VOTE ANY PROXY CARD SENT TO YOU BY OR ON BEHALF OF THE DISSIDENT GROUP. The Company is not responsible for the
accuracy of any information provided by the Dissident Group in solicitation materials filed or disseminated by or on behalf of the Dissident
Group or any other statements that the Dissident Group may make.
If
you vote, or have previously voted, using a proxy card sent to you by the Dissident Group, you can subsequently revoke that proxy by
following the instructions on the enclosed WHITE proxy card to vote over the Internet or by telephone or by completing, signing
and dating the WHITE proxy card and mailing it in the postage-paid envelope provided. Only your latest dated vote will count.
Any proxy may be revoked prior to its exercise at the Annual Meeting as described in the accompanying Proxy Statement.
A
list of stockholders entitled to vote at the Annual Meeting will be available for examination by any stockholder, for any purpose germane
to the Annual Meeting, at the Annual Meeting and for 10 days prior to the Annual Meeting during ordinary business hours at 2117 SW Highway
484, Ocala, Florida 34473, the Company’s principal place of business.
THE
BOARD RECOMMENDS VOTING “FOR ALL” OF THE BOARD’S NOMINEES (THOMAS K. EQUELS, WILLIAM M. MITCHELL AND STEWART
L. APPELROUTH) ON PROPOSAL 1,
“FOR” PROPOSAL 2 AND “FOR” PROPOSAL 3 USING THE ENCLOSED WHITE PROXY CARD.
THE
BOARD URGES YOU NOT TO SIGN, RETURN, OR VOTE USING
ANY PROXY CARD THAT MAY BE SENT TO YOU BY THE DISSIDENT GROUP.
Whether
or not you can attend the Annual Meeting, it is important that your shares be represented at the Annual Meeting. We encourage you to
please vote TODAY to ensure your voice is heard. You may vote by marking, signing and dating the enclosed WHITE proxy card
and returning it in the postage-paid envelope. Stockholders may also vote by telephone or via the Internet.
Regardless
of the number of shares of common stock of the Company that you own, your vote is important. Thank you for your continued support, interest
and investment in AIM ImmunoTech.
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By
Order of the Board of Directors |
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/s/
William M. Mitchell |
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William
M. Mitchell |
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Chairman
of the Board |
Ocala,
Florida
September
19, 2022
This
Notice of 2022 Annual Meeting of Stockholders and the accompanying Proxy Statement are first being made available to stockholders of
record as of September 9, 2022, on or about September 19, 2022.
If
you have any questions or require any assistance in voting your shares, please contact our proxy solicitor:
Morrow
Sodali LLC
509
Madison Avenue Suite 1206
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
Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting
to
Be Held at 11:00 a.m., Eastern Daylight Time, on November 3, 2022.
The
Notice of 2022 Annual Meeting of Stockholders, the Proxy Statement, the Accompanying WHITE Proxy Card, and the Company’s
Annual Report on Form 10-K are available at https://aimimmuno.com/stockholder-meeting/.
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EXPLANATORY
NOTE
AIM ImmunoTech Inc. (the “Company” or “AIM”) is a “smaller reporting company,” as defined by Item
10 of Regulation S-K promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and has elected
to provide in this Proxy Statement certain scaled disclosures permitted under the Exchange Act for smaller reporting companies. Under
the scaled disclosure obligations, the Company is not required to provide, among other things, a Compensation Discussion and Analysis,
a compensation committee report and certain other tabular and narrative disclosures relating to executive compensation.
AIM
IMMUNOTECH INC.
2117
SW Highway 484
Ocala,
FL 34473
INTRODUCTION
This
proxy statement (including all appendices attached hereto, this “Proxy Statement”) is furnished to stockholders in connection
with the solicitation of proxies by the Board of Directors (the “Board” or the “Board of Directors”) of AIM ImmunoTech
Inc. (“AIM,” the “Company,” “we” or “us”) for use at the Company’s 2022 Annual
Meeting of Stockholders (including any adjournments, postponements or continuations thereof, the “Annual Meeting”).
PROXY
STATEMENT SUMMARY
This
summary highlights information contained elsewhere in this Proxy Statement, including under “Executive Compensation.” References
to “2021,” “2020,” “2019” and the like refer to the fiscal year ending, or ended, on December 31
of that year. As this summary does not contain all of the information that you should consider, we encourage you to carefully read the
entire Proxy Statement for more information before voting.
THE
ANNUAL MEETING
2022
Annual Meeting of Stockholders
Time
and Date: |
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On
November 3, 2022, at 11:00 a.m., Eastern Daylight Time. |
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Place: |
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2117
SW Highway 484, Ocala, Florida 34473. |
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Record
Date: |
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The
close of business on September 9, 2022 (the “Record Date”). |
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Proxy
Materials: |
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The
Notice of 2022 Annual Meeting of Stockholders, this Proxy Statement, the accompanying WHITE proxy card, and the
Company’s Annual Report on Form 10-K are first being sent to stockholders of record as of the Record Date on or about
September 19, 2022. |
Proposals
and Board Recommendations for Voting
PROPOSAL |
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RECOMMENDATION
ON THE WHITE PROXY CARD |
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PAGE |
Proposal
1 – Election of three directors to serve on the Board of Directors until the 2023 Annual Meeting of Stockholders, until
their successors are duly elected and qualified or until their earlier death, resignation or removal |
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FOR
ALL |
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27 |
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Proposal
2 – Ratification, on an advisory (non-binding) basis, of the selection of BDO USA, LLP as our independent registered public
accounting firm for the fiscal year ending December 31, 2022 |
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FOR |
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30 |
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Proposal
3 – Approval, on an advisory (non-binding) basis, of our named executive officer compensation |
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FOR |
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31 |
Your
vote will be especially important this year. You may also receive solicitation materials from Jonathan Jorgl (together, with the
other participants in Mr. Jorgl’s solicitation, the “Dissident Group”). The Company is not responsible for the accuracy
of any information provided by the Dissident Group in solicitation materials filed or disseminated by or on behalf of the Dissident Group
or any other statements that the Dissident Group may make.
As
you may be aware, the Dissident Group submitted documents to the Company purporting to provide notice (the “Purported Nomination
Notice”) of Mr. Jorgl’s intent to nominate directors candidates for election to the Board at the Annual Meeting. The Company
has informed the Dissident Group that the Purported Nomination Notice is invalid due to its failure to comply with the Company’s
Restated and Amended Bylaws (the “Bylaws”). Mr. Jorgl has sued the Company and its directors in the Court of Chancery of
the State of Delaware (the “Delaware Chancery Court”), seeking, among other remedies, declaratory judgment that the Purported
Nomination Notice was valid. The case is pending, and the Delaware Chancery Court has scheduled a hearing on Mr. Jorgl’s motion
for a preliminary injunction for October 5, 2022.
Unless
the result of the litigation is that the Purported Nomination Notice is valid, 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. As
Mr. Jorgl’s nominations will not be recognized as valid nominations under Delaware law unless otherwise so determined by
a Delaware court, the WHITE proxy card accompanying this Proxy Statement does not include the names of Mr. Jorgl’s purported
nominees on a “universal proxy card.” However, if the result of the litigation is that the Purported Nomination Notice
is valid, then the Company will amend this Proxy Statement and the accompanying WHITE proxy card to reflect those developments
and to include the names of the purported dissident nominees on a universal proxy card and mail the revised proxy statement and WHITE universal proxy card to stockholders. In addition, in
this scenario, no proxies or votes received on the Company’s previously circulated proxy card will be recognized or tabulated at
the Annual Meeting. Accordingly, if you vote on the Company’s WHITE proxy card accompanying this Proxy Statement and
the result of the litigation is that the Purported Nomination Notice is valid, your votes will not be recognized or tabulated, and you
will have to vote again for your vote to be counted.
OUR
BOARD DOES NOT ENDORSE ANY OF MR. JORGL’S PURPORTED NOMINEES AND URGES YOU TO DISREGARD ANY MATERIALS SENT TO YOU BY OR
ON BEHALF OF THE DISSIDENT GROUP AND NOT TO SIGN, RETURN OR VOTE ANY PROXY CARD SENT TO YOU BY OR ON BEHALF OF THE DISSIDENT GROUP.
If
you vote, or have previously voted, using a proxy card sent to you by the Dissident Group, you can subsequently revoke that proxy by
following the instructions on the enclosed WHITE proxy card to vote over the Internet or by telephone or by completing, signing
and dating the WHITE proxy card and mailing it in the postage-paid envelope provided. Only your latest dated vote will count.
Any proxy may be revoked prior to its exercise at the Annual Meeting as described in the accompanying Proxy Statement.
WE
URGE YOU TO COMPLETE, DATE, AND SIGN THE ENCLOSED WHITE PROXY CARD AND MAIL IT PROMPTLY IN THE POSTAGE-PAID ENVELOPE PROVIDED,
OR VOTE BY TELEPHONE OR THE INTERNET AS INSTRUCTED ON THE WHITE PROXY CARD, WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING.
THE
BOARD RECOMMENDS A VOTE “FOR ALL” OF OUR BOARD’S NOMINEES
(THOMAS K. EQUELS, WILLIAM M. MITCHELL AND STEWART L. APPELROUTH)
ON PROPOSAL 1 USING THE ENCLOSED WHITE PROXY CARD.
For
more information and up-to-date postings, please go to www.aimimmuno.com. Information on our website is not, and will not be deemed to
be, a part of this Proxy Statement or incorporated into any of our other filings with the SEC. If you need assistance with voting or
have any questions, please contact Morrow Sodali LLC, our proxy solicitor assisting us in connection with the Annual Meeting. Stockholders
may call toll free at (800) 662-5200. Banks and brokers may call collect at (203) 658-9400.
YOUR
VOTE IS VERY IMPORTANT. Whether or not you plan to attend the Annual Meeting, we encourage you to vote as soon as possible so that
your shares are represented. We urge you to vote TODAY by completing, signing and dating the enclosed WHITE proxy card
and promptly mailing it in the postage pre-paid envelope provided or following the instructions on the enclosed WHITE proxy card
to vote via the Internet or by telephone. Returning your WHITE proxy card will not prevent you from voting at the Annual Meeting
but will ensure that your vote is counted if you are unable to attend.
QUESTIONS
AND ANSWERS ABOUT THE ANNUAL MEETING AND VOTING
Why
am I receiving these proxy materials?
You
received these proxy materials because you are a stockholder of the Company. The Board is providing these proxy materials to you in
connection with the Company’s Annual Meeting to be held on November 3, 2022, at 11:00 a.m. Eastern Daylight Time, at 2117 SW
Highway 484, Ocala, Florida 34473. These materials were first sent or made available to stockholders on or about September 19, 2022,
by mail. You are invited to attend the Annual Meeting and are requested to vote on the proposals described in this Proxy
Statement.
These
materials also include a WHITE voting instruction form or WHITE proxy card for the Annual Meeting. WHITE voting
instruction forms and WHITE proxy cards are being solicited on behalf of the Board. The Company’s proxy materials include
detailed information about the matters that will be discussed and voted on at the Annual Meeting and provide updated information about
the Company that you should consider in order to make an informed decision when voting your shares.
When
and where will the Annual Meeting be held?
The
Annual Meeting is scheduled to be held at 11:00 a.m., Eastern Daylight Time, on November 3, 2022, at the Company’s offices located
at 2117 SW Highway 484, Ocala, Florida 34473. Attendance at the Annual Meeting will be limited to stockholders as of the Record Date,
their authorized representatives, and guests of the Company. Access to the Annual Meeting may be granted to others at the discretion
of the Company and the chair of the Annual Meeting. In accordance with the Company’s security procedures, all persons attending
the Annual Meeting must present picture identification along with proof of ownership. If you are a stockholder of record, please be prepared
to provide the top portion of your WHITE proxy card. If you hold your shares in “street name,” you will need to provide
proof of ownership, such as a recent account statement or letter from your broker. Cameras and recording devices will not be permitted
at the Annual Meeting. Even if you plan to attend the Annual Meeting, we strongly urge you to vote in advance by completing, signing,
and dating the enclosed WHITE voting instruction form or WHITE proxy card and returning it in the postage-paid envelope
provided or by voting via the Internet or by telephone, as soon as possible.
What
is a proxy?
A
proxy is your legal designation of another person (your “proxy”) to vote the shares of common stock you own at the Annual
Meeting. By completing and returning the proxy card(s), which identify the individuals or trustees authorized to act as your proxy, you
are giving each of those individuals authority to vote your shares of common stock as you have instructed. By voting via proxy, each
stockholder is able to cast his or her vote without having to attend the Annual Meeting.
Why
did I receive more than one proxy card?
You
will receive multiple proxy cards if you hold your shares of common stock in different ways (e.g., different names, trusts, custodial
accounts, joint tenancy) or in multiple accounts. If your shares of common stock are held by a broker or bank (i.e., in “street
name”), you will receive your proxy card and other voting information directly from your brokerage firm, bank, trust, or other
nominee. It is important that you complete, sign, date and return each WHITE proxy card you receive, or vote using the telephone,
or by using the Internet as described in the instructions included with your WHITE proxy card(s). You also may receive materials,
including a proxy statement and proxy card from Mr. Jorgl and the other members of the Dissident Group.
Why
might I be receiving proxy materials from Mr. Jorgl and the Dissident Group?
As
further described in the “Background of the Solicitation” section of this Proxy Statement, on July 8, 2022, Mr. Jorgl submitted
the Purported Nomination Notice on behalf of the Dissident Group. The Purported Nomination Notice purported to provide the Company notice
of Mr. Jorgl’s intent to nominate director candidates for election to the Board at the Annual Meeting.
The
Company has informed the Dissident Group that the Purported Nomination Notice is invalid due to its failure to comply with the Bylaws.
Mr. Jorgl has sued the Company and its directors in the Delaware Chancery Court, seeking, among other remedies, declaratory judgment
that the Purported Nomination Notice was valid. The case is pending, and the Delaware Chancery Court has scheduled a hearing on Mr. Jorgl’s
motion for a preliminary injunction for October 5, 2022.
Unless
the result of the litigation is that the Purported Nomination Notice is valid, 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. Nonetheless,
you may receive proxy solicitation materials from, or on behalf of, Mr. Jorgl and the other members of the Dissident Group, including
opposition proxy statements and proxy cards. As Mr. Jorgl’s nominations will not be recognized as valid nominations
under Delaware law unless otherwise so determined by a Delaware court, the WHITE proxy card accompanying this Proxy Statement
does not include the names of Mr. Jorgl’s purported nominees on a “universal proxy card.” However, if the result of
the litigation is that the Purported Nomination Notice is valid, then the Company will amend this Proxy Statement and the accompanying
WHITE proxy card to reflect those developments and to include the names of the purported dissident nominees on a universal proxy
card and mail the revised proxy statement and WHITE universal proxy card to stockholders. In addition, in
this scenario, no proxies or votes received on the Company’s previously circulated proxy card will be recognized or tabulated at
the Annual Meeting. Accordingly, if you vote on the Company’s WHITE proxy card accompanying this Proxy Statement and
the result of the litigation is that the Purported Nomination Notice is valid, your votes will not be recognized or tabulated, and you
will have to vote again for your vote to be counted.
We
strongly urge you NOT to sign or return any proxy cards sent by or on behalf of the Dissident Group even if the Dissident Group’s
proxy card provides an option to vote for the Board’s nominees. If you have already voted using a proxy card sent to you by
the Dissident Group, you can revoke it by (1) executing and delivering the enclosed WHITE proxy card, voting over the Internet
using the Internet address on the enclosed WHITE proxy card or voting by telephone using the toll-free number on the enclosed
WHITE proxy card or (2) voting in person at the Annual Meeting. Only your last-dated proxy submitted will count, and any proxy
may be revoked at any time prior to its exercise at the Annual Meeting.
What
should I do if I receive a proxy card or other proxy materials from the Dissident Group?
As
noted above, the Company has informed Mr. Jorgl and the Dissident Group that the Purported Nomination Notice is invalid due to its
failure to comply with the Bylaws. Unless the result of the litigation is that the Purported Nomination Notice is valid, 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. Nonetheless, you may receive proxy solicitation materials from, or on behalf of, Mr.
Jorgl and the other members of the Dissident Group, including opposition proxy statements and proxy cards.
The
Board strongly urges you not to sign or return any proxy card sent to you by the Dissident Group even if the Dissident Group’s
proxy card provides an option to vote for the Board’s nominees. If you vote on any proxy card other than the WHITE proxy
card provided to you by the Company, you may risk your vote not being counted as a valid vote by proxy card.
If
you have any questions or need assistance voting, please contact the Company’s proxy solicitor Morrow Sodali LLC (“Morrow
Sodali”) at: (800) 662-5200 or AIM@investor.MorrowSodali.com.
What
matters will be voted on at the Annual Meeting?
We
are aware of three matters that stockholders may vote on at the Annual Meeting. The following items are each listed on the WHITE
proxy card:
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1. |
The
election of three directors to serve on the Board until the 2023 Annual Meeting of Stockholders, until their successors are duly
elected and qualified or until their earlier death, resignation or removal (Proposal 1); |
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2. |
The
ratification, on an advisory (non-binding) basis, of the selection of BDO USA, LLP as our independent registered public accounting
firm for the fiscal year ending December 31, 2022 (Proposal 2); and |
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|
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3. |
Approval,
on an advisory (non-binding) basis, of our named executive officer compensation (Proposal 3). |
We
will also transact such other matters as may properly come before the Annual Meeting.
Could
other matters be decided at the Annual Meeting?
The
Board does not intend to present to the Annual Meeting any business other than the proposals described in this Proxy Statement. Our Board
is not aware of any other business to be presented for action at the Annual Meeting. However, if any other matters properly come before
the Annual Meeting, the individuals named as proxies, or their duly constituted substitutes acting at the Annual Meeting, will be authorized
to vote or otherwise act thereon in accordance with their judgment on such matters to the extent authorized by Rule 14a-4(c) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
What
are the Board’s voting recommendations?
The
Board unanimously recommends that you vote your shares using the WHITE proxy card:
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● |
FOR
ALL of the Board’s nominees to be elected to serve on the Board until the 2023 Annual Meeting of Stockholders, until their
successors are duly elected and qualified or until their earlier death, resignation or removal (Proposal 1); |
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● |
FOR
the ratification, on an advisory (non-binding) basis, of the selection of BDO USA, LLP as our independent registered public accounting
firm for the fiscal year ending December 31, 2022 (Proposal 2); and |
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|
|
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● |
FOR
the approval, on an advisory (non-binding) basis, of our named executive officer compensation (Proposal 3). |
All
shares represented by validly executed WHITE proxy cards received prior to the taking of the vote at the Annual Meeting will be
voted by the designated proxy holders and, where a stockholder specifies by means of the WHITE proxy card a choice with respect
to any matter to be acted upon, the shares will be voted in accordance with the stockholder’s instructions.
THE
BOARD RECOMMENDS A VOTE FOR ALL OF OUR BOARD’S NOMINEES LISTED ON THE ENCLOSED WHITE PROXY CARD. If you indicate
on your WHITE proxy card, via the Internet or by telephone that you want to withhold authority to vote for a particular nominee,
then your shares will not be voted for that nominee.
Do
I have to attend the meeting to vote?
No.
If you want to have your vote count at the Annual Meeting, but not actually attend the meeting, you may vote by granting a proxy or—for
beneficial owners (i.e., “street name” stockholders)—by submitting voting instructions to your broker or nominee. In
most instances, you will be able to do this over the Internet, by telephone or by mail.
In
the United States, if you are not in possession of your voting proxy or instruction form, please contact your broker or bank for assistance
in obtaining a duplicate control number.
Do
Europeans holding Company Common Stock have to vote a different way?
Yes.
Europeans must contact their custodian bank or broker directly, as European banks and brokerage houses do not necessarily forward the
proxy materials to stockholders. As we are a Delaware corporation, there is no need for your bank or brokerage house to block your shares.
Banks and brokerage houses simply need to certify the number of shares owned by their clients on September 9, 2022 (the Record Date) and
cast votes on your behalf by November 2, 2022 (5:00 p.m., U.S. Eastern Daylight Time).
The
proxy materials are available at: https://aimimmuno.com/stockholder-meeting/
How
may I obtain a printed copy of the proxy materials?
To
receive free of charge a separate copy of the Notice and this Proxy Statement or the Company’s Annual Report on Form 10-K, stockholders
may write or call our offices at the following:
AIM
ImmunoTech, Inc.
Attn:
Investor Relations
2117
SW Highway 484
Ocala,
Florida 34473
(352)
448-7797
Beneficial
owners (i.e., “street name” stockholders) may contact their brokerage firm, bank, broker-dealer or other similar organization
to request information.
What
is the Record Date and what does it mean?
Our
Board established September 9, 2022 as the Record Date for the Annual Meeting to be held on November 3, 2022. Stockholders of record at
the close of business on the Record Date are entitled to notice of and to vote at the Annual Meeting.
What
is the difference between a “registered stockholder” and a “street name stockholder?”
These
terms describe how your shares of common stock are held.
If
your shares of common stock are registered directly in your name with American Stock Transfer & Trust Company (“AST”)—the
Company’s transfer agent—you are a stockholder of record (also known as a “registered stockholder”).
If
your shares of common stock are held in the name of a brokerage, bank, trust, or other nominee as a custodian, you are a beneficial owner
(i.e., a “street name” stockholder). As the beneficial owner, you have the right to instruct the broker, bank, or other nominee
how to vote the shares of common stock in your account. Please refer to the voting instructions provided by your bank, broker or other
nominee to direct it how to vote your shares. You are also invited to attend the Annual Meeting. However, because you are not the stockholder
of record, you will not be able to vote the shares of which you are the beneficial owner in person at the Annual Meeting unless you obtain
a legal proxy from the stockholder of record authorizing you to vote the shares.
How
many shares of common stock are entitled to vote at the Annual Meeting?
As
of September 9, 2022, the Record Date, there were approximately 48,049,300 shares of the Company’s common stock, par value
$0.001 per share, outstanding and entitled to vote at the Annual Meeting. Each share is entitled to one vote on all matters. There is
no cumulative voting, and the holders of the Company’s common stock vote together as a single class. Delaware law does not provide
stockholders any dissenters’ or appraisal rights with respect to the matters to be voted on at the Annual Meeting.
How
many votes must be present to hold the Annual Meeting?
For
the Annual Meeting, under our Bylaws, the required quorum for the transaction of business at the Annual Meeting is 40% of the shares
of common stock entitled to vote at the Annual Meeting, or by proxy.
For
purposes of determining whether a quorum is present, each share of common stock is deemed to entitle the holder to one vote per share.
Your
shares will be counted for purposes of determining if there is a quorum if you:
|
● |
Are
entitled to vote and you are present in person at the Annual Meeting; or |
|
|
|
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● |
Have
properly voted on the Internet, by telephone or by submitting a proxy card or voting instruction form by mail. |
Abstentions
and broker non-votes (if any) are counted as present for purposes of establishing a quorum at the Annual Meeting. However, if you receive
proxy materials from or on behalf of both the Company and the Dissident Group, then brokers holding shares in your account will not be
permitted to exercise discretionary authority regarding any of the proposals to be voted on at the Annual Meeting. As a result, there
would be no broker non-votes by such brokers. If you receive proxy materials from or on behalf of both the Company and the Dissident
Group and you do not submit any voting instructions to your broker, bank or other nominee, then your shares will not be counted in determining
the outcome of any of the proposals at the Annual Meeting, nor will your shares be counted for purposes of determining whether a quorum
exists. For additional information regarding broker non-votes, please see “How do abstentions, against votes, broker non-votes,
withhold votes and unmarked WHITE proxy cards affect the voting results?” in this Proxy Statement. A properly executed and valid
proxy marked “withhold” with respect to the election of a director nominee will be counted for purposes of determining if
there is a quorum at the Annual Meeting.
What
vote is required to approve each proposal?
Proposal
1 – Election of Directors. Directors will be elected by a plurality of the votes cast by holders of shares represented in person
or by proxy at the Annual Meeting and entitled to vote on the election of directors. Therefore, the three nominees for director who receive
the most votes cast by the shares represented in person or by proxy at the Annual Meeting and entitled to vote in the election will be
elected at the Annual Meeting.
Proposal
2 – Ratification of Selection of BDO USA, LLP. The affirmative vote of the holders of a majority in voting power of the shares
of our common stock, represented in person or by proxy at the Annual Meeting and entitled to vote on the matter, is required to ratify
the selection of BDO USA, LLP (Proposal 2). If the stockholders do not ratify the appointment, the Audit Committee of the Board (the
“Audit Committee”) will consider any information submitted by the stockholders in determining whether to retain BDO USA,
LLP as the Company’s independent registered public accounting firm for the fiscal year ended December 31, 2022. Even if the appointment
is ratified, the Audit Committee, in its discretion, may change the appointment at any time during the year if it determines that a change
would be in the best interests of the Company and its stockholders.
Proposal
3 – Advisory Vote on Our Named Executive Compensation. The affirmative vote of the holders of a majority in voting power of the
shares of our common stock, represented in person or by proxy at the Annual Meeting and entitled to vote on the matter, is required to
approve, on an advisory basis, the executive compensation of our named executive officers (Proposal 3). Although the advisory vote on
Proposal 3 is non-binding—as provided by law—the Compensation Committee of our Board (the “Compensation Committee”)
will review the results of the votes and will take them into account in making a determination concerning executive compensation.
How
do abstentions, against votes, broker non-votes, withhold votes and unmarked WHITE proxy cards affect the voting results?
Abstentions
and Broker Non-Votes. Abstentions, against votes and withhold votes, if any, will have no effect on the outcome of Proposal 1. Broker
discretionary voting is not permitted on Proposal 1, and broker non-votes, if any, will have no effect on the outcome of Proposal 1.
An
abstention will have the same effect as a vote “against” Proposal 2. Broker non-votes, if any, will have no effect on the
outcome of Proposal 2. Broker discretionary voting will also not be permitted on Proposal 2 if the Dissident Group delivers its proxy
materials to your broker, bank or other nominee on your behalf. If the Dissident Group does not provide you with a proxy card or voting
instruction form, your broker, bank or other nominee will be able to vote your shares with respect to Proposal 2, and broker non-votes
will not be applicable.
An
abstention will have the same effect as a vote “against” Proposal 3. Broker non-votes, if any, will have no effect on the
outcome of Proposal 3. Broker discretionary voting is not permitted on Proposal 3, and broker non-votes, if any, will have no effect
on the outcome of Proposal 3.
If
you receive proxy materials from or on behalf of both the Company and the Dissident Group, then brokers holding shares in your account
will not be permitted to exercise discretionary authority regarding any of the proposals to be voted on at the Annual Meeting. As a result,
there would be no broker non-votes at the Annual Meeting.
Unmarked
White Proxy Cards. If you sign and return a WHITE proxy card or otherwise vote as directed herein, but do not mark how your
shares are to be voted, the individuals named as proxies therein will vote your shares in accordance with the recommendation of the Board
on the three proposals; therefore, if no direction is made, an unmarked but signed WHITE proxy card will be voted:
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● |
FOR
ALL of the Board’s nominees to be elected to serve on the Board until the 2023 Annual Meeting of Stockholders, until their
successors are duly elected and qualified or until their earlier death, resignation or removal (Proposal 1); |
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FOR
the ratification, on an advisory (non-binding) basis, of the selection of BDO USA, LLP as our independent registered public accounting
firm for the fiscal year ending December 31, 2022 (Proposal 2); and |
|
|
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FOR
the approval, on an advisory (non-binding) basis, of our named executive officer compensation (Proposal 3). |
If
any other matters properly come before the Annual Meeting, the individuals named as proxies therein, or their duly constituted substitutes
acting at the Annual Meeting, will be authorized to vote or otherwise act thereon in accordance with their judgment on such matters to
the extent authorized by Rule 14a-4(c) of the Exchange Act.
Where
will I be able to find voting results of the Annual Meeting?
Voting
results will be tallied by the inspector of election. The Company will report the preliminary results in a Current Report on Form 8-K,
to be filed with the U.S. Securities and Exchange Commission (“SEC”) within four business days following the Annual Meeting,
and the final results as soon as practicable following certification by the inspector of election.
How
do I vote my shares of common stock?
Whether
you are a stockholder of record or are a beneficial owner holding any of your shares of common stock in “street name,” such
as in a stock brokerage account with a broker or through a bank or other nominee, you may vote in the following ways:
By
Phone |
|
By
Internet |
Vote
by dialing the number on the WHITE proxy card or WHITE voting instruction form
and following the easy voice prompts.
|
|
Follow
the instructions included on the WHITE proxy card or WHITE voting instruction form. |
By
Mail |
|
In
Person |
If
you request printed copies of the proxy materials by mail, you will receive a WHITE proxy card and you may vote the proxy
by filling out the WHITE proxy card and returning it in the enclosed postage-paid envelope. |
|
Attend
the Annual Meeting and vote in person. If you hold any shares in “street name,” you may not vote in person unless you
bring with you a legal proxy from the organization that holds your shares. |
The
deadline for voting by telephone or by Internet will vary depending upon how you vote your shares. Please follow the instructions shown
on your WHITE proxy card or WHITE voting instruction form.
If
you are not the stockholder of record, please refer to the voting instructions provided by your bank, broker or other nominee to direct
it how to vote your shares on the WHITE voting instruction form. Your vote is important. You are also invited to attend the Annual
Meeting. However, if you are not the stockholder of record, you may not vote these shares in person at the Annual Meeting unless you
obtain a legal proxy from the stockholder of record authorizing you to vote the shares of common stock.
Certain
of our stockholders hold their shares in more than one account and may receive separate proxy cards or voting instruction forms for each
of those accounts. To ensure that all of your shares are represented at the Annual Meeting, we recommend that you submit every WHITE
proxy card or WHITE voting instruction form you receive.
The
Dissident Group has notified the Company that the Dissident Group intends to file its own proxy statement with the SEC in connection
with the solicitation of proxies from stockholders of the Company. Accordingly, you may receive solicitation materials from the Dissident
Group seeking your proxy to vote in favor of Mr. Jorgl’s purported nominees.
If
you do receive any materials other than from the Company, our Board urges you NOT to sign or return any proxy card sent to you
by the Dissident Group even if the Dissident Group’s proxy card provides an option to vote for the Board’s nominees. Our
Board recommends a vote FOR ALL of the Board’s nominees by submitting the enclosed WHITE proxy card.
Can
I change my vote after I have mailed in my proxy card(s) or submitted my vote using the Internet or telephone?
If
you are a stockholder of record, you may revoke your proxy or change your vote prior to the Annual Meeting by:
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● |
Voting
again at a later time via the Internet or by telephone; |
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● |
Signing,
dating, and returning a new proxy card or voting instruction form with a later date; |
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● |
Signing,
dating, and mailing an instrument revoking the proxy to the attention of the Corporate Secretary, AIM ImmunoTech Inc., 2117 SW Highway
484, Ocala, Florida 34473; or |
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● |
Attending
the Annual Meeting and voting. |
If
you are a beneficial owner of your shares and you have instructed your bank, broker, or other nominee to vote your shares, you may change
your vote prior to the Annual Meeting by following directions provided by your bank, broker or other nominee to change such voting instructions.
If you hold shares in “street name,” your attendance at the Annual Meeting will not revoke your voting instructions. In the
absence of a revocation, shares represented by proxies will be voted at the Annual Meeting.
If
you vote, or have previously voted, using a proxy card or voting instruction form sent to you by the Dissident Group, you may change
your vote by completing, signing, dating, and returning the enclosed WHITE proxy card in the postage-paid envelope provided, or
by voting via the Internet or by telephone by following the instructions on the WHITE proxy card or WHITE voting instruction
form. Please note that submitting a proxy card sent to you by the Dissident Group will revoke votes you have previously made via the
Company’s WHITE proxy card.
Voting
on a proxy card or voting instruction form sent to you by the Dissident Group—even to withhold with respect to any of Mr. Jorgl’s
purported nominees—is not the same as voting for our Board’s nominees on the WHITE voting instruction form or WHITE
proxy card because a vote to withhold with respect to any of Mr. Jorgl’s purported nominees on the Dissident Group’s
voting instruction form or proxy card will revoke any WHITE voting instruction form or WHITE proxy card you may have previously
submitted.
How
will my proxy be voted?
If
you complete, sign, date and return your WHITE proxy card(s) or vote by telephone or by using the Internet, your proxy will be
voted in accordance with your instructions. If you are a stockholder of record, and you sign and date your WHITE proxy card(s)
but do not indicate how you want to vote, your shares of common stock will be voted as our Board recommends for each of the proposals.
If you are a beneficial owner (i.e., a “street name” stockholder), and you sign and date your WHITE proxy card(s)
but do not indicate how you want to vote, then the organization that holds your shares of common stock may generally vote on “routine”
matters (also referred to as “discretionary matters”) but cannot vote on “non-routine” matters (also referred
to as “non-discretionary matters”), as determined by applicable SEC and New York Stock Exchange (“NYSE”) rules.
Please see What if my shares of common stock are held in “street name” by my broker? below.
What
if my shares of common stock are held in “street name” by my broker?
Please
be sure to give specific voting instructions to your broker so that your vote can be counted. If you hold your shares of common stock
in your broker’s name and wish to vote at the Annual Meeting, you must contact your broker and request a document called a “legal
proxy.” You must obtain this legal proxy in order to vote at the Annual Meeting. Even if you plan to attend the Annual Meeting,
management strongly recommends that you vote your shares prior to attending the meeting.
If
you are a beneficial owner of shares held in street name and do not provide the organization that holds your shares with specific voting
instructions, then the organization that holds your shares may generally vote on “routine” matters but cannot vote on “non-routine”
matters, as determined by applicable SEC and NYSE rules. If the organization that holds your shares does not receive instructions from
you on how to vote your shares on a non-routine matter, that organization will inform the inspector of election that it does not have
the authority to vote on this matter with respect to your shares. This is generally referred to as a “broker non-vote.” Each
of Proposal 1 and Proposal 3 included in this Proxy Statement is considered to be a non-routine matter, and therefore brokers,
banks or other nominees will not have authority to vote your shares on these proposals if you do not provide them with
specific voting instructions.
Typically,
the ratification of the appointment of registered public accounting firm is considered a “routine” proposal, and brokers
have discretion to vote on that matter even if no instructions are received from the “street name” holder. However, to the
extent that the Dissident Group provides a proxy card or voting instruction form to stockholders who hold their shares in “street
name,” brokers will not have discretionary voting authority to vote on any of the proposals presented at the Annual Meeting. Broker
non-votes are not counted in the tabulations of the votes cast or present at the Annual Meeting and entitled to vote on any of the proposals
to be voted on at the Annual Meeting, and therefore will have no effect on the outcome of the proposals. Accordingly, if the Dissident
Group provides a proxy card or voting instruction form to stockholders who hold their shares in “street name,” Proposal 2
included in this Proxy Statement will be a non-routine matter, and therefore brokers, banks or other nominees will not have authority
to vote your shares if you do not provide them with specific voting instructions.
If,
however, the Dissident Group does not provide a proxy card or voting instruction form to stockholders who hold their shares in “street
name,” then Proposal 2 would be considered to be a routine matter, and your broker, bank or other nominee would be able to vote
upon the matter if you do not provide them with specific voting instructions. However, in that event, it is possible that a broker may
choose not to exercise discretionary authority with respect to the Proposal 2. In that case, if you do not instruct your broker how to
vote with respect to Proposal 2, your broker may not vote with respect to such proposal.
What
are the Board’s recommendations on how I should vote my shares of common stock?
The
Board recommends that you vote your shares of common stock using a WHITE proxy card as follows:
|
1. |
FOR
ALL of the Board’s nominees (Thomas K. Equels, William M. Mitchell and Stewart L. Appelrouth) to be elected to serve on
the Board until the 2023 Annual Meeting of Stockholders, until their successors are duly elected and qualified or until their earlier
death, resignation or removal (see Proposal 1); |
|
|
|
|
2. |
FOR
the ratification, on an advisory (non-binding) basis, of the selection of BDO USA, LLP as our independent registered public accounting
firm for the fiscal year ending December 31, 2022 (see Proposal 2); and |
|
|
|
|
3. |
FOR
the approval, on an advisory (non-binding) basis, of our named executive officer compensation (see Proposal 3). |
We
do not expect any additional matters to be presented for action at the Annual Meeting other than the matters described in this Proxy
Statement. However, by signing, dating and returning your WHITE proxy card or by following the instructions on the enclosed WHITE
proxy card to submit your proxy and voting instructions via the Internet or phone, you will give to the persons named as proxies
discretionary voting authority, to the extent authorized by Rule 14a-4(c) of the Exchange Act, with respect to any other matter that
may properly come before the Annual Meeting. The proxies will vote on any such matter in accordance with their best judgment to the extent
authorized by Rule 14a-4(c) of the Exchange Act.
Does
the Company have cumulative voting?
No.
Who
may attend the Annual Meeting?
Attendance
at the Annual Meeting will be limited to stockholders as of the Record Date, their authorized representatives, and guests of the Company.
Access to the Annual Meeting may be granted to others at the discretion of the Company and the chair of the Annual Meeting. In accordance
with the Company’s security procedures, all persons attending the Annual Meeting must present picture identification along with
proof of ownership. If you are a stockholder of record, please be prepared to provide the top portion of your WHITE proxy card.
If you hold your shares in “street name,” you will need to provide proof of ownership, such as a recent account statement
or letter from your broker. Cameras and recording devices will not be permitted at the Annual Meeting.
Is
a list of stockholders of record available?
The
Company’s list of stockholders as of the Record Date and entitled to vote at the Annual Meeting will be available for examination
by any stockholder, for any purpose germane to the Annual Meeting, at the Annual Meeting and for 10 days prior to the Annual Meeting
during ordinary business hours at 2117 SW Highway 484, Ocala, Florida 34473, the Company’s principal place of business. The stockholder
list will also be open to the examination of any stockholder during the Annual Meeting at the place of the meeting.
Is
my vote confidential?
Proxy
instructions, ballots and voting tabulations that identify individual stockholders are handled in a manner that protects your voting
privacy. Your vote will not be disclosed either within the Company or to third parties, except:
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● |
As
necessary to meet applicable legal requirements; |
|
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● |
To
allow for the tabulation and certification of votes; and |
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● |
To
facilitate a proxy solicitation. |
Who
is paying the costs of the proxy solicitation?
The
Company will bear the cost of the solicitation of proxies by the Company and Board. For additional information regarding the cost of
this solicitation, please see the section “Solicitation of Proxies” in this Proxy Statement.
Who
should I call if I have questions about the Annual Meeting?
If
you have any questions or require assistance voting on the WHITE voting instruction form or WHITE proxy card, or if you
need additional copies of the proxy materials, please contact our proxy solicitation firm Morrow Sodali at:
Morrow
Sodali LLC
509
Madison Avenue Suite 1206
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
Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The
Notice of 2022 Annual Meeting of Stockholders, this Proxy Statement, the Accompanying WHITE Proxy Card, and the Company’s Annual
Report on Form 10-K are available at https://aimimmuno.com/stockholder-meeting/
|
BACKGROUND
OF THE SOLICITATION
In
July 2020, Thomas Equels, AIM ImmunoTech Inc.’s CEO, was introduced to Franz Tudor, who offered to assist AIM with international
business development and marketing of its drug Ampligen, an immuno-modulator with broad spectrum activity being developed by AIM to treat
cancers, viral diseases and disorders of the immune system. Mr. Tudor requested that AIM hire him as a consultant for international business
development.
AIM
subsequently researched Mr. Tudor’s background and discovered that Mr. Tudor had previously been indicted for and pled guilty to
insider trading criminal charges brought by the Department of Justice, and also settled insider trading civil charges brought by the
SEC. The SEC Litigation Release from August 2, 2011 regarding the matter stated that Mr. Tudor consented to the entry of an SEC order
(the “SEC Injunction”) pursuant to which he is “barred from association with any broker, dealer, investment advisor,
municipal securities dealer, or transfer agent, and barred from participating in any offering of a penny stock, including: acting as
a promoter, finder, consultant, agent or other person who engages in activities with a broker, dealer or issuer for purposes of the issuance
or trading in any penny stock, or inducing or attempting to induce the purchase or sale of any penny stock.” Like a number of other
SEC injunctions issued at the time, the SEC Injunction was later partially vacated on July 5, 2019 to remove the bar on association with
any investment advisor, municipal securities dealer, or transfer agent. The rest of the SEC Injunction remains in force.
On
August 6, 2020, Mr. Equels emailed Mr. Tudor to communicate that AIM would not be hiring Tudor or his business for business development
purposes.
Following
Mr. Equels’ email, Mr. Tudor contacted multiple important business partners and contacts of AIM, including, for example, a multinational
healthcare company, a biopharma company, a research institution conducting clinical trials with Ampligen, and a Food and Drug Administration
(FDA) lobbyist. On occasion, Mr. Tudor misrepresented that, or held himself out as though, he was acting on behalf of AIM. As a result,
AIM had to notify certain business contacts that Mr. Tudor was not in fact employed by or acting on behalf of AIM.
During
this period, Mr. Tudor also sent several dozen unsolicited communications to AIM, its management team, directors and investor relations
(“IR”) firm.
On
October 16, 2020, as a result of Mr. Tudor’s communications with AIM and its regulators and potential business partners becoming,
in AIM’s view, highly inappropriate, AIM’s counsel emailed Mr. Tudor to direct him to immediately cease and desist from representing
to anyone that he was in any way authorized to speak on behalf of AIM and from further interference with AIM and its operations.
Mr.
Tudor continued his pattern of contacting AIM and certain of its representatives and advisors in a manner that AIM believed was disruptive
to the business. Therefore, on February 25, 2021, AIM filed an action in a court in Marion County, Florida seeking an injunction against
Mr. Tudor to enjoin him from further interfering with AIM’s employees, business partners, clinical sites, clinical investigators,
and regulators and from representing that he is affiliated with or an authorized representative of AIM.
On
August 13, 2021, Mr. Tudor was indefinitely enjoined by a judge in the Circuit Court of the Fifth Judicial District, In and For Marion
County, Florida, from contacting any of AIM’s business relations (the “Marion County Injunction”).
Despite
the SEC Injunction and Marion County Injunction, Mr. Tudor has continued to contact an investment bank and IR firm retained by AIM and
has ignored directives from AIM and its counsel to cease any further contacts.
On
July 30, 2020, Mr. Tudor sent a message to an AIM employee claiming to represent over 1 million shares of AIM stock between his own holdings
and the funds he consults for.
On
August 14, 2020, Todd Deutsch, who AIM understands has been an acquaintance of Mr. Tudor since at least the early 2000s when they were
both employed at the Galleon Group hedge fund, emailed AIM claiming to be one of AIM’s top stockholders with over 600,000 shares
of common stock. On June 12, 2022, Mr. Deutsch claimed to have increased his holdings by approximately fourfold to 4.9% of AIM’s
shares of common stock.
AIM
believes Mr. Tudor and Mr. Deutsch have been in contact regarding their investments in AIM for over a year. For example, on February
4, 2021, Mr. Tudor emailed AIM and copied Mr. Deutsch on his email. During March and April 2022, on numerous occasions, Mr. Tudor emailed
a representative of AIM’s IR firm, and then shortly thereafter, Mr. Deutsch sent an email to Mr. Equels forwarding one of Mr. Tudor’s
emails, even though Deutsch had not been shown as a recipient on Mr. Tudor’s original emails. During this period, Mr. Tudor and
Mr. Deutsch also frequently sent emails to AIM and AIM’s IR firm at the same time with the same subject line and subject matter.
For example, on April 19, 2022, Mr. Tudor sent an email to AIM’s IR firm at 11:54 AM with the subject line “XBI Bouncing
& CMPI TLR9 Acquired”. Three minutes later, at 11:57 AM, Mr. Deutsch sent an email to AIM with the exact same subject line:
“XBI Bouncing & CMPI TLR9 Acquired”.
Mr.
Deutsch has also been in contact with Ted Kellner, a Milwaukee businessman, regarding their investments in AIM. In multiple conversations
with AIM’s IR firm, Mr. Deutsch said that he had convinced Mr. Kellner to invest in AIM and that Mr. Kellner holds a significant
amount of shares of AIM common stock. According to Mr. Kellner, he and Mr. Deutsch have known each other for years and invested in more
than 20 companies together.
On
March 30, 2022, Mr. Deutsch asked AIM’s IR firm to schedule a phone call for himself and Mr. Kellner to speak with the IR firm.
Then, in the process of scheduling the phone call, Mr. Deutsch sent the correspondence to Mr. Tudor, asking if the proposed time for
the call worked for Mr. Tudor, but he inadvertently left a representative of AIM’s IR firm on the email chain. Mr. Deutsch, upon
realizing what he had done, promptly apologized to AIM’s IR firm and removed Mr. Tudor from the email chain. AIM believes Messrs.
Deutsch and Kellner intended to schedule a phone call with AIM and its IR firm, during which Mr. Tudor would silently participate unbeknownst
to AIM or its IR firm.
On
April 18, 2022, Walter Lautz submitted a shareholder proposal pursuant to Rule 14a-8 of the Exchange Act, seeking the inclusion of Robert
Chioini and Daniel Ring in AIM’s proxy materials each as a nominee for election as a director of AIM (the “Lautz Proposal”).
In the Tudor Motion to Dismiss (as defined below), Mr. Tudor admitted that he suggested that Mr. Lautz contact Mr. Chioini and Mr. Ring
as potentially interested parties for the Lautz Proposal.
On
April 28, 2022, AIM rejected the Lautz Proposal because Rule 14a-8 explicitly states that a basis for a company to exclude a shareholder
proposal is if the proposal “[s]eeks to include a specific individual in the company’s proxy materials for election to the
board of directors.”
On
May 9, 2022, AIM sent a letter to the SEC requesting that the SEC issue a no-action letter regarding AIM’s decision to reject the
Lautz Proposal and exclude it from its proxy materials for the Annual Meeting.
On
June 27, 2022, AIM received a no-action letter from the SEC confirming there was a basis for the Board to exclude the Lautz Proposal.
Mr. Lautz was copied on the SEC’s no-action letter.
The
same day, June 27, 2022, that the SEC issued its no-action letter agreeing with AIM that there was a basis for excluding the Lautz Proposal
from AIM’s proxy materials for the Annual Meeting, Jonathan Jorgl purchased 1,000 shares of AIM common stock.
On
July 8, 2022, AIM received the Purported Nomination Notice from Mr. Jorgl, dated July 8, 2022, purporting to nominate Mr. Chioini and
Michael Rice as candidates for election to the Board at the Annual Meeting.
According
to Mr. Chioini, he and Mr. Tudor have known each other for some time. Mr. Chioini and Mr. Tudor previously worked together at Rockwell
Medical, where Mr. Chioini was the CEO until 2018. Concurrently, the investor relations firm founded by Mr. Rice, LifeSci Advisors, worked
for Rockwell Medical. Mr. Chioini and Mr. Tudor subsequently worked together at SQI diagnostics, and Messrs. Chioini and Tudor have each
confirmed that they discussed Mr. Chioini’s potential nomination to the Board.
On
July 14, 2022, the Board unanimously voted to reject the Purported Nomination Notice because it failed to comply with the Bylaws.
The Bylaws require a stockholder who is making a nomination to disclose a description of all arrangements or understandings between
such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the
nomination(s) are to be made. Based on the historical connections among Messrs. Tudor, Chioini, Rice, Deutsch, Lautz and Kellner
(and their respective histories with AIM), and the implausibility that Mr. Jorgl, who had no prior ownership of AIM stock and owned
under $1,000 worth of AIM stock, would commence a proxy contest for control of a public company board involving candidates connected
to a group of stockholders who claimed to collectively hold over 5% of AIM’s shares while failing to disclose any of
these connections, the Board found that the Purported Nomination Notice had failed to disclose the arrangements and understandings
required by the Bylaws, and was therefore invalid. Additionally, the Bylaws also require a person making a nomination to disclose
their beneficial ownership of AIM common stock, and the Board found that because Mr. Jorgl was in a group with (at a minimum)
Messrs. Tudor, Deutsch, Lautz, and Kellner, their shares were imputed to Mr. Jorgl, and he had therefore failed to disclose his
beneficial ownership as required by the Bylaws. Because of the defects identified by the Board, the Board unanimously determined
that the Purported Nomination Notice was invalid.
At
that same meeting, the Board unanimously decided to file a complaint against Messrs. Tudor, Chioini, Rice, Jorgl, Deutsch, Lautz and
Kellner (collectively, the “Florida Defendants”), for violations of federal securities laws, including violations of Regulation
13D-G, which requires stockholders forming a group with beneficial ownership in excess of 5% of a company’s outstanding shares
to make a filing with the SEC detailing certain information about the members of such a group, their ownership and certain agreements
and arrangements among the group members.
On
July 15, 2022, AIM filed a lawsuit against the Florida Defendants in the Federal District Court for the Middle District of Florida, seeking
(i) a declaration that the Florida Defendants violated Section 13(d) of the Exchange Act; and (ii) an injunction that prevents the Florida
Defendants from future violations of the federal securities laws (the “Federal Securities Law Action”).
On
July 18, 2022, AIM issued a press release announcing that the Board had rejected the Purported Nomination Notice because it failed to
comply with the Bylaws.
On
July 19, 2022, AIM sent Mr. Jorgl a letter explaining the Board had unanimously rejected the Purported Nomination Notice for failing
to comply with the Bylaws and applicable law in a number of respects.
On
July 27, 2022, Mr. Jorgl formed a group with Mr. Chioini, Mr. Rice, and River Rock Advisors LLC “to facilitate payment of certain
fees and expenses in connection with the nominations and solicitation of proxies in support of the nominations.”
On
July 28, 2022, Mr. Jorgl filed suit against AIM and the members of the Board in the Delaware Chancery Court, seeking declaratory judgment
that the Purported Nomination Notice was valid.
On
August 5, 2022, Mr. Jorgl sent AIM a notice pursuant to the universal proxy rules applicable to contested elections of directors, reiterating
his intent to nominate Mr. Chioini and Mr. Rice for election to the Board at the Annual Meeting and for Messrs. Jorgl, Chioini and Rice
and River Rock Advisors, LLC to solicit proxies from holders of at least 67% of the voting power of shares of AIM common stock.
On
August 12, 2022, the Delaware Chancery Court held a hearing on Mr. Jorgl’s motion for a temporary restraining order (“TRO”).
Mr. Jorgl sought from the Delaware Chancery Court a TRO that would (i) enjoin AIM and the members of the Board from taking any action
to prevent Mr. Jorgl from nominating Mr. Chioini and Mr. Rice for election to the Board; (ii) require AIM to list Mr. Chioini and Mr.
Rice as valid director candidates in the proxy materials distributed in advance of the Annual Meeting; and (iii) enjoin AIM and the Board
from disparaging the candidacies of Mr. Chioini and Mr. Rice prior to the Annual Meeting.
On
August 15, 2022, held a second hearing on Mr. Jorgl’s motion for a TRO. At the conclusion of the hearing, the Delaware Chancery
Court denied Mr. Jorgl’s motion for a TRO and scheduled the preliminary injunction hearing for October 5, 2022.
Under
AIM’s proposed order concerning scheduling, entered by the Delaware Chancery Court on August 15, 2022, AIM agreed to schedule the
Annual Meeting to convene the week of October 31, 2022. AIM also agreed that, if requested or ordered by the Delaware Chancery Court,
AIM will convene the Annual Meeting for the sole purpose of adjourning it, and will adjourn the Annual Meeting to such date as the Delaware
Chancery Court requests (not more than 30 days following the date the meeting is convened), and, if requested or ordered by the Delaware
Chancery Court, AIM has agreed to subsequently convene and adjourn the Annual Meeting (for not more than 30 days each time), to ensure
the Court has sufficient time to rule on Mr. Jorgl’s motion for a preliminary injunction before a vote is taken on the election
of directors at the Annual Meeting.
On
August 17, 2022, AIM sent Mr. Jorgl a letter (the “August 17th Letter”) announcing its intent to solicit proxies in favor
of the re-election of the following nominees of the Board: Stewart L. Appelrouth, Thomas K. Equels, and William M. Mitchell. The August
17th Letter indicated that because the Purported Nomination Notice did not constitute valid notice of nominations, as indicated in the
July 19, 2022 letter to Mr. Jorgl, Mr. Jorgl’s nominations of his purported nominees would be disregarded at the Annual Meeting
and AIM was not required to comply with the universal proxy rules that apply to contested elections of directors with respect to Mr.
Jorgl’s disregarded nominees. The August 17th Letter expressly disclaimed the applicability of certain notice requirements under
the SEC’s new universal proxy rules with respect to Mr. Jorgl’s purported nominees, but indicated that it was being sent
to Mr. Jorgl solely to reserve AIM’s right to comply with the universal proxy rules in the event that AIM is required to so comply
by applicable law.
On
August 18, 2002, Mr. Jorgl sent AIM a demand (the “Stocklist Demand”) for stocklist materials pursuant to Section 220 of
the General Corporation Law of the State of Delaware (the “DGCL”).
On
August 18, 2022, AIM and Mr. Jorgl each submitted a proposed scheduling order for the leadup to the preliminary injunction hearing and
an explanatory letter to the Delaware Chancery Court. Mr. Jorgl’s submission stated that he did not believe any discovery in the
matter was warranted. On August 19, 2022, the Delaware Chancery Court entered AIM’s proposed scheduling order and stated Plaintiff
must comply with his discovery obligations.
On
August 22, 2022, Mr. Tudor entered, a motion for dismissal of the Federal Securities Law Action (the “Tudor Motion to Dismiss”).
In the Tudor Motion to Dismiss, Mr. Tudor acknowledged he was acquainted with Messrs. Deutsch, Chioini, Lautz, Kellner and Rice and had
consulted with at least Mr. Chioini and Mr. Lautz in connection with Mr. Chioini’s desire to be nominated for election to the Board
at the Annual Meeting, among other things.
On
August 25, 2022, outside counsel for AIM responded to the Stocklist Demand, agreeing that AIM would provide the pertinent stocklist materials
in AIM’s possession to Mr. Jorgl, subject to entry into a customary confidentiality agreement and reimbursement of AIM’s
related expenses. Counsel for AIM and Mr. Jorgl subsequently negotiated the terms of the confidentiality agreement.
On
September 9, 2022, AIM filed a preliminary proxy statement with the SEC in connection with the Annual Meeting.
On September 15, 2022, the Dissident
Group filed a preliminary proxy statement with the SEC in connection with the Annual Meeting. In its preliminary proxy statement, the
Dissident Group disclosed that its proxy campaign is being funded by an individual whose role and identity the Dissident Group had not
previously disclosed, Michael Xirinachs. According to the Dissident Group’s preliminary proxy statement, Mr. Xirinachs pled guilty
to criminal charges of wire fraud relating to fraudulent securities trading and promotion and material misrepresentations to investors
and misuse of funds, and was recently sentenced by a federal court to three years’ probation and ordered to pay hundreds of thousands
of dollars in restitution.
On September 19, 2022, AIM
filed this definitive proxy statement with the SEC in connection with the Annual Meeting.
INFORMATION
CONCERNING BOARD MEETINGS
The
Board is responsible for the management and direction of AIM and for establishing broad corporate policies. A primary responsibility
of the Board is to provide effective governance over the Company’s affairs for the benefit of its stockholders. In all actions
taken by the Board, the directors are expected to exercise their business judgment in what they reasonably believe to be the best interests
of the Company. In discharging that obligation, directors may rely on the honesty and integrity of the Company’s senior executives
and its outside advisers and auditors.
The
Board and various committees of the Board meet periodically throughout the year to receive and discuss operating and financial reports
presented by the Chief Executive Officer and Chief Financial Officer, as well as reports by other members of senior management, experts
and other advisers. Directors are expected to personally attend Board meetings unless the meeting is held by teleconference. The Board
held seven meetings in 2021 and executed eight unanimous consents. All Directors were in attendance for the meetings, as well as for
the 2021 Annual Meeting of Stockholders, held on October 7, 2021.
In
2021, the non-employee (independent) directors did not meet without employee directors or management personnel present. Interested persons
who wish to contact the Chairman of the Board or other non-employee Directors, can do so by sending written comments through the Office
of the Secretary of the Company at AIM ImmunoTech Inc., 2117 SW Highway 484, Ocala, Florida 34473. The Office will either forward the
original materials as addressed, or provide directors with summaries of the correspondence, with the originals available for review at
the directors’ request.
CONDUCT
OF THE MEETING
The
Chairman of our Board (or any person designated by our Board) has broad authority to conduct the Annual Meeting in an orderly manner.
This authority includes establishing rules of conduct for stockholders who wish to address the meeting, including limiting questions
to the order of business and to a certain amount of time. Copies of these rules will be available at the meeting. To ensure that the
meeting is conducted in a manner that is fair to all stockholders, the Chairman (or such person designated by our Board) may also exercise
broad discretion in recognizing stockholders who wish to speak, in determining the extent of discussion on each item of business and
in managing disruptions or disorderly conduct.
CORPORATE
GOVERNANCE
Our
Board has adopted corporate governance guidelines. These guidelines address items such as the standards, qualifications and responsibilities
of our directors and director candidates and corporate governance policies and standards applicable to us in general. In addition, we
have a code of conduct that applies to all our employees, including our executive officers and our directors. The code of conduct is
posted under “Corporate Governance” in the Investors section of our website at https://aimimmuno.com/corporate-governance/.
We will disclose under “Corporate Governance” in the Investors section of our website any amendments to, or any waivers under,
the code of conduct that are required to be disclosed by the rules of the SEC. Our Board has four standing committees: the Audit Committee,
the Compensation Committee, the Disclosure Controls Committee, and the Corporate Governance and Nominating Committee. The Board also
has an Executive Committee, which did not meet in 2021. Each committee operates under a written charter, which are available on our website
https://aimimmuno.com/corporate-governance. Detailed information on our Board and its committees can be found within the attached document.
BOARD
STRUCTURE
The
Board currently separates the roles of Chairman of the Board of Directors and CEO of the Company. Periodically, our Corporate Governance
and Nomination Committee assesses these roles and the board leadership structure to ensure the interests of the Company and its stockholders
are best served.
Currently,
the independent Chairman position is held by William Mitchell and our CEO is Thomas Equels.
The
current separation of the Chairman and CEO roles allows the CEO to focus his time and energy on operating and managing the Company and
leverage the experience and perspectives of the Chairman. The Chairman sets the agenda for, and presides over, board meetings and independent
sessions and coordinates the work of the committees of our Board, providing independent oversight and streamlining the CEO’s duties.
The Board believes this governance structure promotes balance between the Board’s independent authority to oversee our business
and the CEO and his management team who manage the business on a day-to-day basis.
INFORMATION
CONCERNING COMMITTEES OF THE BOARD
The
Board maintains the following committees:
Executive
Committee
In
February 2016, our Board formed the Executive Committee. The Executive Committee reports to the Board, and its purpose is to aid the
Board in handling matters which, in the opinion of the Chairman of the Board, should not be postponed until the next scheduled meeting
of the Board. Mr. Equels, our Chief Executive Officer is the chair of the Committee, and is a member of the Committee along with
two of our independent directors, Mr. Appelrouth and Dr. Mitchell. The full text of the Executive Committee Charter, as approved by the
Board, is available on our website: www.aimimmuno.com in the “Investor Relations” tab under “Corporate Governance”.
The Committee did not meet in 2021.
Compensation
Committee
The
Compensation Committee consists of the following two directors, each of whom is “independent” under applicable NYSE American
rules, a “Non-Employee Director” as defined in Rule 16b-3 under the Exchange Act, and an “Outside Director” as
defined under the U.S. Treasury regulations promulgated under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Internal
Revenue Code”): Dr. William Mitchell, M.D. (Chair) and Stewart L. Appelrouth.
The
Compensation Committee oversees implementation and administration of the Company’s compensation and employee benefits programs
with the goal of attracting, retaining and motivating executives and officers, as well as other employees, to improve their performance
and the Company’s financial performance. In that regard, the Compensation Committee (1) reviews and approves corporate goals and
objectives relevant to compensation; (2) evaluates the performance and compensation of the Company’s officers and executives and
reviews the compensation of all other non-officer executives of the Company that are considered highly paid; (3) reviews and approves
employment agreements, severance agreements, change of control agreements, deferred compensation agreements, perquisites and similar
compensation arrangements of the Company’s executive officers; (4) makes recommendations to the Board on the compensation of non-employee
members of the Board; (5) administers the Company’s incentive and equity-based compensation plans, including, approving the grant
of equity awards under such plans, reviewing such plans and making recommendations to the Board regarding the adoption, amendment or
termination of such plans; (6) selects and determines the fees and scope of work of its compensation consultants; and (7) reviews the
Company’s compensation strategy to assure that it continues to advance the Company’s objectives and promote stockholder value.
The full text of the Compensation Committee’s Charter, as approved by the Board, is available on our website: www.aimimmuno.com
in the “Investor Relations” tab under “Corporate Governance”.
This
Committee formally met three times in 2021 and all committee members were in attendance for the meeting. Our General Counsel, Chief Financial
Officer and Director of Human Resources support the Compensation Committee in its work.
Corporate
Governance and Nomination Committee
In
2021, the Corporate Governance and Nomination Committee met three times. All committee members were in attendance for the meetings.
The Corporate Governance and Nomination Committee consists of Dr. William M. Mitchell (Chair) and Director, and Mr. Stewart L. Appelrouth,
Director.
All
of the members of the Committee meet the independence standards contained within the NYSE American Company Guide and AIM’s Corporate
Governance Guidelines. The full text of the Corporate Governance and Nomination Committee Charter as well as the Corporate Governance
Guidelines, are available on our website: https://aimimmuno.com/corporate-governance/.
The
Corporate Governance and Nomination Committee is responsible for (1) assisting the Board in identifying, recommending, assessing, recruiting
and selecting candidates to serve as members of the Board, including in connection with filling vacancies; (2) assisting the Board in
developing criteria for identifying and selecting individuals for nomination to the Board; (3) advising the Board with respect to the
Board’s composition, procedures and committees; (4) reviewing, assessing and recommending appropriate Corporate Governance Guidelines;
(5) reviewing the charter of each committee of the Board and recommending to the Board the number, identity and responsibilities of each
committee; (6) reviewing the Company’s business practices as they relate to preserving the good reputation of the Company; (7)
developing and recommending to the Board procedures for succession planning for Company executives and continuity of the Board; and (8)
assessing the effectiveness of the Board in meeting the long-terms interest of the stockholders. The Committee is authorized to retain
search firms and other consultants to assist it in identifying candidates and fulfilling its other duties.
Stockholders
who wish to suggest qualified candidates should write to the Corporate Secretary, AIM ImmunoTech Inc., 2117 SW Highway 484, Ocala, Florida
34473, stating in detail the qualifications of such persons for consideration by the Committee. Director candidates should demonstrate
the qualifications, experience and skills for Board members which are important to AIM’s business and its future, as outlined in
Proposal 1 below.
The
Company aspires to the highest standards of ethical conduct; reporting results with accuracy and transparency; and maintaining full compliance
with the laws, rules and regulations that govern the Company’s business. AIM’s Corporate Governance Guidelines embody many
of our policies and procedures which are at the foundation of our commitment to best practices. The guidelines are reviewed annually
and revised if deemed necessary, to continue to reflect best practices.
Disclosure
Controls Committee
The
Disclosure Controls Committee (“DCC”) reports to the Audit Committee and is responsible for procedures and guidelines on
managing disclosure information. The purpose of the DCC is to make certain that information required to be publicly disclosed is properly
accumulated, recorded, summarized and communicated to the Board and management. This process is intended to allow for timely decisions
regarding communications and disclosures and to help ensure that we comply with related SEC rules and regulations. The DCC is responsible
for (1) implementing, monitoring and evaluating the Company’s disclosure controls and procedures; (2) reviewing and evaluating
the Company’s interactions with the FDA and other similar regulatory bodies; and (3) reviewing with the Audit Committee earnings
and other press releases and periodic reports and proxy statements of the Company that are to be filed with the SEC. Robert Dickey, our
CFO, is the DCC’s Investor Relations Coordinator and Chair. The other members of the DCC are Peter Rodino, our COO and General
Counsel, William Mitchell, one of our Independent Directors, Dr. David Strayer, Chief Scientific Officer, Diane Young, our Clinical Project
Manager, Jodie Pelz, our Controller, and Ann Marie Coverly, Director of HR and Administration serving as the Deputy Investor Relations
Coordinator. The full text of the DCC’s Charter, as approved by the Board, is available on our website: www.aimimmuno.com in the
“Investor Relations” tab under “Corporate Governance”. The DCC actively met on numerous occasions in 2021.
Audit
Committee and Audit Committee Expert
The
Audit Committee of our Board consists of Stewart L. Appelrouth (Chair) and Dr. Mitchell, both determined by the Board to be Independent
Directors as required under Section 803(2) of the NYSE: American Company Guide and Rule 10A-3 under the Exchange Act. The Board has determined
that Mr. Appelrouth qualifies as an “audit committee financial expert” as that term is defined by Section 803B(2) of the
NYSE: American Company Guide and the rules and regulations of the SEC.
We
believe Dr. Mitchell and Mr. Appelrouth to be independent of management and free of any relationship that would interfere with their
exercise of independent judgment as members of this Committee. The principal functions of the Audit Committee are to (1) assist
the Board in fulfilling its oversight responsibility relating to the annual independent audit of our consolidated financial statements
and management’s assessment of internal control over financial reporting, the engagement of the independent registered public accounting
firm and the evaluation of the independent registered public accounting firm’s qualifications, independence and performance; (2)
select the independent registered public accounting firm, oversee the work of the independent registered public accounting firm,
pre-approve all auditing services of the independent registered public accounting firm and evaluate the independent registered public
accounting firm’s qualifications, independence and performance; (3) prepare the reports or statements as may be required
by NYSE American or the securities laws; (4) assist the Board in fulfilling its oversight responsibility relating to the integrity
of our financial statements and financial reporting process and our system of internal accounting and financial controls; (5)
discuss the financial statements and reports with management and the independent registered public accounting firm, including critical
accounting policies and practices, the Company’s disclosures in the Company’s Annual Report and any significant financial
reporting that arose in the preparation of the audited financial statements; and (6) oversee the Disclosure Control Committee.
The Audit Committee is authorized to engage independent counsel and other advisors as it deems necessary.
This
Audit Committee formally met four times in 2021 with all committee members in attendance. Our General Counsel and Chief Financial Officer
support the Audit Committee in its work. The full text of the Audit Committee’s Charter, as approved by the Board, is available
on our website: www.aimimmuno.com in the “Investor Relations” tab under “Corporate Governance”.
Audit
Committee Report
The
primary responsibility of the Audit Committee (the “Committee”) is to assist the Board in discharging its oversight responsibilities
with respect to financial matters and compliance with laws and regulations. The primary methods used by the Committee to fulfill its
responsibility with respect to financial matters are:
|
● |
To
appoint, evaluate, and as the Committee may deem appropriate, terminate, and replace the Company’s independent registered public
accounting firm; |
|
|
|
|
● |
To
monitor the independence of the Company’s independent registered public accounting firm; |
|
|
|
|
● |
To
determine the compensation of the Company’s independent registered public accounting firm; |
|
|
|
|
● |
To
pre-approve any audit services, and any non-audit services permitted under applicable law, to be performed by the Company’s
independent registered public accounting firm; |
|
|
|
|
● |
To
review the Company’s risk exposures, the adequacy of related controls and policies with respect to risk assessment and risk
management; |
|
|
|
|
● |
To
monitor the integrity of the Company’s financial reporting processes and systems of control regarding finance, accounting,
legal compliance and information systems; |
|
|
|
|
● |
To
facilitate and maintain an open avenue of communication among the Board, management and the Company’s independent registered
public accountants; and |
|
|
|
|
● |
To
provide oversight of the DCC to monitor their successful implementation of that Committee’s Charter, policies and procedures. |
In
discharging its responsibilities in 2021 relating to internal controls, accounting and financial reporting policies and auditing practices,
the Committee discussed with the Company’s independent registered public accounting firm, BDO USA, LLP (“BDO”), the
overall scope and process for its audit. The Committee regularly met with BDO, with and without management present, to discuss the results
of its examinations, the consideration of our internal controls and the overall quality of the Company’s financial reporting.
The
Committee also undertook all required discussions with BDO during the fiscal year ended December 31, 2021 of such matters required to
be discussed by the applicable requirements of the Public Company Accounting Oversight Board (the “PCAOB”), rules of the
SEC and other applicable regulations. The Committee received from BDO the written and oral disclosures and the letter required by applicable
requirements of the PCAOB regarding BDO’s communications with the Audit Committee concerning independence and discussed with BDO
the independence of their firm.
The
Committee has met and held discussions with management. The Committee has reviewed and discussed with management AIM’s audited
consolidated financial statements as of and for the fiscal year ended December 31, 2021, as well as the internal control requirements
of the Sarbanes-Oxley Act of 2002.
Based
on the reviews and discussions referred to above, the Committee recommended to the Board that the audited financial statements referred
to above be included in the Company’s Annual Report for the year ended December 31, 2021.
This
report is respectfully submitted by the current members of the Audit Committee of the Board.
Stewart
K. Appelrouth, Committee Chair
Dr.
William M. Mitchell
Board
Role in Risk Oversight
The
Board evaluates its leadership structure and role in risk oversight on a periodic basis. The Board determines what leadership structure
it deems appropriate based on factors such as the experience of the applicable individuals, the current business environment of our Company
and other relevant factors.
The
Board is also responsible for oversight of our risk management practices while management is responsible for the day-to-day risk management
processes. Our executive management team evaluates enterprise risks and shares their assessment of such risks with the Audit Committee
or the full Board for oversight. In addition, financial risks and our internal control environment are overseen by the Audit Committee,
and the Compensation Committee considers how risks taken by management could impact the value of executive compensation.
Code
of Ethics and Business Conduct
Our
Board adopted a Code of Ethics and Business Conduct for Officers, Directors, and employees. This Code has been presented and reviewed
by each officer, director, employee, agent, and key consultant. You may obtain a copy of this Code by visiting our website at www.aimimmuno.com
(Investor Relations / Corporate Governance) or by written request to our office at 2117 SW Highway 484, Ocala, FL 34473. Our Board is required to approve any waivers of the Code for Directors or executive Officers and we are required to disclose any such
waiver in a Current Report on Form 8-K within four business days. On an annual basis, this Code is reviewed and signed by each officer,
director, employee, and strategic consultant with none of the amendments constituting a waiver of provision of the Code of Ethics on
behalf of our Chief Executive Officer, Chief Financial Officer, or persons performing similar functions.
Communication
with the Board
Interested
parties wishing to contact the Board may do so by writing to the following address: AIM ImmunoTech Board of Directors, c/o Peter W. Rodino
III, Corporate Secretary, 2117 SW Highway 484, Ocala, Florida 34473. All letters received will be categorized and processed by the Corporate
Counsel or Secretary, and then forwarded to the Board.
Director
Attendance at Annual Meetings of Stockholders
Directors
are encouraged, but not required, to attend the Annual Meeting absent unusual circumstances, although we have no formal policy on the
matter. All of the directors attended the 2021 Annual Meeting of Stockholders.
INFORMATION
CONCERNING EXECUTIVE OFFICERS
The
following sets forth biographical information about each of our executive officers as of the date of this report:
Name |
|
Age |
|
Position |
Thomas
K. Equels, M.S., J.D. |
|
70 |
|
Executive
Vice Chairman of the Board, Chief Executive Officer and President |
Peter
W. Rodino, III, Esq. |
|
70 |
|
Chief
Operating Officer, Executive Director Gov’t Relations, General Counsel and Secretary |
Robert
Dickey, IV |
|
66 |
|
Chief
Financial Officer |
THOMAS
K. EQUELS, M.S., J.D., has been a director and serves as our Executive Vice Chairman (since 2008), Chief Executive Officer (since
2016) and President (since 2015). Mr. Equels was the owner of, and former President and Managing Director of, the Equels Law Firm headquartered
in Miami, Florida that focused on litigation. For over a quarter century, Mr. Equels represented national and state governments as well
as companies in the banking, insurance, aviation, pharmaceutical and construction industries. Mr. Equels received his Juris Doctor degree
with high honors from Florida State University. He received his Bachelor of Science, summa cum laude, from Troy University and also obtained
his Masters’ of Science Degree from Troy University. Mr. Equels began his professional career as a military pilot. He served in
Vietnam and was awarded two Distinguished Flying Crosses, the Bronze Star, the Purple Heart, and fifteen Air Medals. In 2012, he was
Knighted by Pope Benedict.
PETER
W. RODINO, III, Esq., was a director of the Company from July 2013 until September 30, 2016, when Mr. Rodino resigned as a member
of our Board to permit him to serve AIM in a new capacity. Effective October 1, 2016, AIM retained Mr. Rodino as Executive Director for
Governmental Relations, and as General Counsel and, as of October 16, 2019, Mr. Rodino assumed the role of Chief Operating Officer. Mr.
Rodino has been AIM’s Secretary since November 2016. Mr. Rodino has broad legal, financial, and executive experience. In addition
to being President of Rodino Consulting LLC and managing partner at several law firms during his many years as a practicing attorney,
he served as Chairman and CEO of Crossroads Health Plan, the first major Health Maintenance Organization in New Jersey. He also has had
experience as an investment executive in the securities industry and acted as trustee in numerous Chapter 11 complex corporate reorganizations.
Previously, as founder and president of Rodino Consulting, Mr. Rodino provided business and government relations consulting services
to smaller companies with a focus on helping them develop business plans, implement marketing strategies and acquire investment capital.
Mr. Rodino holds a B.S. in Business Administration from Georgetown University and a J.D. degree from Seton Hall University.
ROBERT
DICKEY, IV has been our Chief Financial Officer since April 4, 2022. Mr. Dickey has more than 25 years of experience in C-suite financial
leadership for life science and medical device companies, both private and public, ranging from preclinical development to commercial
operations and across a variety of disease areas and medical technologies. Mr. Dickey has served as Managing Director at Foresite Advisors
since March 2020 assuming responsibility for CFO advisory, financial analysis, capital raising, and transactional support/execution
for public offerings and M&A services at life science companies and was previously a Managing Director at Danforth Advisors from
August 2018 to March 2020. Both Foresite Advisors and Danforth Advisors provide financial support and investment advisory services. Mr.
Dickey served as a member on the board of directors at Emmaus Life Sciences, a biopharmaceutical company, from July 2019 to August 2022;
served as a member on the board of directors at Sanuthera, Inc., a privately held medical device company, from 2013 to 2017, and was
employed as Chief Financial Officer of Motif Bio Plc., a NASDAQ and London AIM exchange-listed antibiotics company, from January 2017
to February 2018. Earlier in his career, Mr. Dickey spent 18 years in investment banking, primarily at Lehman Brothers, with a background
split between mergers and acquisitions and capital markets transactions. Mr. Dickey was a senior vice president of the Company from 2008
until 2013. Throughout his career he has demonstrated C-level (CFO, COO and CEO) and Board level experience in public, private, revenue
stage and development stage life sciences and medical device companies, and has played a leading role in two start-ups. His prior career
as an investment banker included 14 years at Lehman Brothers. Mr. Dickey is experienced in all stages of the business lifecycle, including
start-up, high-growth and turnarounds, and in building businesses and achieving an exit. He also has international experience, expertise
in public and private financings, M&A, partnering/licensing transactions, project management and Chapter 11 reorganizations, as well
as interacting with boards, VC’s, shareholders and Wall Street. Dickey has an MBA from The Wharton School and an AB from
Princeton University.
DELINQUENT
SECTION 16(A) REPORTS
Section
16(a) of the Exchange Act requires directors, officers and beneficial owners of more than 10 percent of the Company’s common stock
to file reports of beneficial ownership and reports of changes in beneficial ownership with the SEC. Such persons are required by SEC
regulations to furnish the Company with copies of all Section 16(a) reports they file. Based solely on review of the reports received
by the Company, and on written representations from certain reporting persons, the Company believes the persons subject to Section 16(a)
reporting complied with applicable SEC filing requirements during the fiscal year ended December 31, 2021.
OTHER
MATTERS
Solicitation
of Proxies
The
Company will bear the costs of calling and holding the Annual Meeting and the Board’s and other participants’ solicitation
of proxies therefor. These costs will include, among other items, the expense of preparing, assembling, printing, and mailing the proxy
materials to stockholders of record and beneficial owners, and reimbursements paid to brokerage firms, banks, and other fiduciaries for
their reasonable out-of-pocket expenses for forwarding proxy materials to stockholders and obtaining voting instructions of beneficial
owners. In addition to soliciting proxies by mail, directors, officers, and certain regular employees may solicit proxies on behalf of
the Board, without additional compensation, personally or by telephone. The regular employees will be administrative personnel. We may
also solicit proxies by e-mail from stockholders who are our employees or who previously requested to receive proxy materials electronically.
As a result of the potential proxy solicitation by the Dissident Group, we may incur additional costs in connection with our solicitation
of proxies. The Company has retained Morrow Sodali to solicit proxies. Under our agreement with Morrow Sodali, Morrow Sodali will receive
a fee of up to $125,000 plus the reimbursement of reasonable expenses. Morrow Sodali expects that approximately 15 of its employees will
assist in the solicitation. Morrow Sodali will solicit proxies by mail, telephone, facsimile and/or email. Excluding amounts normally
expended by our Company for a solicitation for an election of directors in the absence of a contest and costs represented by salaries
and wages of our Company’s employees and officers, our aggregate expenses, including those of Morrow Sodali, related to our solicitation
of proxies are expected to be approximately $2,500,000, of which approximately $1,100,000 has been incurred as of the date
of this Proxy Statement. These expenses are expected to include additional fees payable to our proxy solicitor; fees of outside counsel
and other advisors to advise our Company in connection with the solicitation and litigation incidental to the solicitation; and
the costs of retaining an independent inspector of election.
If
you have any questions or require any assistance in voting your shares, please call:
Morrow
Sodali
Stockholders
Call Toll Free: (800) 662-5200
Banks,
Brokers, Trustees and Other Nominees Call Collect: (203) 658-9400
Stockholder
List
The
Company’s list of stockholders as of the close of business on the Record Date will be available for inspection by the Company’s
stockholders for at least ten days prior to the Annual Meeting for any purpose germane to the Annual Meeting. If you wish to inspect
the stockholder list, please submit your request, along with proof of ownership, by email to Dianne Will at stockholderslist@aimimmuno.com
to schedule an appointment during ordinary business hours. The stockholder list will also be open to the examination of any stockholder
during the Annual Meeting.
Householding
Of Materials
Some
banks, brokers and other nominee record holders may be participating in the practice of “householding” proxy statements.
This means that only one copy of this Proxy Statement will be, or may have been, sent to multiple Stockholders in the same household
unless we received contrary instructions from any stockholder in that household. We will promptly deliver a separate copy of this Proxy
Statement to any stockholder upon written or oral request to: AIM ImmunoTech Inc., 2117 SW Highway 484, Ocala FL 34473, Attention:
Secretary or by phone at (352) 448-7797. Any stockholder who wants to receive a separate copy of this Proxy Statement, or of the
Company’s proxy statements or annual reports in the future, or any stockholder who is receiving multiple copies and would
like to receive only one copy per household, should contact the stockholder’s bank, broker, or other nominee record holder,
or the stockholder may contact us at the address and phone number above.
Deadlines
for Notice of Stockholder Actions to be Considered at the 2023 Annual Meeting
Shareholder
Proposals under Rule 14a-8
Pursuant
to the various rules promulgated by the SEC, stockholders interested in submitting a proposal to be considered for inclusion in our proxy
materials and for presentation at the Company’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”) may
do so by following the procedures set forth in Rule 14a-8 under the Exchange Act. In general, to be eligible for inclusion in our proxy
materials, Rule 14a-8 shareholder proposals must be received by the Company’s Corporate Secretary at the Company’s principal
executive officers (located at 2117 SW Highway 484, Ocala, Florida 34473) no later than May 22, 2023.
Stockholder
Proposals
Any
stockholder of record of the Company who desires to submit a proposal of business (other than shareholder proposals in accordance
with Rule 14a-8) for action at the 2023 Annual Meeting, must deliver written notice of an intent to make such proposal of business
to the Company’s Corporate Secretary at c/o Corporate Secretary, AIM ImmunoTech Inc., 2117 SW Highway 484, Ocala, Florida
34473 no earlier than on August 5, 2023, and no later than on September 4, 2023. However, if the date of the 2023 Annual Meeting is
more than 30 days before or after the anniversary of the date of the prior year’s annual meeting, then such notice must be
delivered to the Company’s Secretary no later than the close of business of the 10th day following the day on which such
notice of the date of the 2023 Annual Meeting was mailed or public disclosure of the date of the 2023 Annual Meeting was made,
whichever occurs first. Any such notice must also comply with the timing, disclosure, procedural and other requirements as set forth
in the Bylaws.
Stockholder
Nominations for Director Candidates
Any
stockholder of record of the Company who desires to nominate one or more director candidates at the 2023 Annual Meeting or submit a
proposal of business (other than shareholder proposals in accordance with Rule 14a-8) for action at the 2023 Annual Meeting, must
deliver written notice of an intent to make such director nomination and/or make such proposal of business to the Company’s
Corporate Secretary at c/o Corporate Secretary, AIM ImmunoTech Inc., 2117 SW Highway 484, Ocala, Florida 34473 no earlier than on
July 6, 2023, and no later than on August 5, 2023. However, if the date of the 2023 Annual Meeting is more than 30 days before or
after the anniversary of the date of the prior year’s annual meeting, then such notice must be delivered to the
Company’s Secretary no later than the close of business of the 10th day following the day on which such notice of the date of
the 2023 Annual Meeting was mailed or public disclosure of the date of the 2023 Annual Meeting was made, whichever occurs first. Any
such notice must also comply with the timing, disclosure, procedural and other requirements as set forth in the Bylaws.
In
addition to satisfying the requirements under the Bylaws described in the immediately preceding paragraph, to comply with the
universal proxy rules under the Exchange Act, any stockholder who intends to solicit proxies in support of director nominees other
than the Board’s nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act
no later than September 4, 2023. However, if the date of the 2023 Annual Meeting is more than 30 days before or after the
anniversary of the date of the prior year’s annual meeting, then such notice must be delivered by the later of (x) the 10th
day following the day the public announcement of the date of the 2023 Annual Meeting is first made by the Company and (y) the date
which is 60 days prior to the date of the 2023 Annual Meeting.
Annual
Report
Our
Annual Report is being furnished together with this Proxy Statement. You can review and download a copy of our Annual Report by accessing
our website, https://aimimmuno.com/sec-filings, or stockholders may request paper copies, without charge, by writing to AIM ImmunoTech
Inc., 2117 SW Highway 484, Ocala, FL 34473, Attention: Secretary. The Company’s filings with the SEC also are available to the
public at the SEC’s website at www.sec.gov. The information on the Company’s website and the SEC’s website are not
part of this Proxy Statement.
Cautionary
Note Regarding Forward-Looking Statements
This
Proxy Statement includes 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 SEC. You are cautioned not to
place undue reliance on these forward-looking statements, which speak only as of the date of this Proxy Statement. 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 Proxy Statement.
PROPOSALS
TO STOCKHOLDERS
PROPOSAL
1
ELECTION
OF DIRECTORS
At
the Annual Meeting, all three directors of our three-member Board are to be elected to serve until the next Annual Meeting of Stockholders,
or until each director’s respective earlier resignation, removal from office, death or incapacity.
Unless
otherwise specified, the enclosed WHITE proxy card will be voted in favor of the election of Thomas K. Equels, William M. Mitchell
and Stewart L. Appelrouth. Information is furnished below with respect to all nominees of the Board.
The
Board has examined the relationship between each of our non-employee directors and the Company and has determined that each of Messrs.
Appelrouth and Mitchell qualifies as an “independent” director under the independence standards of the NYSE American rules
and SEC rules. Mr. Equels does not qualify as an independent director because he is the Chief Executive Officer of the Company.
We
believe our directors represent a desirable diversity of backgrounds, skills, education and experiences, and they all share the personal
attributes of dedication to be effective directors. In recommending Board candidates, Corporate Governance and Nomination Committee considers
a candidate’s: (1) general understanding of elements relevant to the success of a publicly traded company in the current business
environment; (2) understanding of our business; and (3) diversity in educational and professional background. The Committee also gives
consideration to a candidate’s judgment, competence, dedication and anticipated participation in Board activities along with experience,
geographic location and special talents or personal attributes. The following are qualifications, experience and skills for Board members
which are important to AIM’s business and its future:
Leadership
Experience: We seek directors who have demonstrated strong leadership qualities. Such leaders bring diverse perspectives and broad
business insight to our Company. The relevant leadership experience that we seek includes a past or current leadership role in a large
or entrepreneurial company, a senior faculty position at a prominent educational institution or a past elected or appointed senior government
position.
Industry
or Academic Experience: We seek directors who have relevant industry experience, both with respect to the disease areas where we
are developing new therapies as well as with the economic and competitive dynamics of pharmaceutical markets, including those in which
our drugs will be prescribed.
Scientific,
Legal or Regulatory Experience: Given the highly technical and specialized nature of biotechnology, we desire that certain of our
directors have advanced degrees, as well as drug development experience. Since we are subject to substantial regulatory oversight, both
here and abroad by the FDA and other agencies, we also desire directors who have legal or regulatory experience.
Finance
Experience: We believe that our directors should possess an understanding of finance and related reporting processes, particularly
given the complex budgets and long timelines associated with drug development programs.
Each
nominee has provided a consent to being named as a nominee of the Board in a proxy statement and stating that such nominee consents to
serve if elected as a director, and the Board has no reason to believe that any nominee will be unable to serve. However, if, before
the election, any nominee is unable to serve or for good cause will not serve (a situation that we do not anticipate), the proxy holders
will vote the proxies for the remaining nominees and for substitute nominees chosen by the Board (unless the Board reduces the number
of directors to be elected). If any substitute nominees are designated, we will file an amended proxy statement that, as applicable,
identifies each substitute nominee, discloses that such nominee has consented to being named in the revised proxy statement and to serve
if elected, and includes certain biographical and other information about such nominee required by the rules of the SEC.
The
Board recommends using the enclosed WHITE proxy card to vote FOR ALL of the Board’s nominees for director. Jonathan
Jorgl has notified the Company that he and the other members of the Dissident Group intend to seek your proxy to vote in favor of Mr.
Jorgl’s purported nominees. Accordingly, you may receive solicitation materials from the Dissident Group seeking your proxy to
vote in favor of Mr. Jorgl’s purported nominees.
The
Company has provided you with the enclosed WHITE proxy card. Our Board recommends that you vote FOR ALL of the nominees
proposed by our Board. If you receive any proxy materials other than from the Company, our Board strongly recommends that you DISREGARD
any such materials. If you vote, or have already voted, using a proxy card sent to you by Mr. Jorgl or another member of the Dissident
Group, you have every right to change your vote and we urge you to revoke that proxy by voting FOR ALL of our Board’s nominees
by submitting the enclosed WHITE proxy card. Only your latest dated vote will be counted.
The
following material contains information concerning the Board’s nominees, including their period of service as a director, their
recent employment, other directorships, including those held during the past five years with a public company or registered investment
company, age as of the Annual Meeting, and director qualifications relevant to the Board’s determination that each nominee should
serve as a director in light of our business as an immuno-pharma company and our structure.
In
addition to the information set forth below, Appendix A sets forth information relating to our directors, nominees for directors,
and certain of our officers who may be considered “participants” in our solicitation under applicable SEC rules by reason
of their position as directors of the Company, as nominees for directors, or because they may be soliciting proxies on our behalf.
NOMINEES
FOR ELECTION AS DIRECTOR
THOMAS
K. EQUELS, Esq., has been a director and serves as the Company’s Executive Vice Chairman (since 2008), Chief Executive Officer
(since 2016) and President (since 2015). Mr. Equels was the owner of and former President and Managing Director of the Equels Law Firm
headquartered in Miami, Florida that focused on litigation. For over a quarter century, Mr. Equels represented national and state governments
as well as companies in the banking, insurance, aviation, pharmaceutical and construction industries. Mr. Equels received his Juris Doctor
degree with high honors from Florida State University. He received his Bachelor of Science, summa cum laude, from Troy University and
also obtained his Master of Science Degree from Troy University. Mr. Equels began his professional career as a military pilot. He served
in Vietnam and was awarded two Distinguished Flying Crosses, the Bronze Star, the Purple Heart, and fifteen Air Medals. In 2012, he was
Knighted by Pope Benedict.
THOMAS
K. EQUELS, Esq. - Director Qualifications:
|
● |
Leadership
Experience – Military, Owner and former President, Managing Director of Equels Law Firm, Court appointed receiver in numerous
industries; |
|
|
|
|
● |
Industry
Experience – legal counsel, General Counsel, CFO and CEO to the Company; and |
|
|
|
|
● |
Scientific,
Legal or Regulatory Experience – Law degree with over 25 years as a practicing attorney specializing in litigation,
development of clinical trials, creating intellectual property concepts, and established plan to finance drug development. |
WILLIAM
M. MITCHELL, M.D., Ph.D., has been a director since July 1998 and Chairman of the Board since February 2016. Dr. Mitchell is a Professor
of Pathology at Vanderbilt University School of Medicine and is a board-certified physician. Dr. Mitchell earned a M.D. from Vanderbilt
and a Ph.D. from Johns Hopkins University, where he served as House Officer in Internal Medicine, followed by a Fellowship at its School
of Medicine. Dr. Mitchell has published over 200 papers, reviews and abstracts that relate to viruses, anti-viral drugs, immune responses
to HIV infection, and other biomedical topics. Dr. Mitchell has worked for and with many professional societies that have included the
American Society of Investigative Pathology, the International Society for Antiviral Research, the American Society of Clinical Oncology,
the American Society of Biochemistry and Molecular Biology, the American Chemical Society, and the American Society of Microbiology.
Dr. Mitchell is a member of the American Medical Association. He has served on numerous government review committees, among them the
Centers for Disease Control and Prevention (CDC) and the National Institutes of Health, including the initial AIDS and Related Research
Review Group. Dr. Mitchell previously served as one of the Company’s directors from 1987 to 1989.
WILLIAM
M. MITCHELL, M.D., Ph.D. - Director Qualifications:
|
● |
Leadership
Experience – Professor at Vanderbilt University School of Medicine. He was a member of the Board of Directors of Chronix Biomedical,
a company involved in next generation DNA sequencing for medical diagnostics, from 2006 until its acquisition/merger by the public
company, Oncocyte, in April 2021 and was the former Chairman of its Medical Advisory Board. Additionally, he has served on multiple
governmental review committees of the National Institutes of Health, Centers for Disease Control and Prevention and for the European
Union, including key roles as Chairman; |
|
|
|
|
● |
Academic
Experience – Well published medical researcher with extensive investigative experience on virus and immunology issues
relevant to the Company’s scientific business; and |
|
|
|
|
● |
Scientific,
Legal or Regulatory Experience – M.D., Ph.D. and professor at a top-ranked school of medicine, and inventor of record
on numerous U.S. and international patents who is experienced in regulatory affairs through filings with the FDA. |
STEWART
L. APPELROUTH, CPA was appointed as a director of the Company and head of the Audit Committee in August 2016 and has been a certified
public accountant and partner at Appelrouth Farah & Co., P.A., Certified Public Accountants and Advisors since he co-founded the
firm in 1985. Appelrouth Farah & Co. joined Citrin Cooperman Advisors, LLC in March 2022. Mr. Appelrouth is also a certified forensic
accountant and possesses 40 years of experience in Accounting and Consulting. He is a member of or has affiliations with the AICPA, American
College of Forensic Examiners, FINRA Arbitrator, Association of Certified Fraud Examiners, Florida Bar Grievance Committee, Florida Institute
of Certified Public Accountants and InfraGard Member, a national information sharing program between the Federal Bureau of Investigation
and the private sector. Mr. Appelrouth graduated from Florida State University in 1975 and received his master’s degree in Finance
from Florida International University in 1980.
STEWART
L. APPELROUTH - Director Qualifications:
|
● |
Leadership
Experience – has served in leadership positions on numerous private and non-profit boards of directors and other organizations; |
|
|
|
|
● |
Industry
Experience – Partner at certified public accounting and advisory firm; Certified Public Accountant and Certified Fraud Examiner; |
|
|
|
|
● |
Regulatory
Experience – FINRA Arbitrator. |
|
|
|
|
● |
Financial
Expert – over 40 years of accounting and audit experience. |
THE
BOARD RECOMMENDS A VOTE ON THE WHITE PROXY CARD “FOR ALL” OF THE BOARD’S NOMINEES (THOMAS K. EQUELS,
WILLIAM M. MITCHELL AND STEWART L. APPELROUTH) TO BE ELECTED TO SERVE AS DIRECTORS ON THE BOARD.
PROPOSAL
2
RATIFICATION
OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The
Board, upon the recommendation of the Audit Committee, has appointed the firm of BDO USA, LLP to serve as the independent registered
public accounting firm of AIM for the fiscal year ending December 31, 2022. BDO has served as our independent registered public accounting
firm since January 19, 2021. Our Bylaws do not require that the stockholders ratify the appointment of BDO as our independent registered
public accounting firm. However, as a matter of good corporate practice, the Board is requesting that the stockholders ratify the appointment
of BDO as a means of soliciting stockholders’ opinions.
All
audit and professional services are approved in advance by the Audit Committee to assure such services do not impair the auditor’s
independence from us. The total fees by BDO for 2021 were $485,000 and total fees for 2020 were $353,500.
The
following table shows the aggregate fees for professional services rendered during the year ended December 31, 2021 and December 31,
2020.
| |
Amount
($) | |
| |
2021 | | |
2020 | |
Description of Fees: | |
| | | |
| | |
Audit Fees | |
$ | 412,000 | | |
$ | 353,500 | |
Audit-Related Fees | |
| — | | |
| — | |
Tax Fees | |
| 73,000 | | |
| — | |
All Other Fees | |
| — | | |
| — | |
Total | |
$ | 485,000 | | |
$ | 353,500 | |
Audit
Fees
Audit
fees include the audit of our annual financial statements and the review of our financial statements included in our quarterly reports
and services in connection with statutory and regulatory filings.
Audit-Related
Fees
Audit-related
fees represent all fees other than Audit Fees
and Tax Fees. There were no audit-related fees during the past two fiscal years.
Tax
Fees
Tax
fees include tax compliance, tax advice, and tax planning.
The
Audit Committee has determined that BDO’s rendering of these audit-related services and all other fees were compatible with maintaining
auditor’s independence. The Board considered BDO to be well qualified to serve as our independent public accountants.
The
Audit Committee pre-approves all auditing and accounting services and the terms thereof (which may include providing comfort letters
in connection with securities underwriting) and non-audit services (other than non-audit services prohibited under Section 10A(g) of
the Exchange Act or the applicable rules of the SEC or the Public Company Accounting Oversight Board) to be provided to us by the independent
auditor; provided, however, the pre-approval requirement is waived with respect to the provisions of non-audit services for us if the
“de minimis” provisions of Section 10A (i)(1)(B) of the Exchange Act are satisfied. This authority to pre-approve non-audit
services may be delegated to one or more members of the Audit Committee, who shall present all decisions to pre-approve an activity to
the full Audit Committee at its first meeting following such decision.
Ratification
If
the stockholders do not ratify the appointment, the Audit Committee will consider any information submitted by the stockholders in determining
whether to retain BDO as the Company’s independent registered public accounting firm for 2022. Even if the appointment of BDO is
ratified, the Audit Committee, in its discretion, may change the appointment at any time during the year if it determines that a change
would be in the best interests of the Company and its stockholders.
Representatives
from BDO are not expected to be present at the Annual Meeting.
THE
BOARD RECOMMENDS A VOTE ON THE WHITE PROXY CARD “FOR” THE RATIFICATION OF THE SELECTION OF BDO USA, LLP AS
THE COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022.
PROPOSAL
3
ADVISORY
(NON-BINDING) VOTE APPROVING EXECUTIVE COMPENSATION
We
are asking our stockholders to provide advisory approval of the compensation of our Named Executive Officers (“NEOs”), as
we have described at length below. While this vote is advisory and not binding on our Company relating to the compensation of our NEOs,
your vote will provide investor sentiment to our Compensation Committee regarding our executive compensation philosophy, policies and
practices. As a result of the vote, the Compensation Committee will be able to consider this sentiment when determining future executive
compensation.
Objectives
and Philosophy of Executive Compensation
The
primary objectives of the Compensation Committee with respect to executive compensation are to attract and retain the most talented and
dedicated executives possible, to tie annual and long-term cash and stock incentives to achievement of measurable performance objectives,
and to align executives’ incentives with stockholder value creation. To achieve these objectives, the Compensation Committee expects
to implement and maintain compensation plans that tie a substantial portion of executives’ overall compensation to key strategic
financial and operational goals such as the establishment and maintenance of key strategic relationships, the development of our products,
the identification and advancement of additional products, and the performance of our common stock price. The Compensation Committee
evaluates individual executive performance with the goal of setting compensation at levels the Compensation Committee believes are comparable
with executives in other companies of similar size and stage of development operating in the biotechnology industry while taking into
account our relative performance, our own strategic goals, governmental regulations, and the results of stockholder advisory votes regarding
executive compensation.
Your
vote is requested. We believe that the information we’ve provided within the “Executive Compensation” section of this
proxy statement demonstrates that our executive compensation program was designed appropriately and is working to ensure management’s
interests are aligned with our stockholders’ interests to support long-term value creation. Accordingly, the Board recommends that
stockholders approve the following advisory resolution:
RESOLVED,
that the stockholders of AIM ImmunoTech Inc. approve, on an advisory basis, the compensation of the individuals identified in the Summary
Compensation Table, as disclosed in the AIM ImmunoTech Inc. Proxy Statement pursuant to the compensation disclosure rules of the SEC,
including Item 402 of Regulation S-K (which disclosure includes the compensation tables and the accompanying footnotes and narratives
within the “EXECUTIVE COMPENSATION” section of this Proxy Statement).
THE
BOARD RECOMMENDS A VOTE ON THE WHITE PROXY CARD “FOR” THE APPROVAL OF THE COMPENSATION OF THE COMPANY’S
NAMED EXECUTIVE OFFICERS.
EXECUTIVE
COMPENSATION
The
following table provides information on the compensation during the fiscal years ended December 31, 2021 and 2020 of Thomas Equels, our
Chief Executive Officer and President, Ellen Lintal, our former Chief Financial Officer, and Peter Rodino, our Chief Operating Officer,
General Counsel and Secretary, constituting the Company’s Named Executive Officers, based on the year ended December 31, 2021.
Summary
Compensation Table
Name
& Principal Position | |
Year | | |
Salary | | |
Option
Awards $ (2) | | |
Non-Equity
Incentive Plan Compensation $(3) | | |
All
Other Compensation $(4) | | |
Total
$ | |
Thomas Equels(1) | |
| 2021 | | |
| 850,000 | | |
| 473,038 | | |
| 352,500 | | |
| 86,016 | | |
| 1,761,554 | |
CEO & President | |
| 2020 | | |
| 806,599 | | |
| 1,139,267 | | |
| 652,000 | | |
| 65,509 | | |
| 2,663,375 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Ellen Lintal | |
| 2021 | | |
| 350,000 | | |
| 132,346 | | |
| 102,500 | | |
| 49,892 | | |
| 634,738 | |
Former
CFO(4) | |
| 2020 | | |
| 239,583 | | |
| 111,616 | | |
| 177,000 | | |
| 25,403 | | |
| 553,602 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Peter Rodino | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
COO, General Counsel | |
| 2021 | | |
| 425,000 | | |
| 132,346 | | |
| 102,500 | | |
| 57,949 | | |
| 717,795 | |
& Secretary | |
| 2020 | | |
| 394,792 | | |
| 111,616 | | |
| 244,500 | | |
| 42,570 | | |
| 793,478 | |
(1) |
Mr.
Equels also serves as a director on our Board but did not receive any compensation for his service as a director in fiscal year 2021. |
|
|
(2) |
The
amounts shown in the Option Awards column include the full grant date fair value of options awarded to our Named Executive Officers
in fiscal years 2021 and 2020. The value was computed in accordance with the requirements of FASB ASC Topic 718, but excluding any
impact of estimated forfeiture rates as required by SEC regulations. The assumptions used in the calculation of these amounts are
discussed in Note 6 to the Company’s consolidated financial statements included in the Form 10-K. These amounts reflect our
accounting expense for these stock options and do not correspond to the actual value that may be recognized by our named executive
officer. |
|
|
(3) |
The
amounts shown in the Non-Equity Incentive Plan Compensation column reflect annual performance-based cash bonuses paid pursuant to
our annual bonus plan. |
|
|
(4) |
Mr.
Equels’ All Other Compensation for fiscal year 2021 consists of: |
| |
2021 | |
Life & Disability Insurance | |
$ | 22,037 | |
Healthcare Insurance | |
| 26,479 | |
Car Expenses/Allowance | |
| 18,000 | |
401(k) Matching Funds | |
| 19,500 | |
Total | |
$ | 86,016 | |
Ms.
Lintal’s All Other Compensation for fiscal year 2021 consists of:
| |
2021 | |
Life & Disability Insurance | |
$ | 3,014 | |
Healthcare Insurance | |
| 12,978 | |
Car Expenses/Allowance | |
| 14,400 | |
401(k) Matching Funds | |
| 19,500 | |
Total | |
$ | 49,892 | |
Mr.
Rodino’s All Other Compensation for fiscal year 2021 consists of:
| |
2021 | |
Life & Disability Insurance | |
$ | 2,521 | |
Healthcare Insurance | |
| 21,528 | |
Car Expenses/Allowance | |
| 14,400 | |
401(k) Matching Funds | |
| 19,500 | |
Total | |
$ | 57,949 | |
(5) |
On April 4, 2022, the Company entered into a consulting agreement
with Ms. Lintal, who stepped down as the Company’s Chief Financial Officer on April 4, 2022. For additional information about the
consulting agreement, see “Consulting Agreement” below. |
Outstanding
Equity Awards at 2021 Fiscal Year End
| |
Option
Awards | |
Name | |
Number
of Securities Underlying Unexercised Options (#) Exercisable | | |
Number
of Securities Underlying Unexercised Options (#) Unexercisable | | |
Options
Exercise Price ($) | | |
Option
Expiration Date | |
Thomas Equels | |
| 568 | | |
| — | | |
| 163.68 | | |
| 6/6/2023 | |
President and Chief Executive Officer | |
| 284 | | |
| — | | |
| 132.00 | | |
| 8/2/2023 | |
| |
| 568 | | |
| — | | |
| 190.08 | | |
| 6/6/2024 | |
| |
| 568 | | |
| — | | |
| 132.00 | | |
| 6/8/2025 | |
| |
| 568 | | |
| — | | |
| 73.92 | | |
| 6/8/2026 | |
| |
| 6,818 | | |
| — | | |
| 24.64 | | |
| 6/8/2027 | |
| |
| 323 | | |
| — | | |
| 21.56 | | |
| 6/15/2027 | |
| |
| 323 | | |
| — | | |
| 21.56 | | |
| 6/30/2027 | |
| |
| 412 | | |
| — | | |
| 21.12 | | |
| 7/15/2027 | |
| |
| 472 | | |
| — | | |
| 18.48 | | |
| 7/31/2027 | |
| |
| 485 | | |
| — | | |
| 18.04 | | |
| 8/15/2027 | |
| |
| 556 | | |
| — | | |
| 15.84 | | |
| 8/31/2027 | |
| |
| 8,446 | | |
| — | | |
| 16.28 | | |
| 2/13/2028 | |
| |
| 2,841 | | |
| — | | |
| 16.72 | | |
| 4/12/2028 | |
| |
| 6,818 | | |
| — | | |
| 13.20 | | |
| 5/16/2028 | |
| |
| 5,682 | | |
| — | | |
| 13.20 | | |
| 5/16/2028 | |
| |
| 3,666 | | |
| — | | |
| 13.64 | | |
| 7/18/2028 | |
| |
| 6,457 | | |
| — | | |
| 9.68 | | |
| 10/17/2028 | |
| |
| 23 | | |
| — | | |
| 9.68 | | |
| 11/14/2028 | |
| |
| 9,685 | | |
| — | | |
| 9.68 | | |
| 1/28/2029 | |
| |
| 300,000 | | |
| — | | |
| 3.05 | | |
| 8/12/2030 | |
| |
| 300,000 | | |
| — | | |
| 1.96 | | |
| 11/11/2030 | |
| |
| — | | |
| 300,000 | (1) | |
| 1.71 | | |
| 11/11/2031 | |
Total | |
| 655,563 | | |
| 300,000 | | |
| | | |
| | |
| |
| | | |
| | | |
| | | |
| | |
Ellen Lintal | |
| 23 | | |
| — | | |
| 9.68 | | |
| 11/14/2029 | |
Former Chief Financial
Officer | |
| 75,000 | | |
| | | |
| 1.85 | | |
| 12/9/2030 | |
| |
| | | |
| 100,000 | (2) | |
| 1.44 | | |
| 11/30/2031 | |
Total | |
| 75,023 | | |
| 100,000 | | |
| — | | |
| — | |
| |
| | | |
| | | |
| | | |
| | |
Peter Rodino | |
| 285 | | |
| — | | |
| 136.00 | | |
| 8/02/2023 | |
| |
| 285 | | |
| — | | |
| 68.65 | | |
| 6/21/2026 | |
COO, General Counsel and Secretary | |
| 151 | | |
| — | | |
| 21.56 | | |
| 6/15/2027 | |
| |
| 151 | | |
| — | | |
| 21.56 | | |
| 6/30/2027 | |
| |
| 192 | | |
| — | | |
| 21.12 | | |
| 7/15/2027 | |
| |
| 220 | | |
| — | | |
| 18.48 | | |
| 7/31/2027 | |
| |
| 226 | | |
| — | | |
| 18.04 | | |
| 8/15/2027 | |
| |
| 259 | | |
| — | | |
| 15.84 | | |
| 8/31/2027 | |
| |
| 3,941 | | |
| — | | |
| 16.28 | | |
| 2/13/2028 | |
| |
| 2,273 | | |
| — | | |
| 16.72 | | |
| 4/12/2028 | |
| |
| 2,652 | | |
| — | | |
| 13.20 | | |
| 5/16/2028 | |
| |
| 1,711 | | |
| — | | |
| 13.64 | | |
| 7/18/2028 | |
| |
| 3,013 | | |
| — | | |
| 9.68 | | |
| 10/17/2028 | |
| |
| 23 | | |
| — | | |
| 9.68 | | |
| 11/14/2028 | |
| |
| 4,520 | | |
| — | | |
| 9.68 | | |
| 1/28/2029 | |
| |
| 75,000 | | |
| — | | |
| 1.85 | | |
| 12/9/2030 | |
| |
| — | | |
| 100,000 | (3) | |
| 1.44 | | |
| 11/30/2031 | |
Total | |
| 94,902 | | |
| 100,000 | | |
| — | | |
| — | |
(1) |
The 300,000
options will vest in full on November 11, 2022, generally subject to Mr. Equels’ continued employment through the vesting date.
Please see “Stock Options” below. |
(2) |
The 100,000
options will vest in full on November 30, 2022. Pursuant to Ms.
Lintal’s consulting agreement, the options she held as of her termination date did not expire and remain outstanding and eligible
to vest subject to their terms. |
(3) |
The
100,000 options will vest in full on November
30, 2022, generally subject to Mr. Rodino’s continued employment through the vesting date. Please see “Stock
Options” below. |
Stock
Options
We
grant stock options to our NEOs pursuant to the 2018 Equity Incentive Plan. Generally, the options will expire on the tenth anniversary
of the grant date, and the exercise price is the closing price of our common stock on the NYSE American on the trading day immediately
prior to the grant date. The options vest on the one-year anniversary of the grant date and can be exercised for cash or in a cashless
manner utilizing any appreciation in the market price of the stock over the exercise price (pursuant to a formula set forth in the option
award agreement). Upon a holder’s termination without Cause (as defined in the 2018 Equity Incentive Plan), the options terminate
on the earlier of (x) three months following the termination date and (y) the expiration of the option’s term. Upon a holder’s
termination due to death or disability, the options expire on the earlier of (x) 12 months (in the case of disability) or 18 months (in
the case of death) following the termination date and (y) the expiration of the option’s term. Upon a holder’s termination
for Cause, the options are forfeited for no consideration. The options are currently underwater and are not providing the value shown
in the Summary Compensation Table, which is a fair value calculated at the time of grant using the Black Scholes model, rather than the
amount earned by our NEOs from the option award.
Employment
Agreements
We
are party to employment agreements with each of our NEOs, which provide for certain benefits upon qualifying terminations, as described
below under “Potential Payments upon Termination or Change in Control”. In addition, the employment agreements provide for
an annual base salary, an annual performance-based cash bonus opportunity targeted at $350,000 for Mr. Equels, an annual discretionary
cash bonus based on performance goals for Ms. Lintal and Mr. Rodino, annual grants of stock options based on performance goals (300,000
for Mr. Equels and 100,000 for Ms. Lintal and Mr. Rodino), automobile allowances ($18,000 annually for Mr. Equels and $14,400 for Ms.
Lintal and Mr. Rodino). All NEOs are subject to confidentiality, invention assignment and non-compete restrictive covenants.
In
addition, the employment agreements provide for awards equal to (i) 3% (with respect to Mr. Equels) or 1% (with respect to Ms. Lintal
and Mr. Rodino) of Gross Proceeds (as defined therein) in the event of significant events such as specific licensing agreements or therapeutic
indication acquisitions, and (ii) 3% (with respect to Mr. Equels) or 1% (with respect to Ms. Lintal and Mr. Rodino) of the Gross Proceeds
from any sale of the Company or substantially all of the Company’s assets (together, the “One Time Awards”). Mr. Equels’
employment agreement also provides that the Company will pay the premiums for term life insurance policies in the aggregate face amount
of $3,000,000.
Consulting
Agreement
On
April 4, 2022, the Company entered into a consulting agreement with Ms. Lintal, who stepped down as the Company’s Chief Financial
Officer on April 4, 2022. Pursuant to the agreement, Ms. Lintal will transition to serve as a consultant to the Company and will provide
accounting and financial services as directed by the Company. The Company will pay Ms. Lintal a consulting fee of $300 per hour and monthly
COBRA expenses. At the end of the term of the agreement, Ms. Lintal will receive 50,000 stock options that will vest on the first anniversary
of the grant date. The agreement terminates on December 31, 2022, unless extended by mutual agreement of the parties. The agreement can
be terminated by either party upon 60 days’ prior written notice if not for “Cause” (as defined in the agreement) or
upon 30 days’ prior written notice if for Cause. Ms. Lintal did not receive any payments upon termination of her employment. However,
pursuant to Ms. Lintal’s consulting agreement, the outstanding options she held as of her termination date did not expire and remain
outstanding and eligible to vest subject to their terms.
Potential
Payments upon Termination or Change in Control
Termination
for Cause
All
of our NEOs can be terminated for cause at any time. For each NEO “Cause” means willful engaging by any NEO in illegal conduct,
gross misconduct or gross violation of our Code of Ethics and Business Conduct for Officers, which is demonstrably and materially injurious
to our company. Mr. Equels’ employment agreement provides that he shall not be deemed to have been terminated for Cause unless
and until we initiate a process by delivering to him a copy of a resolution duly adopted by the affirmative vote of not less than a majority
of the directors of the Board specifying the grounds for termination. After reasonable notice to Mr. Equels and an opportunity for him
to be heard, the issues shall be adjudicated by a retired Florida judge or a Florida certified mediator mutually acceptable to the Board
and Mr. Equels. Termination requires a finding that Mr. Equels was guilty of intentional and material misconduct according to the standards
set forth above, and specifying the particulars thereof in detail supported by legally admissible evidence and utilizing the legal standard
of beyond reasonable doubt. In the event that an NEO’s employment is terminated for Cause, we shall pay such NEO, at the time of
such termination, only the compensation and benefits otherwise due and payable to him or her through the last day of his or her actual
employment by us.
Termination
without Cause
In
the event that an NEO is terminated at any time without Cause, we shall pay to him or her, at the time of such termination, the compensation
and benefits otherwise due and payable through the last day of the then current term of his or her employment agreement. However, benefit
distributions that are made due to a “separation from service” occurring while he or she is a Named Executive Officer shall
not be made during the first six months following separation from service. Rather, any distribution which would otherwise be paid to
him or her during such period shall be accumulated and paid to him or her in a lump sum on the first day of the seventh month following
the “separation from service”. All subsequent distributions shall be paid in the manner specified. Mr. Equels’ employment
agreement terminates on December 31, 2025 unless sooner terminated or unless renewed. Ms. Lintal’s employment agreement terminated
on March 31, 2022. Mr. Rodino’s employment agreement terminates on March 31, 2024 unless sooner terminated or unless renewed. In
the event of termination without Cause, the NEOs shall be entitled to receive the One Time Awards.
Termination
upon Death or Disability
An
NEO’s employment will terminate upon death or disability. “Disability” means the NEO’s inability effectively
to carry out substantially all of his or her duties by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. In the
event his or her employment is terminated due to his or her death or disability, we will pay him or her (or their estate as the case
may be), at the time of such termination, his or her annual base salary, applicable benefits, and immediate vesting of unvested stock
options. In the event of Mr. Equels’ permanent disability, we will provide an additional two years of annual base salary. In the
event of Ms. Lintal’s or Mr. Rodino’s death or permanent disability occurs when less than two years remains left in the employment
term, we will provide an additional two years of annual base salary.
Estimated
Payments Following a Qualifying Termination
Pursuant
to their employment agreements, each NEO is entitled to severance benefits on certain types of employment terminations.
The
dollar amounts below assume that the termination occurred on January 1, 2022. The actual dollar amounts to be paid can only be determined
at the time of the NEO’s separation from us based on their prevailing compensation and employment agreements along with any determination
by the Compensation Committee in its discretion.
Name | |
Event | |
Cash
Severance ($) | | |
Value
of Stock Awards That Will Become Vested(1) ($) | | |
Total
($) | |
Thomas K. Equels, | |
Termination by the Company without
Cause | |
| 4,872,000 | | |
| 473,038 | | |
| 5,345,038 | |
President and Chief Executive Officer | |
Termination due to death or disability | |
| 1,736,000 | | |
| 473,038 | | |
| 2,209,038 | |
| |
Resignation by employee or retirement | |
| — | | |
| 473,038 | | |
| 473,038 | |
| |
| |
| | | |
| | | |
| | |
Ellen Lintal, | |
Termination by the Company without Cause | |
| 92,880 | | |
| 132,346 | | |
| 225,226 | |
Former Chief Financial Officer | |
Termination due to death or disability | |
| 728,800 | | |
| 132,346 | | |
| 861,146 | |
| |
Resignation by employee or retirement | |
| — | | |
| 132,346 | | |
| 132,346 | |
| |
| |
| | | |
| | | |
| | |
Peter Rodino | |
Termination by the Company without Cause | |
| 1,186,000 | | |
| 132,346 | | |
| 1,319,026 | |
COO, General Counsel, Secretary | |
Termination due to death or disability | |
| 878,800 | | |
| 132,346 | | |
| 1,011,146 | |
| |
Termination by employee or retirement | |
| — | | |
| 132,346 | | |
| 132,346 | |
Notes:
|
(1) | Consists
of stock options contractually required per the employee’s respective employment agreement
or arrangement to be granted during each calendar year of the term under our 2018 Equity
Incentive Plan. The stock options have a 10-year term and an exercise price equal to the
closing market price of our common stock on the date of grant. The value was obtained using
the Black-Scholes-Merton pricing model for stock-based compensation in accordance with FASB
ASC 718. |
Payments
in Connection with a Change in Control
Pursuant
to their employment agreements, each NEO is entitled to severance benefits related to a change in control. In such event, the term of
their employment agreements would automatically be extended for three additional years, except where such change in control occurs as
a result of certain “significant events” (as described in his or her employment agreement).
The
dollar amounts in the chart below assume that a termination in connection with a change in control occurred on January 1, 2022, based
on the employment agreements that existed at that time. The actual dollar amounts to be paid can only be determined at the time of the
NEO’s separation from us based on their prevailing compensation and employment agreements along with any determination by the Compensation
Committee in its discretion. Ms. Lintal and Mr. Rodino are not listed in the table below because, pursuant to their employment agreements,
their payments are based on the percentage they are to receive under their One Time Awards, and no dollar amount can be computed at this
time.
The
following table shows potential payments to the NEO if employment terminates following a change in control under contracts, agreements,
plans or arrangements at December 31, 2021. The amounts assume a January 1, 2022 termination date regarding base pay and use of the opening
price of $0.97 on the NYSE American for our common stock at that date.
Name
and Title of Director | |
Aggregate
Severance Pay ($)(1) | | |
Early
Vesting of Stock Options ($)(2) | | |
Early
Vesting of Stock Options ($)(2) | | |
Total
$ | |
Thomas K. Equels | |
| 6,076,000 | | |
| — | | |
| 1,988,119 | | |
$ | 8,064,119 | |
Notes:
(1) |
This
amount represents the annual base salary and benefits for the remaining current term of the NEO’s employment agreement plus
a three-year extension in the term upon the occurrence of a termination in connection with a change in control. The employment agreement
with Mr. Equels has a term through December 31, 2025. This amount excludes the following payments as they cannot be calculated unless
and until certain events occur: Mr. Equels is entitled to 3% of the “Gross Proceeds” (as defined in the employment agreement)
for “significant events” (as described in his employment agreement) and 3% of the Gross Proceeds from any sale of our
Company or substantially all of our assets. |
|
|
(2) |
This
amount is the intrinsic value on January 3, 2022 ($1.03 per share) minus the weighted average per share exercise price of $3.54 of
all unvested stock options for each NEO. All unvested stock options for each NEO have an exercise price greater than the fair market
value and, therefore, no intrinsic value is included above. |
|
|
(3) |
This
amount represents the options to be issued annually for the remaining term of the NEO’s employment agreement plus a three-year
extension in the occurrence of termination from a change in control. For the purpose of this schedule, a NYSE American closing price
on January 3, 2022 of $1.03 was used with an estimated exercise price of $1.03 for Mr. Equels. The value was obtained using the Black-Scholes-Merton
pricing model for stock-based compensation in accordance with FASB ASC 718. |
|
|
(4) |
Any
purchase rights represented by the Option not then vested shall, upon a change in control, shall become vested. |
Compensation
of Directors
Our
Compensation, Audit and Corporate Governance and Nomination Committees consist of Dr. William M. Mitchell, Compensation and Corporate
Governance and Nomination Committee Chair, and Stewart L. Appelrouth, Audit Committee Chair, both of whom are independent directors.
We
reimburse directors for travel expenses incurred in connection with attending Board, committee, stockholder and special meetings along
with other Company business-related expenses. We do not provide retirement benefits or other perquisites to non-employee directors under
any current program. All fees paid to directors are for services and reimbursable expenses.
All
directors have been granted options to purchase common stock under our stock option plans and/or warrants to purchase common stock. We
believe such compensation and payments are necessary in order for us to attract and retain qualified outside directors. Option shares
for stock compensation were issued under the 2018 Equity Incentive Plans.
Director
Compensation – 2021
The
following table shows information regarding the compensation earned or paid during 2021 to non-employee directors who served on the Board.
As Executive Vice Chairman, Chief Executive Officer, and President, Mr. Equels’ compensation is shown in the Summary Compensation
Table and the related tables under the section entitled “Executive Compensation.”
Name
and Title of Director | |
Fees
Earned or Paid in Cash | | |
Option
Awards(1) $ | | |
| | |
| | |
| | |
Total
$ | |
William Mitchell | |
| 182,462 | | |
| 78,673 | (2) | |
| — | | |
| — | | |
| — | | |
| 261,135 | |
Chairman of the Board | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Stewart Appelrouth | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Director | |
| 182,462 | | |
| 78,673 | (3) | |
| — | | |
| — | | |
| — | | |
| 261,135 | |
(1) | Amounts
reflect the aggregate grant date fair value of the options, computed in accordance with FASB
ASC 718. |
(2) | As
of December 31, 2021, Mr. Mitchell held 130,062 outstanding option awards. |
(3) | As
of December 31, 2021, Mr. Appelrouth held 129,209 outstanding option awards. |
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
Review,
Approval or Ratification of Transactions with Related Persons
Our
policy is to require that any transaction with a related party required to be reported under applicable SEC rules, other than compensation
related matters and waivers of our code of business conduct and ethics, be reviewed and approved or ratified by a majority of independent,
disinterested directors. We have adopted procedures in which the Audit Committee shall conduct an appropriate review of all related party
transactions for potential conflict of interest situations on an annual and case-by-case basis with the approval of the Audit Committee
required for all such transactions.
We
have employment agreements with certain of our executive officers and have granted such officers and directors options and warrants to
purchase our common stock, as discussed under the headings, “Compensation of Executive Officers” and “Principal Stockholders”.
PRINCIPAL
STOCKHOLDERS
The
following table sets forth as of the Record Date, September 9, 2022, the number and percentage of outstanding shares of common stock beneficially
owned by:
|
● |
Each
person, individually or as a group, known to us to be deemed the beneficial owners of five percent or more of our issued and outstanding
Common Stock; |
|
|
|
|
● |
Each
of our directors and NEOs; and |
|
|
|
|
● |
All
of our officers and directors as a group. |
|
|
|
|
● |
The
total number of shares of common stock as of the Record Date, September 9, 2022, was 48,049,300. |
Name
and Address of Beneficial Owner | |
| Number
of Shares
Beneficially Owned (6) | | |
| Percentage
of Shares
Beneficially Owned | |
Thomas K. Equels, Executive Vice Chairman,
Chief Executive Officer, President* | |
| 1,038,267 | (1) | |
| ** | % |
| |
| | | |
| | |
Peter W. Rodino III, Chief Operating Officer,
General Counsel, Secretary* | |
| 158,095 | (2) | |
| ** | % |
| |
| | | |
| | |
William M. Mitchell, M.D., Chairman of the
Board of Directors* | |
| 156,286 | (3) | |
| ** | % |
| |
| | | |
| | |
Stewart L. Appelrouth, Director* | |
| 215,626 | (4) | |
| ** | % |
| |
| | | |
| | |
Robert Dickey, IV, Chief Financial Officer* | |
| 0 | (5) | |
| ** | % |
| |
| | | |
| | |
All directors and executive officers as
a group (5 persons) | |
| 1,568,274 | | |
| ** | % |
*
The address is care of the Company, 2117 SW Highway 484, Ocala, FL 34473
**
Less than 1%
(1)
For Mr. Equels, shares beneficially owned include 655,563 shares issuable upon exercise of options and excludes 300,000
shares issuable upon exercise of options not vested or not exercisable within the next 60 days.
(2)
For Mr. Rodino, shares beneficially owned include 94,902 shares issuable upon exercise of options and excludes 150,000
shares issuable upon exercise of options not vested or not exercisable within the next 60 days.
(3)
For Dr. Mitchell, shares beneficially owned include 79,874 shares issuable upon exercise of options and excludes 100,000
shares issuable upon exercise of options not vested or not exercisable within the next 60 days. Also includes 190 shares of common stock
owned by his spouse and 190 shares owned by family trusts.
(4)
For Mr. Appelrouth, shares beneficially owned include 79,209 shares issuable upon exercise of options and excludes 100,000
shares issuable upon exercise of options not vested or not exercisable within the next 60 days.
(5)
For Mr. Dickey, excludes 50,000 shares issuable upon exercise of options not vested and not exercisable within the next 60 days.
(6)
None of the shares shown in the table as beneficially owned by current directors and executive officers is hedged or pledged as security
for any obligation. The Board has not adopted, and the Company does not have, any specific practices or policies regarding the ability
of the officers and directors of the Company, as well as employees of the Company, or any of their designees, to purchase financial instruments
(including prepaid variable forward contracts, equity swaps, collars, and exchange funds), or otherwise engage in transactions, that
hedge or offset, or are designed to hedge or offset, any decrease in the market value of the Company’s equity securities.
| |
Number
of securities to be issued upon exercise of outstanding options, warrants and rights | | |
Weighted
Average Exercise Price Per Share | | |
Number
of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column)
(a) | |
| |
(a) | | |
(c) | | |
| |
Equity compensation plans approved
by security holders: | |
| 1,773,974 | | |
$ | 4.033 | | |
| 307,834 | |
| |
| | | |
| | | |
| | |
Equity compensation
plans not approved by security holders: | |
| 294,939 | | |
$ | 15.19 | | |
| — | |
| |
| | | |
| | | |
| | |
Total | |
| 2,068,913 | | |
$ | 5.62 | | |
| 307,834 | |
IT
IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY.
WE URGE YOU TO FILL IN, SIGN AND RETURN THE ENCLOSED WHITE PROXY CARD IN THE PREPAID ENVELOPE PROVIDED, NO MATTER HOW MANY SHARES
YOU OWN.
WE
RECOMMEND THAT YOU VOTE “FOR ALL” OF OUR BOARD’S NOMINEES
FOR DIRECTOR (THOMAS K. EQUELS, WILLIAM M. MITCHELL AND STEWART L. APPELROUTH) ON PROPOSAL 1, “FOR” PROPOSAL 2, AND
“FOR” PROPOSAL 3.
|
By
Order of the Board of Directors, |
|
Peter
W. Rodino, III, Secretary |
|
|
Ocala,
Fla. |
|
September
19, 2022 |
|
APPENDIX
A
ADDITIONAL
INFORMATION REGARDING PARTICIPANTS IN THE SOLICITATION
Under
applicable SEC rules and regulations, members of the Board, the Board’s nominees, and certain officers of the Company are “participants”
with respect to the Company’s solicitation of proxies in connection with the Annual Meeting. The following sets forth certain information
about the persons who are “participants.”
Directors
and Nominees
The
following table sets forth the names of our current directors and the Board’s nominees, as well as the names and principal business
addresses of the corporation or other organization in which the principal occupations or employment of such directors and nominees is
carried on. The principal occupations or employment of our current directors and the Board’s nominees are set forth under the heading
“Proposal 1 – Election of Directors” in this Proxy Statement.
Name |
|
Principal
Business Name |
|
Principal
Business Address |
|
|
|
|
|
Thomas
K. Equels |
|
AIM
ImmunoTech Inc. |
|
2117
SW Highway 484, Ocala, Florida 34473 |
William
M. Mitchell, M.D. |
|
AIM
ImmunoTech Inc. |
|
2117
SW Highway 484, Ocala, Florida 34473 |
Stewart
L. Appelrouth |
|
AIM
ImmunoTech Inc. |
|
2117
SW Highway 484, Ocala, Florida 34473 |
Certain
Officers
The
following table sets forth the name and principal occupation of the Company’s officers who are “participants.” The
principal occupation refers to such person’s position with the Company, and the business address of each such person is c/o AIM
ImmunoTech Inc., 2117 SW Highway 484, Ocala, Florida 34473.
Name |
|
Principal
Occupation |
|
|
|
Thomas
K. Equels |
|
Executive
Vice Chairman of the Board, Chief Executive Officer and President |
Peter
W. Rodino, III |
|
Chief
Operating Officer, Executive Director Government Relations, General Counsel and Secretary |
Robert
Dickey, IV |
|
Chief
Financial Officer |
Information
Regarding Ownership of the Company’s Securities by Participants
The
number of Company securities beneficially owned by directors and named executive officers, including those who are “participants”
in our solicitation of proxies, as of the Record Date is set forth in the “Principal Stockholders” section of this Proxy
Statement.
Information
Regarding Transactions in the Company’s Securities by Participants
The
following table sets forth information regarding purchases and sales of the Company’s securities during the past two years by the
persons listed above under “Directors and Nominees” and “Certain Officers” in this Appendix A. None of the purchase
price or market value of the securities listed below is represented by funds borrowed or otherwise obtained for the purpose of acquiring
or holding such securities.
Company Securities
Purchased or Sold |
(September
9, 2020 through September 18, 2022) |
Name | |
Transaction
Date | |
Number
of Securities | | |
Transaction
Description | |
| |
| |
| | |
| |
Stewart L. Appelrouth | |
2/25/2021 | |
| 10,638 | | |
| 1 | |
| |
11/11/2021 | |
| 50,000 | | |
| 3 | |
| |
11/24/2021 | |
| 19,379 | | |
| 2 | |
| |
3/3/2022 | |
| 50,000 | | |
| 3 | |
| |
4/25/2022 | |
| 24,500 | | |
| 2 | |
Robert Dickey,
IV | |
3/3/2022 | |
| 50,000 | | |
| 3 | |
Thomas K. Equels | |
11/11/2020 | |
| 300,000 | | |
| 3 | |
| |
12/17/2020 | |
| 14,535 | | |
| 1 | |
| |
2/24/2021 | |
| 11,062 | | |
| 1 | |
| |
7/16/2021 | |
| 15,625 | | |
| 1 | |
| |
11/11/2021 | |
| 300,000 | | |
| 3 | |
| |
11/17/2021 | |
| 9,416 | | |
| 2 | |
| |
11/19/2021 | |
| 10,204 | | |
| 2 | |
| |
11/23/2021 | |
| 11,194 | | |
| 2 | |
| |
11/24/2021 | |
| 11,627 | | |
| 2 | |
| |
12/10/2021 | |
| 11,811 | | |
| 2 | |
| |
12/13/2021 | |
| 21,552 | | |
| 2 | |
| |
4/25/2022 | |
| 49,020 | | |
| 2 | |
| |
7/18/2022 | |
| 32,895 | | |
| 2 | |
William M.
Mitchell, M.D. | |
11/11/2021 | |
| 50,000 | | |
| 3 | |
| |
3/3/2022 | |
| 50,000 | | |
| 3 | |
Peter W. Rodino, III | |
12/9/2020 | |
| 75,000 | | |
| 3 | |
| |
11/30/2021 | |
| 100,000 | | |
| 3 | |
| |
3/3/2022 | |
| 50,000 | | |
| 3 | |
| |
4/25/2022 | |
| 4,902 | | |
| 2 | |
Transaction
Descriptions |
|
|
1 |
Open
Market Purchase |
2 |
Grant,
Award or Other Acquisition Pursuant to Rule 16b-3(d) |
3 |
Option
Award |
Miscellaneous
Information Regarding Participants
Except
as described in this Appendix A or in this Proxy Statement, to the knowledge of the Company:
● |
Neither
any participant nor any of their respective associates or affiliates (together, the “Participant Affiliates”) is either
a party to any transaction or series of transactions since the beginning of the Company’s last fiscal year or has knowledge
of any current proposed transaction or series of proposed transactions (i) to which the Company or any of its subsidiaries was or
is to be a participant, (ii) in which the amount involved exceeds the lesser of $120,000 or 1% of the average of the Company’s
total assets at year-end for the last two completed fiscal years and (iii) in which any participant or Participant Affiliate had,
or will have, a direct or indirect material interest. |
|
|
● |
No
participant or Participant Affiliate, directly or indirectly, beneficially owns any securities of the Company or any securities of
any subsidiary of the Company, and no participant owns any securities of the Company of record but not beneficially. |
|
|
● |
No
participant has purchased or sold any securities of the Company within the past two years. |
|
|
● |
No
participant or Participant Affiliate has entered into any agreement or understanding with any person with respect to any future employment
by the Company or any of its affiliates or with respect to or any future transactions to which the Company or any of its affiliates
will or may be a party. |
|
|
● |
There
are no contracts, arrangements or understandings by any participant or Participant Affiliate presently, nor have there been any within
the past year, with any person with respect to any securities of the Company, including, but not limited to, joint ventures, loan
or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits, or the giving
or withholding of proxies. |
|
|
● |
No
participant has any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon at
the Annual Meeting other than an interest, if any, as a stockholder of the Company or, with respect to each of the Board’s
nominees, as a nominee for director. |
|
|
● |
Excluding
any director or executive officer of the Company acting solely in that capacity, no person who is a party to an arrangement or
understanding pursuant to which a nominee for election as director is proposed to be elected has any substantial interest, direct or
indirect, by security holdings or otherwise, in any matter to be acted upon at the Annual Meeting other than an interest, if any, as
a stockholder of the Company or, with respect to each of the Board’s nominees, as a nominee for director. |
Other
Information
There
are no material proceedings to which any director or executive officer of the Company, or any of their associates is a party adverse
to, or has a material interest adverse to, the Company or any of its subsidiaries.
Based
on representations made to the Company by the participants, no participant has been the subject of a criminal conviction (excluding traffic
violations or similar misdemeanors) within the last 10 years.
There
are no family relationships between any directors of the Company, the Board’s nominees, and the executive officers of the Company.

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