Item
1.01 Entry into a Material Definitive Agreement.
On
April 19, 2023, AIM Immunotech Inc. (the “Company”) entered into an Equity Distribution Agreement (the “Distribution
Agreement”), with Maxim Group LLC (“Maxim”), pursuant to which the Company may sell from time to time, shares of its
common stock, $0.001 par value per share, having an aggregate offering price of up to $8.5 million (the “Shares”) through
Maxim, as agent (the “Offering”). On April 19, 2023, the Company filed a prospectus supplement with the Securities
and Exchange Commission (the “SEC”) in connection with the Offering (the “Prospectus Supplement”) under its existing
Registration Statement on Form S-3 (File No 333-262280), which became effective on February 4, 2023 (the “Registration Statement”),
related to the sale of Shares having an aggregate offering price of up to $100 million.
Subject
to the terms and conditions of the Distribution Agreement, Maxim will use its commercially reasonable efforts to sell the Shares from
time to time, based on the Company’s instructions. Under the Distribution Agreement, Maxim may sell the Shares by any method permitted
by law deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act of 1933, as amended
(the “Securities Act”), including, without limitation, sales made directly on the NYSE American.
The
Company has no obligation to sell any of the Shares, and may at any time suspend offers under the Distribution Agreement. The Offering
will terminate upon the earlier of (i) the sale of Shares under the Distribution Agreement having an aggregate offering price of $8.5
million, 24 months from the date of the Distribution Agreement or the termination of the Distribution Agreement by either the Company
or Maxim upon the provision of fifteen (15) days written notice. In addition, sales of Shares under the Offering shall not exceed $8.5
million, unless and until the Company files an amended or new Prospectus Supplement.
Under
the terms of the Distribution Agreement, Maxim will be entitled to a transaction fee at a fixed rate of 3.0% of the gross sales price
of Shares sold under the Distribution Agreement. The Company will also reimburse Maxim for certain expenses incurred in connection with
the Distribution Agreement, and has agreed to provide indemnification and contribution to Maxim with respect to certain liabilities under
the Securities Act and the Securities Exchange Act of 1934, as amended.
The
Company intends to use the net proceeds from the sale of Shares for working capital and general corporate purposes.
The
foregoing description of the Distribution Agreement does not purport to be complete and is qualified in its entirety by reference to
the full text of the Distribution Agreement, a copy of which is filed hereto as Exhibit 10.1. This Current Report on Form 8-K shall not
constitute an offer to sell or the solicitation of an offer to buy the Shares, nor shall there by any offer, solicitation or sale of
the Shares in any state or country in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or country.
The
Distribution Agreement and the above description have been included to provide investors and security holders with information regarding
the terms of the Distribution Agreement. They are not intended to provide any other factual information about the Company or its subsidiaries,
affiliates or stockholders. The representations, warranties and covenants contained in the Distribution Agreement were made only for
purposes of the Distribution Agreement and as of specific dates; were solely for the benefit of the parties to the Distribution Agreement;
and may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures made by each contracting
party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors. Investors
should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state
of facts or condition of the Company or any of its subsidiaries, affiliates, businesses or stockholders. Moreover, information concerning
the subject matter of the representations, warranties and covenants may change after the date of the Distribution Agreement, which subsequent
information may or may not be fully reflected in public disclosures or statements by the Company. Accordingly, investors should read
the representations and warranties in the Distribution Agreement not in isolation but only in conjunction with the other information
about the Company and its subsidiaries that the Company includes in reports, statements and other filings made with the SEC.
Silverman
Shin & Byrne PLLC, counsel to the Company, has issued a legal opinion relating to the Shares. A copy of this legal opinion, including
the consent included therein, is attached as Exhibit 5.1 hereto.
Any
Shares offered and sold in the Offering will be issued pursuant to the Company’s Registration Statement, the prospectus and the
Prospectus Supplement relating to the Offering.
Forward-Looking
Statements
This
current report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of
1995 (“PSLRA”). Such forward-looking statements include but are not limited to statements about the Offering and other statements
that are not historical facts. These forward-looking statements are subject to risks and uncertainties that may cause actual results
or events to differ materially from those projected, including but not limited to the risks that the Offering does not occur when expected
or at all because required conditions to closing are not satisfied on a timely basis or at all. Readers are cautioned not to place undue
reliance on the forward-looking statements, which speak only as of the date on which they are made and reflect management’s current
estimates, projections, expectations and beliefs. The Company undertakes no obligation to publicly revise or update the forward-looking
statements to reflect events or circumstances that arise after the date of this report.