AIM ImmunoTech Files Definitive Proxy Statement and Sends Letter to Shareholders
Warns Shareholders that Activist Group's Self-Interested Agenda Could Disrupt AIM's Momentum and Destroy Chances for Near-Term Value Creation
Expresses Excitement About Encouraging Progress of Clinical Trials for Ampligen in High-Value Indications Including Pancreatic Cancer
Urges Shareholders to Safeguard AIM by Voting "FOR" ALL Four of the Board's Incumbent Candidates and Discarding Any Proxy Materials from the Activist Group
Visit www.SafeguardAIM.com for More Information
AIM ImmunoTech Inc. (NYSE:AIM) (the "Company") today announced that the Company has filed its definitive proxy statement with the U.S. Securities and Exchange Commission in connection with its upcoming 2024 Annual Meeting of Stockholders, scheduled for December 17, 2024. The Company also mailed a letter to shareholders.
This press release features multimedia. View the full release here: https://www.businesswire.com/news/home/20241104047141/en/
Figure 1 (Graphic: Business Wire)
The full text of the letter to shareholders follows:
November 4, 2024
Dear Fellow Shareholders:
Thank you for your investment in AIM ImmunoTech Inc. ("AIM" or the "Company"). Your vote at this year's 2024 Annual Meeting of Stockholders (the "Annual Meeting"), scheduled for December 17, 2024, is critical. For the third year in a row, a group of activist investors (collectively, the "Activist Group") has nominated a slate of nominees – which this time includes Robert L. Chioini, Todd Deutsch, Ted D. Kellner and Paul W. Sweeney – in an attempt to take control of the AIM Board of Directors (the "Board"). This year, the Activist Group – which includes individuals with checkered pasts who have close ties to securities law felons – is trying to replace your entire four-member Board.
We believe AIM has a bright future. We continue to execute on our strategy to create sustainable value for you and have significant momentum with our lead drug candidate, Ampligen, in areas with critical unmet needs – especially in the high-value pancreatic cancer space. Our active clinical trials are bringing us closer to helping patients and unlocking the Company's intrinsic value for our shareholders.
However, our progress could be put in jeopardy if the Activist Group takes control of the Board. Electing the Activist Group's nominees could severely disrupt our forward momentum, give them access to AIM's capital and destroy the chances of near-term value creation for shareholders.
If the Activist Group actually wanted to create value for you, we believe it would have put forth a detailed operational plan and explain what it would do differently – which it has not done. We believe the Activist Group's campaign shows a complete lack of seriousness and disregard for fellow shareholders.
What makes the Activist Group's campaign even more worrying is that it is seemingly designed to get reimbursement from AIM – using shareholders' money – for the millions of dollars its members have spent trying to take control of the Board. Don't take our word for it – just read the Activist Group's proxy statement, where it discloses its plan to recoup over $5 million spent in connection with certain of its members' efforts relating to the Company's 2023 Annual Meeting of Stockholders if it wins control of the Board, in addition to whatever expenses the Activist Group incurs in connection with this year's Annual Meeting. The Activist Group has also indicated that it does not intend to submit this matter to a shareholder vote – forcing you, the shareholders, to foot its bill without any say.
In light of all this, your Board has determined that electing the Activist Group's nominees to the Board would not be in the best interests of all shareholders. The Board is committed to protecting the significant momentum AIM has built over the last several years and is well-positioned to continue driving the clinical and operational execution of our pipeline.
We urge you to protect your investment by voting for the election of your Board's incumbent candidates – Stewart L. Appelrouth, Nancy K. Bryan, Thomas K. Equels and Dr. William M. Mitchell – on the WHITE universal proxy card.
In contemplating your vote, we ask that you consider the following:
The Activist Group Includes Criminals and Individuals Who Have Attempted to Mislead AIM Shareholders for Years
Members of the Activist Group have repeatedly tried to take over your Board for years – all while attempting to hide key information from shareholders and mislead you about their true plans and the unsavory characters that are part of their efforts.
This year is no different. The Activist Group is attempting to replace your entire Board with four of its interconnected cronies – Messrs. Chioini, Deutsch, Kellner and Sweeney – nearly all of whom have been part of the multi-year effort to take control of AIM.
In each year that the Activist Group has sought control of the Board, we have unearthed new disturbing information about its members and past associates, as well as the nefarious tactics several of these individuals have employed, including initiating multiple lawsuits against AIM and their submission of nomination notices containing false statements and material omissions.
As the Delaware Court of Chancery (the "Court") noted in 2022, in describing the Activist Group's actions: "[t]he facts read like a game of telephone."1 Consider the below details:
- The Activist Group's roots trace back to the efforts of Franz N. Tudor – a felon, who was convicted of insider trading – who began misrepresenting himself as associated with AIM to third parties – including an FDA lobbyist and principal investigators for Ampligen. Mr. Tudor's behavior was so egregious that AIM successfully obtained an injunction against him in Marion County, Florida in August 2021.2
- Mr. Tudor then solicited Mr. Chioini to join members of the Activist Group. The two knew each other well, having worked together for nearly a decade at Rockwell Medical Technologies, Inc. ("Rockwell Medical"). But the Company later learned that Mr. Chioini had been fired as Rockwell Medical's CEO because, according to Rockwell Medical, he "lacked key attributes necessary to oversee the growth and long-term success of the [c]ompany."3 Rockwell Medical ultimately sued Mr. Chioini, stating that he "refuse[d] to accept the decision" and, following his termination, took "action purportedly on the [c]ompany's behalf without authorization."4
- Mr. Chioini then solicited the aid of yet another felon, Michael Xirinachs, who pled guilty to wire fraud involving fraudulent securities trading and misuse of funds.5 Mr. Xirinachs agreed to fund members of the Activist Group's activities6 – we believe likely in exchange for a promise that he could be reimbursed with generous interest from the Company's coffers. But the Activist Group failed to disclose Mr. Xirinachs' involvement in the scheme until it was revealed in litigation discovery,7 instead attempting to run the funds through a separate entity to conceal Mr. Xirinachs' involvement.8
- Email communications show that Mr. Xirinachs began discussing AIM with members of the Activist Group around the time of his legal troubles.9 This felon, who, like Mr. Chioini, is not a shareholder, agreed to pay for the legal fees in connection with their nomination efforts at the Company.10
- Messrs. Xirinachs and Chioini worked with Mr. Tudor to plan the 2022 campaign before Jonathan Jorgl – the "face" of the 2022 campaign – was even asked to purchase shares.11 Further, Mr. Jorgl was used to hide the involvement of Mr. Xirinachs and others – which involvement the Activist Group only admitted to after Mr. Xirinachs' involvement was disclosed in discovery.12
- Leading up to the 2022 campaign, it was disclosed that Mr. Chioini texted a business associate of his that he was "burning a Cuban [cigar] . . . on my dock . . . [t]he same thing we're going to do when we celebrate . . . taking control of the [C]ompany."13
- Mr. Tudor has known Mr. Deutsch for over 15 years, having worked together at the Galleon Group,14 a hedge fund that closed in 2009 after an insider trading scandal led to over 50 convictions or guilty pleas.15
- Current nominees Messrs. Deutsch and Kellner have known each other for over two decades and invested in more than 20 companies together.16
- Current nominees Messrs. Chioini and Deutsch have business ties to the orchestrator of the original campaign, convicted criminal, Mr. Tudor.17
- Individuals formerly associated with the Activist Group have, in years past, spread disparaging misinformation about the Company, its directors and its progress, including through numerous misleading internet posts by Mr. Tudor under the pseudonym "beaufordb" (which Mr. Tudor was later forced to concede during a deposition belongs to him).
- Following litigation brought by a member of the Activist Group, the Court agreed with the Board's determination and found that the Activist Group's 2022 nomination notice "was – at best – misleading."18
- The Court agreed with the Board and found that the Activist Group flouted AIM's Bylaws and determined that the Activist Group was "engaging in manipulative conduct."19
- In its 2023 nomination notice, the Activist Group finally exposed its motives for seeking control of the Board – namely its plan to force AIM shareholders to foot the bill for the millions of dollars of expenses it incurred in connection with its failed 2022 campaign.20
- At no point has the Activist Group presented any business plan or CEO candidate for AIM. Why? Because it has no plan – beyond, we believe, draining AIM's resources to pay its members and their associates millions of dollars related to their years-long efforts to seize control of the Board.
The Court described the Activist Group as a "web of individuals" working together to nominate a slate of nominees to take control of the Board in 2022.21 Two years later, the interconnections remain striking. (See Figure 1)
Our Board and Management Team are Driving Significant Momentum
The Board and management team have established a robust pipeline developing our lead product candidate Ampligen across a number of disease areas – with a true focus on oncology indications – and a cash position expected to fund operations through multiple key milestones.
Ampligen has shown broad-spectrum activity in human clinical studies with significant positive data published in numerous well-respected journals and forums. We have multiple active and ongoing clinical trials for Ampligen across areas of unmet medical need and high-value indications. Advancing these human clinical studies is our primary focus and we have established a growing body of consistent safety and efficacy data with Ampligen that continues to encourage us and our program collaborators.
In particular, we are developing Ampligen as part of a combination therapy with our lead program in pancreatic cancer. We've seen exciting data in two ongoing Phase 2 studies of Ampligen and AstraZeneca's Durvalumab for pancreatic cancer and Merck's Keytruda.
Other key accomplishments and milestones in 2024 include:
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Metastatic Pancreatic Ductal Adenocarcinoma
- Commenced enrollment and dosing in DURIPANC Phase 1b/2 study combining Ampligen® with AstraZeneca's anti-PD-L1 immune checkpoint inhibitor Imfinzi® (durvalumab) for the treatment of late-stage pancreatic cancer;
- Announced that the first dose level is generally well-tolerated in the DURIPANC Phase 1b/2 study of Ampligen and Imfinzi as a combination therapy for late-stage pancreatic cancer; and
- Reported positive preliminary data from Phase 1b/2 Study of Ampligen and Imfinzi as a combination therapy for late-stage pancreatic cancer demonstrating a preliminary finding of stable disease in two out of three patients at six months in the first subject cohort.
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Locally Advanced Pancreatic Adenocarcinoma
- Received authorization from the Erasmus Medical Center Ethics Committee to open a European site for the ongoing Phase 2 study ("AMP-270") of Ampligen as a therapy for locally advanced pancreatic cancer; and
- Announced the publication of new data analysis from a long-term Early Access Program studying Ampligen for the treatment of advanced pancreatic ductal adenocarcinoma.
-
Recurrent Ovarian Cancer
- Reported positive top-line, protocol-planned interim report data from the study of Ampligen combined with pembrolizumab for the treatment of recurrent ovarian cancer.
-
Post-COVID Conditions
- Reported positive topline results from the Company's Phase 2 study evaluating the efficacy and safety of Ampligen as a potential therapeutic for people with the post-COVID condition of fatigue ("AMP-518"); and
- Reported an analysis of the AMP-518 clinical trial which supported the Company's belief in Ampligen as a potential therapeutic for people with the moderate-to-severe post-COVID condition of fatigue, and that this would be the likely subject population for AIM's planned follow-up clinical trial.
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Additional Key Accomplishments
- Successfully completed cGMP manufacturing of 9,042 clinical vials of Ampligen;
- Announced the publication of new pre-clinical data of Ampligen as part of a combinational therapy in the treatment of melanoma; and
- Granted a patent for Ampligen for the treatment of endometriosis.
Furthermore, we are executing our clinical strategy to prepare a compelling data package for discussions on big pharma development and commercialization.
Our Well-Qualified Board Has the Right Experience to Drive AIM Forward
We believe our Board has the right mix of experience and skillsets to oversee the Company's strategy for value creation. Your current Board members – and candidates for election this year – include:
- Stewart L. Appelrouth – Mr. Appelrouth has valuable financial and regulatory expertise as a certified public accountant with over 40 years of accounting and audit experience. His extensive experience as an accountant and provider of business and tax consulting services equips him to serve as Chairman of the Board's Audit Committee.
- Nancy K. Bryan – Ms. Bryan possesses deep commercial, marketing, business development and corporate finance expertise from her service at major pharmaceutical companies including Merck, GlaxoSmithKline and Bayer Pharmaceuticals as well as startup biotech companies including Indevus Pharmaceuticals and NPS Pharmaceuticals. She was named a director in March 2023 as part of AIM's effort to bring additional diverse perspectives and biotechnology commercialization experience into the boardroom.
- Thomas K. Equels, M.S., J.D. – Mr. Equels is Executive Vice Chairman, Chief Executive Officer and President of the Company and has over 25 years of experience as a practicing attorney specializing in complex business litigation. He also has extensive experience in clinical trial design and development, creating intellectual property concepts and in financing drug development.
- Dr. William M. Mitchell – Dr. Mitchell serves as Chairman of the Board and has extensive medical industry experience, including as a Professor of Pathology at Vanderbilt University School of Medicine, a board-certified physician and a former member of the board of directors of Chronix Biomedical, a company involved in next-generation DNA sequencing for medical diagnostics.
Together, the Board has taken the necessary steps to defend the best interests of shareholders while maintaining the significant momentum of our development pipeline. We are confident they have the right experience and backgrounds to continue advancing AIM toward sustainable value creation.
We are committed to protecting the best interests of shareholders and appreciate your support and investment in the Company.
Please ignore any proxy materials you receive from the Activist Group and vote on the Company's WHITE universal proxy card for your current highly qualified directors to protect your investment.
If you have any questions or need further assistance, please contact our proxy solicitor, Sodali & Co. at [email protected] or (800) 662-5200.
To learn more, shareholders are encouraged to visit: www.SafeguardAIM.com.
Sincerely,
AIM ImmunoTech Inc. Board of Directors
WE URGE YOU TO COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED WHITE UNIVERSAL PROXY CARD AND MAIL IT PROMPTLY IN THE POSTAGE-PAID ENVELOPE PROVIDED, OR VOTE BY INTERNET AS INSTRUCTED ON THE WHITE UNIVERSAL PROXY CARD, WHETHER OR NOT YOU PLAN TO VIRTUALLY ATTEND THE ANNUAL MEETING.
THE BOARD RECOMMENDS A VOTE "FOR" ALL OF OUR BOARD'S CANDIDATES (STEWART L. APPELROUTH, NANCY K. BRYAN, THOMAS K. EQUELS AND DR. WILLIAM M. MITCHELL) ON PROPOSAL 1 USING THE ENCLOSED WHITE UNIVERSAL PROXY CARD.
About AIM ImmunoTech Inc.
AIM ImmunoTech Inc. is an immuno-pharma company focused on the research and development of therapeutics to treat multiple types of cancers, immune disorders and viral diseases, including COVID-19. The Company's lead product is a first-in-class investigational drug called Ampligen® (rintatolimod), a dsRNA and highly selective TLR3 agonist immuno-modulator with broad spectrum activity in clinical trials for globally important cancers, viral diseases and disorders of the immune system.
For more information, please visit aimimmuno.com and connect with the Company on X, LinkedIn, and Facebook.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 (the "PSLRA"). Words such as "may," "will," "expect," "plan," "anticipate," "continue," "believe," "potential," "upcoming" and other variations thereon and similar expressions (as well as other words or expressions referencing future events or circumstances) are intended to identify forward-looking statements. Many of these forward-looking statements involve a number of risks and uncertainties. Data, pre-clinical success and clinical success seen to date does not guarantee that Ampligen will be approved as a treatment or therapy for any diseases or conditions. The Company urges investors to consider specifically the various risk factors identified in its most recent Annual Report on Form 10-K, and any risk factors or cautionary statements included in any subsequent Quarterly Report on Form 10-Q or Current Report on 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 press release. Among other things, for those statements, the Company claims the protection of the safe harbor for forward-looking statements contained in the PSLRA. The Company does not undertake to update any of these forward-looking statements to reflect events or circumstances that occur after the date hereof.
Important Additional Information
The Company, its directors and executive officers, Peter W. Rodino, III and Robert Dickey, IV, are deemed to be "participants" (as defined in Section 14(a) of the Securities Exchange Act of 1934, as amended) in the solicitation of proxies from the Company's stockholders in connection with the Annual Meeting. The Company filed its definitive proxy statement (the "Definitive Proxy Statement") and a WHITE universal proxy card with the SEC on November 4, 2024 in connection with such solicitation of proxies from the Company's stockholders. STOCKHOLDERS OF THE COMPANY ARE STRONGLY ENCOURAGED TO READ SUCH DEFINITIVE PROXY STATEMENT, ACCOMPANYING WHITE UNIVERSAL PROXY CARD AND ALL OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY AS THEY CONTAIN IMPORTANT INFORMATION ABOUT THE ANNUAL MEETING. The Definitive Proxy Statement contains information regarding the identity of the participants, and their direct and indirect interests, by security holdings or otherwise, in the Company's securities and can be found in the section titled "Principal Stockholders" of the Definitive Proxy Statement and available here. Information regarding subsequent changes to their holdings of the Company's securities can be found in the SEC filings on Forms 3, 4, and 5, which are available on the Company's website available here or through the SEC's website at www.sec.gov. Stockholders will be able to obtain the Definitive Proxy Statement, any amendments or supplements thereto and other documents filed by the Company with the SEC at no charge at the SEC's website at www.sec.gov. Copies will also be available at no charge at the Company's website at https://aimimmuno.com/sec-filings/.
1 Jorgl v. AIM ImmunoTech Inc. et al., 2022 WL 16543834, at *1 (Del. Ch. Oct. 28, 2022). (emphasis added).
2 See Jorgl, 2022 WL 16543834, at *3.
3 See Kellner v. AIM ImmunoTech Inc., 307 A.3d 998, at 1008.
4 See Press Release issued by Rockwell Medical on May 24, 2018, available at: https://www.prnewswire.com/news-releases/rockwell-medical-issues-statement-300654699.html.
5 See Kellner v. AIM ImmunoTech Inc., 307 A.3d 998, at 1010.
6 See Jorgl, 2022 WL 16543834, at *7–8.
7 See Press Release issued by Mr. Jorgl on July 21, 2022, available at: https://www.nasdaq.com/press-release/update-aim-stockholder-full-value-committee-announces-director-nominations-for-aim (identifying River Rock Advisors LLC as a participant); Preliminary Proxy Statement filed by Mr. Jorgl et al. with the U.S. Securities and Exchange Commission (the "SEC") on September 15, 2022 (belatedly acknowledging Mr. Xirinachs' involvement); Jorgl, 2022 WL 16543834, at *8.
8 See Jorgl, 2022 WL 16543834, at *8 & n.92.
9 See id. at *4.
10 See id. at *1.
11 See id. at *14.
12 See id. at *34.
13 See Press Release issued by the Company on October 26, 2022, available at: https://aimimmuno.com/aim-immunotech-board-issues-letter-to-shareholders/.
14 See Jorgl, 2022 WL 16543834, at *3.
15 See Press Release issued by the SEC on October 16, 2009, available at: https://www.sec.gov/news/press/2009/2009-221.htm.
16 See Kellner v. AIM ImmunoTech Inc., 307 A.3d 998, 1009 (Del. Ch. Dec. 28, 2023).
17 See id. at 1009; see Kellner v. AIM ImmunoTech Inc., 320 A.3d 239, 247 (Del. 2024).
18 Jorgl, 2022 WL 16543834, at *1. (emphasis added).
19 See id. at *17. (emphasis added).
20 See Schedule 13D/A filed by Mr. Kellner with the SEC on September 3, 2024.
21 Jorgl, 2022 WL 16543834, at *1.
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