As
filed with the Securities and Exchange Commission on November 15, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
AIM
ImmunoTech Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
2836 |
|
52-0845822 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
2117
SW Highway 484
Ocala
FL 34473
(352)
448-7797
(Address,
including zip code, and telephone number, including
area
code, of registrant’s principal executive offices)
Thomas
K. Equels
Chief
Executive Officer
AIM
ImmunoTech Inc.
2117
SW Highway 484
Ocala
FL 34473
(352)
448-7797
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Richard
Feiner, Esq.
Silverman,
Shin & Schneider PLLC
88
Pine Street, 22nd Floor
New
York, NY 10005
(646)
822-1170
Approximate
date of commencement of proposed sale to the public:
From
time to time after this registration statement becomes effective, as determined by the selling stockholder.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large
accelerated filer ☐ |
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
Smaller
reporting company ☒ |
| |
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information contained in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
| PRELIMINARY
PROSPECTUS |
|
SUBJECT
TO COMPLETION |
|
DATED
NOVEMBER 15, 2024 |
AIM
ImmunoTech Inc.
9,306,072
Shares
Common
Stock
This
prospectus relates to the resale from time to time of up to 9,306,072 shares of common stock, par value $0.001 per share (the “Common
Stock”), of AIM ImmunoTech Inc. issuable upon exercise of Class C common warrants to purchase an aggregate of up to 4,653,036 shares
of our Common Stock (the “C Warrants”) and Class D common warrants to purchase an aggregate of up to 4,653,036 shares of
our Common Stock (the “D Warrants”, and along with the C Warrants, the “Common Warrants”) purchased by the selling
stockholder identified in this prospectus (the “Selling Stockholder”), including its pledgees, assignees, donees, transferees
or their respective successors-in-interest in a private placement transaction that closed on October 1, 2024 (the “Private Placement”).
The shares of Common Stock issuable upon exercise of the Common Warrants are sometimes referred to as the “Common Warrant Shares.”
We
are filing the registration statement on Form S-1, of which this prospectus forms a part, to fulfill our contractual obligations with
the Selling Stockholder to provide for the resale by the Selling Stockholder of the shares of Common Stock offered hereby. See “Selling
Stockholder” beginning on page 6 of this prospectus for more information about the Selling Stockholder. The registration of the
shares of Common Stock to which this prospectus relates does not require the Selling Stockholder to sell any of its shares of our Common
Stock.
We
are not offering any shares of Common Stock under this prospectus and will not receive any proceeds from the sale or other disposition
of the shares of our Common Stock covered hereby. See “Use of Proceeds” beginning on page 3 of this prospectus.
The
Selling Stockholder identified in this prospectus, or its pledgees, assignees, donees, transferees or their respective successors-in-interest,
from time to time may offer and sell through public or private transactions at prevailing market prices, at prices related to prevailing
market prices or at privately negotiated prices the shares held by them directly or through underwriters, agents or broker-dealers on
terms to be determined at the time of sale, as described in more detail in this prospectus. See “Plan of Distribution” beginning
on page 7 of this prospectus for more information about how the Selling Stockholder may sell its shares of Common Stock. The Selling
Stockholder may be deemed an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended
(the “Securities Act”).
In
connection with the Private Placement, we have agreed, pursuant to a securities purchase agreement dated September 30, 2024 (The “Purchase
Agreement”) that we have entered into with the Selling Stockholder, to bear all of the expenses in connection with the registration
of the Common Warrant Shares pursuant to this prospectus. The Selling Stockholder will pay or assume all commissions, discounts, fees
of underwriters, agents, selling brokers or dealer managers and similar expenses, if any, attributable to its sales of the shares of
Common Stock.
Our
Common Stock is listed on the NYSE American under the symbol “AIM.” On November 13, 2024, the closing price of our
Common Stock on the NYSE American was $0.24 per share.
Investing
in our Common Stock involves risks. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in this prospectus and under similar headings in the other documents that are incorporated by reference
into this prospectus, as described beginning on page 3 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. The securities are not being
offered in any jurisdiction where the offer is not permitted.
The
date of this prospectus is ~, 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
You
should rely only on the information we have provided or incorporated by reference into this prospectus and any related free writing prospectus.
We have not authorized anyone to provide you with information different from that contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus. No dealer, salesperson or other person is authorized to give any information or to
represent anything not contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus. You
must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the shares of Common Stock
offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information
in this prospectus or any related free writing prospectus is accurate only as of the date on the front of the document and that any information
we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of
delivery of this prospectus or any sale of a security.
This
prospectus and the documents incorporated by reference into this prospectus include statistical and other industry and market data that
we obtained from industry publications and research, surveys and studies conducted by AIM, by third parties, or by third parties in collaboration
with AIM. Industry publications and research, surveys and studies generally indicate that their information has been obtained from sources
believed to be reliable, although they do not guarantee the accuracy or completeness of such information. We believe that the data obtained
from these industry publications and research, surveys and studies are reliable. We are ultimately responsible for all disclosure included
in this prospectus.
The
Selling Stockholder is offering the shares of Common Stock only in jurisdictions where such issuances are permitted. The distribution
of this prospectus and the issuance of the shares of Common Stock in certain jurisdictions may be restricted by law. Persons outside
the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to,
the issuance of the shares and the distribution of this prospectus outside the United States. This prospectus does not constitute, and
may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, the shares of Common Stock offered by this
prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”),
under which the Selling Stockholder may offer from time-to-time securities described herein in one or more offerings. If required, each
time the Selling Stockholder offers shares, we will provide you with, in addition to this prospectus, a prospectus supplement that will
contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to that offering. We may also use a prospectus supplement and any related free
writing prospectus to add, update or change any of the information contained in this prospectus or in documents we have incorporated
by reference. This prospectus, together with any related free writing prospectuses and the documents incorporated by reference into this
prospectus, includes all material information relating to this offering. To the extent that any statement that we make in a prospectus
supplement is inconsistent with statements made in this prospectus, the statements made in this prospectus will be deemed modified or
superseded by those made in a prospectus supplement. Please carefully read both this prospectus and any prospectus supplement before
buying any of the securities offered.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the sections entitled
“Where You Can Find More Information” and “Incorporation of Certain Information By Reference.”
This
prospectus provides you with a general description of the shares of Common Stock the Selling Stockholder may offer. To the extent that
any statement made in an accompanying prospectus supplement is inconsistent with statements made in this prospectus, the statements made
in this prospectus will be deemed modified or superseded by those made in the accompanying prospectus supplement. You should read both
this prospectus and any accompanying prospectus supplement together with the additional information described under the section “Where
You Can Find More Information” included elsewhere in this prospectus.
Neither
we nor the Selling Stockholder has authorized anyone to provide you with information different from that contained in this prospectus,
any accompanying prospectus supplement or in any related free-writing prospectus filed by us with the SEC. Neither we nor the Selling
Stockholder takes any responsibility for, or provides any assurance as to the reliability of, any information other than the information
in this prospectus, any accompanying prospectus supplement or in any related free-writing prospectus filed by us with the SEC. This prospectus
and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other
than the securities described in this prospectus or any accompanying prospectus supplement or an offer to sell or the solicitation of
an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information
appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free-writing prospectus
is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed
materially since those dates.
Except
as otherwise indicated herein or as the context otherwise requires, references in this prospectus to “AIM,” “the Company,”
“we,” “us,” “our” and similar references refer to AIM ImmunoTech Inc., an entity incorporated under
the laws of the State of Delaware.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus includes “forward-looking statements”, as such term is used within the meaning of the Private Securities Litigation
Reform Act of 1995. These “forward-looking statements” are not based on historical fact and involve assessments of certain
risks, developments, and uncertainties in our business looking to the future. Such forward-looking statements can be identified by the
use of terminology such as “may”, “will”, “should”, “expect”, “anticipate”,
“estimate”, “intend”, “continue”, or “believe”, or the negatives or other variations
of these terms or comparable terminology. Forward- looking statements may include projections, forecasts, or estimates of future performance
and developments. Forward-looking statements contained in this prospectus are based upon assumptions and assessments that we believe
to be reasonable as of the date of this prospectus. Whether those assumptions and assessments will be realized will be determined by
future factors, developments, and events, which are difficult to predict and may be beyond our control. Actual results, factors, developments,
and events may differ materially from those we assumed and assessed. Risks, uncertainties, contingencies, and developments, including
those identified in the “Risk Factors” section of this prospectus and in our most recent Annual Report on Form 10-K, subsequent
Quarterly Reports on Form 10-Q and other filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), incorporated by reference herein, could cause our future operating
results to differ materially from those set forth in any forward-looking statement. There can be no assurance that any such forward-looking
statement, projection, forecast or estimate contained can be realized or that actual returns, results, or business prospects will not
differ materially from those set forth in any forward-looking statement. Given these uncertainties, readers are cautioned not to place
undue reliance on such forward-looking statements. We disclaim any obligation to update any such factors or to publicly announce the
results of any revisions to any of the forward-looking statements contained herein to reflect future results, events or developments.
PROSPECTUS
SUMMARY
This
summary contains basic information about us and this offering. Because it is a summary, it does not contain all of the information that
you should consider before deciding to invest in our securities. Before you decide to invest in our securities, you should read this
entire prospectus carefully, any related free writing prospectus that we have authorized for use in connection with the offering and
the documents incorporated by reference herein, including the information included under the heading titled “Risk Factors.”
Unless otherwise noted, all share and per share information relating to our Common Stock in this prospectus has been adjusted to reflect
the one-for-12 reverse stock split of our issued and outstanding shares of Common Stock effected on August 26, 2016 and the one-for-44
reverse stock split effected on June 10, 2019.
Our
Company
AIM
ImmunoTech Inc. and its subsidiaries are an immuno-pharma company headquartered in Ocala, Florida, and focused on the research and development
of therapeutics to treat multiple types of cancers, viral diseases and immune-deficiency disorders. We have established a strong foundation
of laboratory, pre-clinical and clinical data with respect to the development of nucleic acids and natural interferon to enhance the
natural antiviral defense system of the human body, and to aid the development of therapeutic products for the treatment of certain cancers
and chronic diseases.
Our
flagship products are Ampligen (rintatolimod) and Alferon N Injection (Interferon alfa). Ampligen is a double-stranded RNA
(“dsRNA”) molecule being developed for globally important cancers, viral diseases and disorders of the immune system.
Ampligen has not been approved by the Food and Drug Administration (the “FDA”) or marketed in the United States, but is
approved for commercial sale in the Argentine Republic for the treatment of severe Chronic Fatigue Syndrome
(“CFS”).
We
are currently proceeding primarily in four areas:
| ● | Conducting
clinical trials to evaluate the efficacy and safety of Ampligen for the treatment of pancreatic
cancer. |
| ● | Evaluating
Ampligen across multiple cancers as a potential therapy that modifies the tumor microenvironment
with the goal of increasing anti-tumor responses to checkpoint inhibitors. |
| ● | Exploring
Ampligen’s antiviral activities and potential use as a prophylactic or treatment for
existing viruses, new viruses and mutated viruses thereof. |
| ● | Evaluating
Ampligen as a treatment for myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”)
and fatigue and/or the Post-COVID condition of fatigue. |
We
are prioritizing activities in an order related to the stage of development, with those clinical activities such as pancreatic cancer,
ME/CFS and Post-COVID conditions having priority over antiviral experimentation. We intend that priority clinical work be conducted in
trials authorized by the FDA or European Medicines Agency (“EMA”), which trials support a potential future new drug application
(“NDA”). However, our antiviral experimentation is designed to accumulate additional preliminary data supporting their hypothesis
that Ampligen is a powerful, broad-spectrum prophylaxis and early-onset therapeutic that may confer enhanced immunity and cross-protection.
Accordingly, we will conduct antiviral programs in those venues most readily available and able to generate valid proof-of-concept data,
including foreign venues.
Corporate
Information
Our
primary executive offices are located at 2117 SW Highway 484, Ocala FL 34473 and our telephone number is (352) 448-7797. Additional information
can be found on our website, https://aimimmuno.com and in our periodic and current reports filed with the SEC. Copies of our current
and periodic reports filed with the SEC are available to the public on a website maintained by the SEC at www.sec.gov and on our website.
The information contained on, or that can be accessed through, our website is not part of this prospectus and should not be considered
as part of this prospectus or in deciding whether to purchase our securities. No portion of our website is incorporated by reference
into this prospectus.
Smaller
Reporting Company
We
are currently a “smaller reporting company,” meaning that we are not an investment company, an asset-backed issuer, or a
majority-owned subsidiary of a parent company that is not a smaller reporting company and have a public float of less than $250 million
or annual revenues of less than $100 million during the most recently completed fiscal year. As a result of being considered a “smaller
reporting company,” we will be entitled to certain exemptions regarding the disclosure that we are required to provide in our SEC
filings. Specifically, “smaller reporting companies” are able to provide simplified executive compensation disclosures in
their filings; are exempt from the provisions of Section 404(b) of Sarbanes-Oxley requiring that independent registered public accounting
firms provide an attestation report on the effectiveness of internal control over financial reporting; and have certain other decreased
disclosure obligations in their SEC filings, including, among other things, only being required to provide two years of audited financial
statements in annual reports. Decreased disclosures in our SEC filings due to our status as a “smaller reporting company”
may make it harder for investors to analyze our results of operations and financial prospects.
THE
OFFERING
Shares
of Common Stock offered by
the
Selling Stockholder |
|
9,306,072
shares of our Common Stock issuable upon the exercise of Common Warrants. |
| |
|
|
Common
Stock to be outstanding
after
this offering |
|
73,012,518
shares
of Common Stock, assuming the exercise of all of the Common Warrants. |
| |
|
|
Registration
of the Common
Warrant
Shares |
|
Pursuant
to the terms of the Purchase Agreement, we agreed to file the registration statement, of which this prospectus forms a part, with respect
to the registration of the resale of the Common Warrant Shares as soon as practicable (and in any event within 45 calendar days of the
date of the Purchase Agreement), and to use commercially reasonable efforts to cause such registration statement to become effective
within 181 days following October 1, 2024, the closing date of the sale of the Common Warrants, and to keep such registration statement
effective at all times until no Purchaser owns any Common Warrants or Common Warrant Shares issuable upon exercise thereof. |
| |
|
|
| Use
of Proceeds |
|
The
Selling Stockholder will receive all of the proceeds of the sale of shares of Common Stock offered from time to time pursuant to
this prospectus. Accordingly, we will not receive any proceeds from the sale of shares of Common Stock that may be sold from time
to time pursuant to this prospectus; however, we will receive proceeds from any cash exercise of the Common Warrants. See “Use
of Proceeds.” We intend to use the proceeds from any cash exercise of the Common Warrants for general corporate purposes,
including using funds for working capital. |
| |
|
|
| Plan
of Distribution |
|
The
Selling Stockholder named in this prospectus, or its pledgees, donees, transferees, distributees, beneficiaries or other successors-in-interest,
may offer or sell the shares of Common Stock offered hereby from time to time through public or private transactions at prevailing
market prices, at prices related to prevailing market prices or at privately negotiated prices. The Selling Stockholder may also
resell the shares of Common Stock to or through underwriters, broker-dealers or agents, who may receive compensation in the form
of discounts, concessions or commissions. |
| |
|
|
| Risk
Factors |
|
See
“Risk Factors” beginning on page 3 of this prospectus and in the documents incorporated by reference in this prospectus
and the other information included in this prospectus for a discussion of factors you should carefully consider before investing
in our securities. |
| |
|
|
| NYSE
American trading symbol |
|
Our
Common Stock is listed on the NYSE American under the symbol “AIM.” |
The
number of shares of our Common Stock that will be outstanding immediately after this offering as shown above is based on 63,706,446
shares outstanding as of November 13, 2024 and excludes (vested and unvested):
| ● | 118,500
shares of our Common Stock issuable upon exercise of outstanding options granted under our
2009 equity incentive plans at a weighted average exercise price of $18.57 per share; and
2,814,142 shares of our Common Stock issuable upon exercise of outstanding options granted
under our 2018 equity incentive plans at a weighted average exercise price of $1.54 per share; |
| ● | 1,474,482
shares of our Common Stock available for issuance or future grant pursuant to our equity
incentive plan; |
| ● | 11,281,916
shares of our Common Stock issuable upon exercise of outstanding warrants issued to the Selling
Stockholder in a prior offering at a weighted average exercise price of $0.363 per share;
and |
| ● | 360,000
shares of our Common Stock issuable upon exercise of outstanding options granted to Azenova. |
RISK
FACTORS
Investing
in our Common Stock involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this
prospectus and in the documents we incorporate by reference into this prospectus before you decide to purchase our shares of Common Stock.
In particular, you should carefully consider and evaluate the risks and uncertainties described under the heading “Risk Factors”
in our most recent Annual Report on Form 10-K, as updated by annual, quarterly and other reports and documents that we file with the
SEC and incorporate by reference into this prospectus, or any prospectus, which risks could materially and adversely affect our business,
results of operations and financial condition, which in turn could materially and adversely affect the value of the shares of our Common
Stock offered by this prospectus. Our business, financial condition, results of operations and prospects could be materially and adversely
affected by these risks. As a result, you could lose all or part of your investment.
USE
OF PROCEEDS
The
Selling Stockholder will receive all of the proceeds of the sale of shares of Common Stock offered from time to time pursuant to
this prospectus. Accordingly, we will not receive any proceeds from the sale of shares of Common Stock that may be sold from time to
time pursuant to this prospectus; however, we will receive proceeds from any cash exercise of the Common Warrants. If all of the
Common Warrants are exercised for cash, we will receive approximately $2,605,700 in gross proceeds. We intend to use the proceeds
from any cash exercise of the Common Warrants for general corporate purposes, including using funds for working capital.
We
will bear the out-of-pocket costs, expenses and fees incurred in connection with the registration of the Common Warrant Shares registered
hereby, which may be resold by the Selling Stockholder pursuant to this prospectus. Other than registration expenses, such as SEC fees
and legal and accounting expenses, which we will bear, the Selling Stockholder will bear any underwriting discounts, commissions, placement
agent fees or other similar expenses payable with respect to sales of the Common Warrant Shares.
DIVIDEND
POLICY
We
have not declared or paid dividends to holders of our Common Stock since inception and do not plan to pay cash dividends in the foreseeable
future to such Common Stockholders. We currently intend to retain earnings, if any, to finance our growth.
DETERMINATION
OF THE OFFERING PRICE
The
prices at which the shares of our Common Stock covered by this prospectus may actually be sold by the Selling Stockholder will be determined
by the prevailing public market price for shares of our Common Stock or by negotiations between the Selling Stockholder and the buyer
or buyers of our Common Stock in private transactions or as otherwise described in the section of this prospectus entitled “Plan
of Distribution.”
DESCRIPTION
OF CAPITAL STOCK
The
following summary description sets forth some of the general terms and provisions of our capital stock. Because this is a summary description,
it does not contain all of the information that may be important to you. For a more detailed description of our capital stock, you should
refer to the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”) and our Amended and
Restated Certificate of Incorporation, as amended (the “Charter”), and our Restated and Amended Bylaws (“Bylaws”).
Copies of our Charter and Bylaws are included as exhibits to the registration statement of which this prospectus forms a part.
Capital
Stock
We
have authorized 350,000,000 shares of Common Stock, $0.001 par value per share, and 5,000,000 shares of preferred stock, $0.01 par value.
As of November 13, 2024, there were 63,706,446 shares of Common Stock issued and outstanding, no shares of Series
A Junior Participating preferred stock issued or outstanding, no shares of Series B preferred stock issued or outstanding, and
118,500 shares of our Common Stock issuable upon exercise of outstanding options granted under our 2009 equity incentive plans
at a weighted average exercise price of $18.57 per share, 2,814,142 shares of our Common Stock issuable upon exercise of
outstanding options granted under our 2018 equity incentive plans at a weighted average exercise price of $1.54 per share, 11,281,916
shares of our Common Stock issuable upon exercise of outstanding warrants issued to the Selling Stockholder in a prior offering at a
weighted average exercise price of $0.363 per share, 360,000 shares of our Common Stock issuable upon exercise of outstanding options
granted to Azenova. The authorized and unissued shares of Common Stock and the authorized and undesignated shares of preferred stock
are available for issuance without further action by our stockholders, unless such action is required by applicable law or the rules
of any stock exchange on which our securities may be listed. Unless approval of our stockholders is so required, our board of directors
does not intend to seek stockholder approval for the issuance and sale of our Common Stock or preferred stock.
Common
Stock
Holders
of our Common Stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and have no cumulative
voting rights. Holders of our Common Stock are entitled to receive ratably dividends as may be declared by our board of directors out
of funds legally available for that purpose, subject to any preferential dividend or other rights of any then outstanding preferred stock.
We have never paid cash dividends on our Common Stock and do not anticipate paying any cash dividends in the foreseeable future but intend
to retain our capital resources for reinvestment in our business. Any future disposition of dividends will be at the discretion of our
board of directors and will depend upon, among other things, our future earnings, operating and financial condition, capital requirements,
and other factors.
Holders
of our Common Stock do not have preemptive or conversion rights or other subscription rights. Upon liquidation, dissolution or winding-up,
holders of our Common Stock are entitled to share in all assets remaining after payment of all liabilities and the liquidation preferences
of any of our outstanding shares of preferred stock. The rights, preferences and privileges of holders of Common Stock are subject to
and may be adversely affected by the rights of the holders of shares of any series of our preferred stock that is currently outstanding
or that we may designate and issue in the future.
Except
as otherwise provided by law, our Charter and Bylaws, each as amended, in all matters other than the election of directors, the affirmative
vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders. In addition, except as otherwise provided by law, our Charter or our Bylaws,
directors are elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled
to vote on the election of directors.
Preferred
Stock
Holders
of our Series A Junior Participating preferred stock, if and when issued, will have the right to purchase from us shares of Common Stock
or Common Stock equivalents pursuant to the terms of the Third Amended and Restated Rights Agreement dated May 12, 2023.
Pursuant
to a February 2019 registration statement relating to a rights offering we distributed to our holders of Common Stock and to holders
of certain options and redeemable warrants as of February 14, 2019, at no charge, one non-transferable subscription right for each share
of Common Stock held or deemed held on the record date. Each right entitled the holder to purchase one unit, at a subscription price
of $1,000 per unit, consisting of one share of B Preferred and 114 warrants with an assumed exercise price of $8.80. The redeemable warrants
were exercisable for five years after the date of issuance. As of November 13, 2024, there were no warrants and no Series B Preferred
warrants outstanding related to the rights offering.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our Common Stock is Equiniti Trust Company.
Anti-Takeover
Effects of Provisions of Delaware Law, Our Charter, Our Bylaws and Our Stockholders’ Rights Plan
Delaware
Anti-Takeover Law
Section
203 of the Delaware General Corporation
We
are subject to Section 203 of the DGCL, which prohibits a Delaware corporation from engaging in any business combination with any interested
stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
| ● | before
such date, our board of directors of the corporation approved either the business combination
or the transaction that resulted in the stockholder becoming an interested stockholder; |
| ● | upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding
at the time the transaction began, excluding for purposes of determining the voting stock
outstanding (but not the outstanding voting stock owned by the interested stockholder) those
shares owned (i) by persons who are directors and also officers and (ii) employee stock plans
in which employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer; or |
| ● | on
or after such date, the business combination is approved by our board of directors and authorized
at an annual or special meeting of the stockholders, and not by written consent, by the affirmative
vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested
stockholder. |
In general, Section
203 defines business combination to include the following:
| ● | any
merger or consolidation involving the corporation and the interested stockholder; |
| ● | any
sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation
involving the interested stockholder; |
| ● | subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation
of any stock of the corporation to the interested stockholder; |
| ● | any
transaction involving the corporation that has the effect of increasing the proportionate
share of the stock or any class or series of the corporation beneficially owned by the interested
stockholder; or |
| ● | the
receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges
or other financial benefits by or through the corporation. |
In
general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s affiliates
and associates, beneficially owns, or within three years before the time of determination of interested stockholder status did own, 15%
or more of the outstanding voting stock of the corporation. Prior to entry into the Purchase Agreement our board of directors approved
the issuance of Securities to the Selling Stockholder under the Purchase Agreement and related documents for purposes of Section 203.
Charter
and Bylaws
Our
Charter and/or Bylaws provide that:
| ● | our
Bylaws may be amended or repealed by our board of directors or our stockholders; |
| ● | our
board of directors will be authorized to issue, without stockholder approval, preferred stock,
the rights of which will be determined at the discretion of our board of directors and that,
if issued, could operate as a “poison pill” to dilute the stock ownership of
a potential hostile acquirer to prevent an acquisition that our board of directors does not
approve; |
| ● | our
stockholders do not have cumulative voting rights, and therefore our stockholders holding
a majority of the shares of Common Stock outstanding will be able to elect all of our directors;
and |
| ● | our
stockholders must comply with advance notice provisions to bring business before or nominate
directors for election at a stockholder meeting. |
Stockholder
Rights Plan
On
November 19, 2002, our board of directors declared a dividend distribution of one Right for each outstanding share of Common Stock to
stockholders of record at the close of business on November 29, 2002 pursuant to our rights agreement (as subsequently amended and restated,
the “Rights Agreement”) between us and our Rights Agent. Each Right entitles the registered holder of one share of our Common
Stock to purchase from the Company a unit consisting of one one-hundredth of a share (a “Unit”) of Series A Junior Participating
Preferred Stock, par value $0.01 per share at a Purchase Price of $4.00 per Unit, subject to adjustment. All terms not specifically defined
herein have the definition set forth in the Rights Agreement. The description and terms of the Rights are set forth in the Rights Agreement.
Prior to entry into the Purchase Agreement, our board of directors exempted the Selling Stockholder and its Affiliates and Associates
from becoming Acquiring Persons under the rights plan created under the Rights Agreement by virtue of receiving Securities under the
Purchase Agreement and related documents or under any other agreement between the Company and the Selling Stockholder.
The
current Amended and Restated Rights Agreement is included as an exhibit to the Company’s Quarterly Report on Form 10-Q for the
period ended March 31, 2023 (File No. 001-27072) filed with the SEC on May, 15, 2023. Such Plan and the Rights are described In Part
II, ITEM 5: Other Information in the foregoing Report on Form 10-Q. All of the foregoing are incorporated by reference herein.
Potential
Effects of Authorized but Unissued Stock
We
have shares of Common Stock and preferred stock available for future issuance without stockholder approval. We may utilize these additional
shares for a variety of corporate purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions
or payment as a dividend on the capital stock.
The
existence of unissued and unreserved Common Stock and preferred stock may enable our board of directors to issue shares to persons friendly
to current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.
In addition, our board of directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred stock,
all to the fullest extent permissible under the DGCL and subject to any limitations set forth in our Certificate of Incorporation. The
purpose of authorizing our board of directors to issue preferred stock and to determine the rights and preferences applicable to such
preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while
providing desirable flexibility in connection with possible financings, acquisitions and other corporate purposes, could have the effect
of making it more difficult for a third-party to acquire, or could discourage a third-party from acquiring, a majority of our outstanding
voting stock.
DESCRIPTION
OF THE PRIVATE PLACEMENT
On
September 30, 2024, we entered into a Purchase Agreement with the Selling Stockholder as Purchaser, pursuant to which we issued to the
Selling Stockholder, (i) in a registered direct offering, 4,653,036 shares of our Common Stock (“Shares”) and (ii) in the
concurrent Private Placement, we issued the Common Warrants to purchase an aggregate of up to 9,306,072 Common Warrant Shares, each with
an exercise price of $0.28. Such registered direct offering and concurrent Private Placement are referred to herein as the “Transactions.”
The purchase price for Shares in the registered direct offering was $0.27 per Share.
We
received aggregate gross proceeds from the Transactions of approximately $1.26 million, before deducting fees to the Placement Agent
and other estimated offering expenses payable by us. The Shares were offered by us pursuant to a shelf registration statement on Form
S-3 (File No. 333-262280), which was declared effective on February 4, 2022. The Common Warrants and the Common Warrant Shares issued
in the Private Placement were not registered under the Securities Act. Rather the Common Warrants and the Common Warrant Shares were
issued pursuant to the exemption from registration provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder.
The C Warrants and D Warrants are not exercisable until December 3, 2024, and will expire, respectively, 24 months and five years and
six months after that date.
Exercise
Limitation. Selling Stockholder will not have the right to exercise any portion of the Common Warrants if it (together with its affiliates)
would beneficially own in excess of 4.99% of the number of shares of our Common Stock outstanding immediately after giving effect to
the exercise, as such percentage ownership is determined in accordance with the terms of such warrants. However, any holder may increase
or decrease such percentage, provided that any increase will not be effective until the 61st day after such election.
Exercise
Price Adjustment. The exercise price of the Common Warrants is subject to appropriate adjustment in the event of certain stock dividends
and distributions, stock splits, stock combinations, reclassifications or similar events affecting our Common Stock.
Exchange
Listing. There is no established trading market for Common Warrants and we do not expect a market to develop. In addition, we do
not intend to apply for the listing of the Common Warrants on any national securities exchange or other trading market.
Fundamental
Transactions. If a fundamental transaction occurs, then the successor entity will succeed to, and be substituted for us, and may
exercise every right and power that we may exercise and will assume all of our obligations under the Common Warrants with the same effect
as if such successor entity had been named in the warrant itself. If holders of our Common Stock are given a choice as to the securities,
cash or property to be received in a fundamental transaction, then the holder shall be given the same choice as to the consideration
it receives upon any exercise of the Common Warrants following such fundamental transaction. In addition, the successor entity, at the
request of warrant holders, will be obligated to purchase any unexercised portion of the Common Warrants in accordance with the terms
of such warrants. Notwithstanding the foregoing, in the event of a fundamental transaction, the holders of the Common Warrants have the
right to require us or a successor entity to redeem the common warrants for cash in the amount of the Black Scholes Value (as defined
in each warrant) of the unexercised portion of the common warrants concurrently with or within 30 days following the consummation of
a fundamental transaction.
Rights
as a Stockholder. Except as otherwise provided in the Common Warrants or by virtue of such Warrant holder’s ownership of shares
of our Common Stock, the holder of a Common Warrants will not have the rights or privileges of a holder of our Common Stock, including
any voting rights, until the holder exercises such warrant.
Resale/Registration
Rights. Pursuant to the Purchase Agreement and the Common Warrants, we have filed this Registration Statement. We are using commercially
reasonable efforts to cause the Registration Statement to become effective within 181 days following October 1, 2024 and to keep it effective
at all times until no Purchaser owns any Warrants or Warrant Shares issuable upon exercise thereof.
Maxim
Group LLC acted as the Placement Agent on a “reasonable best efforts” basis, in connection with the Transactions pursuant
to the Placement Agency Agreement by and between us and the Placement Agent. Pursuant to the Placement Agency Agreement, the Placement
Agent was paid a cash fee of 8% of the aggregate gross proceeds paid to us for the securities sold in the Transactions and reimbursement.
In addition, we have reimbursed the Placement Agent $65,000 for certain offering-related expenses.
SELLING
STOCKHOLDER
The
shares of our Common Stock being offered by the Selling Stockholder are those issuable to the Selling Stockholder upon exercise of the
Common Warrants. For additional information regarding the issuances of the Common Warrants and the Common Warrant Shares, see “Description
of the Private Placement” elsewhere in this prospectus. We are registering these shares of our Common Stock in order to permit
the Selling Stockholder to offer them for resale from time to time. Except for the ownership of shares of our Common Stock and the Common
Warrants purchased in the prior transaction and the Transactions, the Selling Stockholder has not had any material relationship with
us within the past three years.
The
following table sets forth certain information with respect to the Selling Stockholder, including (i) the number of shares of our Common
Stock beneficially owned by the Selling Stockholder, including and securities exercisable for shares of our Common Stock, prior to this
offering without regard to any beneficial ownership limitations contained in the Common Warrants (as specified below), (ii) the number
of shares of our Common Stock being offered by the Selling Stockholder pursuant to this prospectus and (iii) the Selling Stockholder’s
beneficial ownership after completion of this offering assuming the sale of all of the shares of our Common Stock covered by this prospectus
and the shares issuable upon exercise of the warrants issued in the prior offering to Armistice. The registration of the shares
of our Common Stock issuable to the Selling Stockholder upon the exercise of the Common Warrants does not necessarily mean that the Selling
Stockholder will sell all or any of such shares, but the number of shares and percentages set forth in the final two columns below assume
that all shares of our Common Stock being offered by the Selling Stockholder are sold.
The
table is based on information supplied to us by the Selling Stockholder, with beneficial ownership and percentage ownership determined
in accordance with the rules and regulations of the SEC and includes voting or investment power with respect to shares of stock. This
information does not necessarily indicate beneficial ownership for any other purpose. In computing the number of shares beneficially
owned by the Selling Stockholder and the percentage ownership of the Selling Stockholder, shares of our Common Stock subject to the Common
Warrants held by the Selling Stockholder that are exercisable within 60 days after October 1, 2024, are deemed outstanding. The percentage
of beneficial ownership after this offering is based on 63,706,446 shares of our Common Stock outstanding on November 13,
2024.
This
prospectus covers the resale of 9,306,072 shares of our Common Stock that may be sold or otherwise disposed of by the Selling Stockholder.
Such shares of our Common Stock are issuable to the Selling Stockholder upon the exercise of the Common Warrants. The C Warrants and
D Warrants are not exercisable until December 3, 2024, and will expire, respectively, 24 months and five years and six months after that
date. The Common Warrants have an exercise price of $0.28 per share. See “Description of the Private Placement” above for
a more complete description of the Common Warrants. Under the terms of the Common Warrants, the Selling Stockholder may not exercise
the Common Warrants to the extent such exercise would cause such Selling Stockholder, together with its affiliates and attribution parties,
to beneficially own a number of shares of Common Stock that would exceed 4.99%, as applicable, of our then outstanding Common Stock following
such exercise, excluding for purposes of such determination shares of Common Stock issuable upon exercise of such Common Warrants that
have not been exercised. The number of shares in the second and fourth columns do not reflect this limitation. The Selling Stockholder
may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
| Name of Selling Stockholder | |
Number of Shares
of Common Stock
Beneficially
Owned Prior to
Offering(1) | | |
Maximum
Number of Shares
of Common Stock
offered for Resale in this
Offering | | |
Number of Shares
of Common Stock
Beneficially
Owned After
Offering | | |
Percentage
of Shares
Beneficially
Owned after
Offering(1) | |
| Armistice Capital, LLC(1)(2) | |
| 20,587,988 | | |
| 9,306,072 | | |
| 0 | | |
| 0 | % |
(1)
|
Consists
of (i) 9,306,072 Common Warrant Shares issuable upon the exercise of the Common Warrants
and (ii) 11,281,916 shares issuable upon the exercise of the common stock warrants issued
in the prior offering to Armistice. All of the foregoing warrants are subject to a beneficial
ownership limitation of 4.99% of the number of shares of our Common Stock outstanding, which
in each case restricts the Selling Stockholder from exercising that portion of the warrants
that would result in the Selling Stockholder and its affiliates owning, after exercise, a
number of shares of Common Stock in excess of the beneficial ownership limitation. The number
of shares set forth in the above table does not reflect the application of this limitation. |
| |
|
| (2) |
The
securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”),
and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager
of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. The warrants are subject to a beneficial ownership
limitation of 4.99%, which such limitation restricts the Selling Stockholder from exercising that portion of the warrants that would
result in the Selling Stockholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the
beneficial ownership limitation. The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue,
7th Floor, New York, NY 10022. |
PLAN
OF DISTRIBUTION
The
Selling Stockholder of the securities and any of its pledgees, assignees and successors-in-interest may, from time to time, sell any
or all of their securities covered hereby on the NYSE American or any other stock exchange, market or trading facility on which the securities
are traded or in private transactions. These sales may be at fixed or negotiated prices. The Selling Stockholder may use any one or more
of the following methods when selling securities:
| ● | ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | block
trades in which the broker-dealer will attempt to sell the securities as agent but may position
and resell a portion of the block as principal to facilitate the transaction; |
| ● | purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | an
exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately
negotiated transactions; |
| ● | settlement
of short sales; |
| ● | in
transactions through broker-dealers that agree with the Selling Stockholder to sell a specified
number of such securities at a stipulated price per security; |
| ● | through
the writing or settlement of options or other hedging transactions, whether through an options
exchange or otherwise; |
| ● | a
combination of any such methods of sale; or |
| ● | any
other method permitted pursuant to applicable law. |
The
Selling Stockholder may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available,
rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholder may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholder (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the Selling Stockholder may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Stockholder may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholder may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholder and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed us that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
We
are required to pay certain fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify
the Selling Stockholder against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholder
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect
or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar
effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholder will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common
Stock by the Selling Stockholder or any other person. We will make copies of this prospectus available to the Selling Stockholder and
have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
LEGAL
MATTERS
Silverman,
Shin & Schneider PLLC, New York, New York will pass upon the validity of the shares of our Common Stock being registered by the registration
statement of which this prospectus is a part.
EXPERTS
The
consolidated financial statements of AIM ImmunoTech, Inc. (the Company) as of December 31, 2023 and 2022 and for each of the two
years in the period ended December 31, 2023 incorporated by reference in this prospectus and in the registration statement have been
so incorporated in reliance upon the report of BDO USA, P.C., an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference into this prospectus the information contained in other documents we file with the SEC, which
means that we can disclose important information to you by referring you to those documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to be modified or superseded, for purposes
of this prospectus, to the extent that a statement contained in or omitted from this prospectus, or in any other subsequently filed document
that also is or is deemed to be incorporated by reference in this prospectus, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. We incorporate
by reference the documents listed below which have been filed by us and any future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed
on such form that are related to such items unless such Form 8-K expressly provides to the contrary) subsequent to the date of this prospectus
and before the termination or completion of the offering of the securities covered by this prospectus. We incorporate by reference into
this prospectus and the registration statement of which this prospectus is a part the information or documents listed below that we have
filed with the SEC (Commission File No. 001-27072):
| 1. | Our
Annual Report on Form 10-K for the year ended December 31, 2023; |
| 2. | Our
Quarterly Reports on Form 10-Q, for the fiscal quarters ended March 31, 2024, June 30, 2024
and September 30, 2024; |
| 3. | Our
Current Reports on Form 8-K, as filed with the SEC on January
10, 2024, January
10, 2024, January
25, 2024, February
9, 2024, .February
20, 2024, June
3, 2024, July
15, 2024, August
1, 2024, September
12, 2024, and October
1, 2024 |
| 4. | Our
Definitive Proxy Statement on Schedule 14A filed with the SEC on November 4, 2024, and all
Definitive Additional Materials filed then and thereafter; and |
| 5. | The
description of the capital stock contained in our Registration Statement on Form S-1 (No.
333-280761) filed July 11, 2024 as updated together with any subsequent amendment or report
filed with the SEC for the purpose of updating this description. |
Any
statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed
document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You
may request, orally or in writing, a copy of these documents, which will be provided to you at no cost (other than exhibits, unless such
exhibits are specifically incorporate by reference), by contacting AIM ImmunoTech Inc. at 2117 SW Highway 484, Ocala FL 34473, Attention:
Investor Relations, telephone No. (352) 448-7797. You may also access these documents on our website at https://aimimmuno.com/.
Information on our website, any subsection, page, or other subdivision of our website, or any website linked to by content on the website,
is not part of this prospectus and you should not rely on that information unless that information is also in this prospectus or incorporated
by reference in this prospectus.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act and in accordance therewith file reports, proxy statements and other
information with the SEC. Our filings are available to the public over the Internet at the SEC’s website at www.sec.gov,
as well as at our website at https://aimimmuno.com/. Information on our website, any subsection, page, or other subdivision
of our website, or any website linked to by content on the website, is not part of this prospectus and you should not rely on that information
unless that information is also in this prospectus or incorporated by reference in this prospectus
9,306,072
Shares of Common Stock
AIM
ImmunoTech Inc.
PROSPECTUS
November
, 2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
| Item
13. |
Other
Expenses of Issuance and Distribution. |
The
following table sets forth the estimated costs and expenses, payable by the Company in connection with the registration and sale of the
Common Stock being registered. All amounts are estimates except the SEC registration fee.
| | |
Amount | |
| SEC registration fee | |
$ | 384.69 | |
| Accounting fees and expenses | |
| 12,000 | |
| Legal fees and expenses | |
| 20,000 | |
| Miscellaneous | |
| 7,615.31 | |
| | |
| | |
| Total expenses | |
$ | 40,000.00 | |
| Item
14. |
Indemnification
of Directors and Officers. |
Section
145 of the DGCL inter alia, empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including attorneys’ fees) actually and reasonably incurred
in connection with the defense or settlement of any such threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any
such indemnification may be made only as authorized in each specific case upon a determination by the stockholders or disinterested directors
or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145. We maintain policies
insuring our officers and directors against certain liabilities for actions taken in such capacities, including liabilities under the
Securities Act.
Section
102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, provided
that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL (relating to unlawful payment of dividends and unlawful stock purchase or redemption)
or (iv) for any transaction from which the director derived an improper personal benefit.
Article
Ninth of our Amended and Restated Certificate of Incorporation provides that we shall indemnify to the extent permitted by Delaware law
any person whom it may indemnify thereunder, including directors, officers, employees and agents. Such indemnification (other than an
order by a court) shall be made by us only upon a determination that indemnification is proper in the circumstances because the individual
met the applicable standard of conduct. Advances for such indemnification may be made pending such determination. In addition, the Registrant’s
Amended and Restated Certificate of Incorporation eliminates, to the extent permitted by Delaware law, personal liability of directors
to the Registrant and its stockholders for monetary damages for breach of fiduciary duty as directors.
The
foregoing discussion of our amended and restated certificate of incorporation and Delaware law is not intended to be exhaustive and is
qualified in its entirety by such certificate of incorporation or law.
Insofar
as the foregoing provisions permit indemnification of directors, executive officers, or persons controlling us for liability arising
under the Securities Act of 1933, as amended, or the Securities Act, we have been informed that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item
15. |
Recent
Sales of Unregistered Securities. |
On
September 30, 2024, the Company entered into a securities purchase agreement with the Selling Securityholder, pursuant to which
the Company issued to the Selling Stockholder, (i) in a registered direct offering, 4,653,036 shares of our Common Stock and (ii) in
the concurrent Private Placement, Common Warrants to purchase an aggregate of up to 9,306,072 Common Warrant shares, each with an exercise
price of $0.28. The Common Warrants consist of Class C common warrants to purchase an aggregate of up to 4,653,036 shares and Class D
common warrants to purchase an aggregate of up to 4,653,036 shares.
On
May 31, 2024, the Company entered into a securities purchase agreement with the Selling Securityholder pursuant to which the Company
issued to the Selling Stockholder, (i) in a registered direct offering, shares of our Common Stock and (ii) in the concurrent Private
Placement, common warrants to purchase an aggregate of up to 11,281,916 shares, each with an exercise price of $0.363. The common warrants
consist of Class A common warrants to purchase an aggregate of up to 5,640,958 shares and Class B common warrants to purchase an aggregate
of up to 5,640,958 shares.
2018
Equity Incentive Plan
During
the year ended December 31, 2021, the Company issued a total of 613,512 options under the 2018 Equity Incentive Plan, effective September
12, 2018 which will continue in effect for a period of 10 years from its effective date (the “2018 Plan”). During the year
ended December 31, 2022, the Company issued a total of 850,000 options under the 2018 Plan. During the year ended December 31, 2023,
the Company issued a total of 400,000 options under the 2018 Plan. Since the end of fiscal 2023, the Company did not issue any securities
under the 2018 Plan.
Employees
and Directors Stock Purchase Plan (Not equity compensation)
On
July 7, 2020, the Board approved a plan pursuant to which all directors, officers, and employees could purchase from the Company up to
an aggregate of $500,000 worth of shares at the market price. Pursuant to NYSE American rules, this plan was effective for a sixty-day
period commencing upon the date that the NYSE American approved the Company’s Supplemental Listing Application. The Company created
successive new plans following the expiration of the July 7, 2020 plan. The latest plan was approved by the Board on October 21,
2024 and expires in December 2024.
Under
these plans, during the fiscal year ended December 31, 2021, the Company issued a total of 132,238 shares of common stock at prices ranging
from $1.16 to $2.35 for a total of $205,000. During the fiscal year ended December 31, 2022, the Company issued a total of 86,817 shares
of common stock at prices ranging from $0.76 to $1.02 for a total of $80,000. During the fiscal year ended December 31, 2023, the Company
issued a total of 419,285 shares of common stock at prices ranging from $0.31 to $0.67 for a total of $150,500. Since the end of fiscal
2023, the Company issued 335,603 shares of common stock at prices ranging from $0.33 to $0.405 for a total of $120,001.
Azenova
On
December 6, 2023, the Company issued to Azenova, LLC, an option to purchase up to 360,000 shares of Company common stock at a price equal
to $0.46 per share. This Option was awarded pursuant to the Consulting Agreement dated October 16, 2023 between the Company and Azenova,
LLC.
The
private offers, sales and issuances of securities described above was deemed to be exempt from registration under the Securities Act
in reliance on either Section 4(a)(2) in that the issuance of securities to the accredited investors did not involve a public offering,
or Rule 701 in that the transactions were under compensatory benefit plans and contracts relating to compensation as provided under Rule
701.
| Item
16. |
Exhibits
and Financial Statement Schedules. |
The
exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which immediately precedes the
Signature Page and which Exhibit Index is hereby incorporated by reference.
The
undersigned registrant hereby undertakes:
(a)
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee
Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided,
however, That:
(A)
Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement; and
(B)
Paragraphs (a)(1)(i), (ii), and (iii) of this section do not apply if the registration statement is on Form S-1, Form S-3, Form SF-3
or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or, as to a registration statement on Form S-3, Form SF-3 or Form F-3,
is contained in a form of prospectus filed pursuant to § 230.424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule 430B:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) (§ 230.415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of
sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately prior to such effective date; or
(ii)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(iii)
If the registrant is relying on § 230.430D:
(A)
Each prospectus filed by the registrant pursuant to § 230.424(b)(3) and (h) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to § 230.424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on § 230.430D relating to an offering made pursuant to § 230.415(a)(1)(vii) or (a)(1)(xii) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in §230.430D, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date; or
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
INDEX
TO EXHIBITS
Exhibit
No. |
|
Description |
| |
|
|
| 1.1 |
|
Placement
Agency Agreement, dated May 31, 2024, by and among the Company and Maxim Group LLC. (incorporated by reference to exhibit 1.1 to
the Company’s Current report on Form 8-K (No. 001-27072) filed June 3, 2024). |
| |
|
|
| 3.1(i)(1) |
|
Certificate of Incorporation, as amended and Restated (incorporated by reference to exhibits 3.1(i)(1) to the Company’s Quarterly report on Form 10-Q (No. 001-27072) for the period ended September 30, 2024 filed November 14, 2024). |
| |
|
|
| 3.3(i) |
|
Amendment
to Certificate of Incorporation (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement on Schedule
14A (No. 001-13441) filed September 16, 2011). |
| |
|
|
| 3.4(i) |
|
Amendment
to Certificate of Incorporation (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement on
Schedule 14A (No. 000-27072) filed June 27, 2016). |
| |
|
|
| 3.5(i) |
|
Amendment
to Certificate of Incorporation(incorporated by reference to exhibit 3.11 to the Company’s Current report on Form 8-K (No.
001-27072) filed June 5, 2019). |
| |
|
|
| 3.6(i) |
|
Amendment
to Certificate of Incorporation (incorporated by reference to Exhibit 3.11 to the Company’s Current report on Form 8-K (No.
001-27072) filed August 23, 2019). |
| |
|
|
| 3.7(i) |
|
Certificate
of Designation of Preference, Rights and Limitations of Series B Convertible Preferred Stock (incorporated by reference to Exhibit
3.5 to the Amendment to the Company’s Registration Statement on Form S-1/A (No. 333-229051) filed February 6, 2019). |
| |
|
|
| 3.8(ii) |
|
Amended
and Restated By-Laws. (incorporated by reference to Exhibit 3.1(ii) to the Company’s
current report on Form 8-K (No. 001-27072) filed August 1, 2024).
|
| |
|
|
| 4.1 |
|
Specimen certificate representing our Common Stock (incorporated by reference to Exhibit 4.1 to the Company’s Quarterly report on Form 10-Q (No. 000-27072) for the period ended September 30, 2024). |
| |
|
|
| 4.2 |
|
Amended
and Restated Rights Agreement, dated as of November 14, 2017, between the Company and American Stock Transfer & Trust Company
LLC. The Amended and Restated Right Agreement includes the Form of Certificate of Designation, Preferences and Rights of the Series
A Junior Participating Preferred Stock, the Form of Rights Certificate and the Summary of the Right to Purchase Preferred Stock (incorporated
by reference to Exhibit 1 to the Company’s Registration Statement on Form 8-A12B (No. 001-27072) filed November 14, 2017).
|
| |
|
|
| 4.3 |
|
Amended
and Restated Rights Agreement, dated as of November 9, 2022, between the Company and American Stock Transfer & Trust Company
LLC. (incorporated by reference to Exhibit 4.4 to the Company’s Registration Statement on Form 8-A12B (No. 001-27072) filed
November 14, 2022). |
| |
|
|
| 4.4 |
|
Amended
and Restated Rights Agreement, dated as of February 9, 2023, between the Company and American Stock Transfer & Trust Company
LLC. (incorporated by reference to Exhibit 1 to the Company’s Registration Statement on Form 8-A12B (No. 001-27072) filed February
10, 2023). |
| |
|
|
| 4.5 |
|
Third
Amended and Restated Rights Agreement, dated May 12, 2023 between the Company and American Stock Transfer & Trust Company, LLC.
(incorporated by reference to exhibit 4.6 to Amendment No. 3 to the Company’s Registration Statement on Form 8-A12B (No. 001-27072)
filed May 15, 2023). |
| |
|
|
| 4.6 |
|
Form
of Indenture filed with Form S-3 Universal Shelf Registration Statement (incorporated by
reference to Exhibit 4.4 to the Company’s Form S-3 Registration Statement (No. 333-
262280) filed January 21, 2022).
|
| |
|
|
| 4.7 |
|
Form
of Warrant pursuant to August 30, 2016 Securities Purchase Agreement (incorporated by reference to Exhibit 4.1 to the Company’s
Current report on Form 8-K (No. 000-270720 filed September 1, 2016). |
| |
|
|
| 4.8 |
|
Form
of Warrant pursuant to February 1, 2017 Securities Purchase Agreement (incorporated by reference to Exhibit 4.1 to the Company’s
Current report on Form 8-K (No. 000-27072) filed February 3, 2017). |
| |
|
|
| 4.9 |
|
Rights
Offering Form of Non-Transferable Subscription Rights Certificate (incorporated by reference to Exhibit 4.14 to the Company’s
Registration Statement on Form S-1/A (No. 333-229051) filed February 6, 2019). |
| |
|
|
| 4.10 |
|
Rights
Offering Form of Warrant Agreement (incorporated by reference to Exhibit 4.1 to the Company’s Current report on Form 8-K filed
February 27, 2019 and is hereby incorporated by reference). |
| |
|
|
| 4.11 |
|
Rights
Offering Form of Warrant Certificate (incorporated by reference to Exhibit 4.15 to the Company’s Registration Statement on
Form S-1/A (No. 333-229051) filed February 6, 2019). |
| |
|
|
| 4.12 |
|
Rights
Offering Warrant Agency Agreement with American Stock Transfer & Trust (incorporated by reference to Exhibit 4.1 to the Company’s
Current report on Form 8-K (No.001-27072) filed March 8, 2019). |
| |
|
|
| 4.13 |
|
Form
of Class A and Class B Warrants to Purchase Common Stock (June 2024 (incorporated by reference to exhibit 4.1 to the Company’s
Current report on Form 8-K (No. 001-27072) filed June 3, 2024). |
| |
|
|
| 5.1 |
|
Opinion
of Silverman Shin & Schneider PLLC* |
| |
|
|
| 10.1 |
|
Form
of Confidentiality, Invention and Non-Compete Agreement (incorporated by reference to Exhibits of the Company’s Registration
Statement on Form S-1 (No. 33-93314) filed November 2, 1995). |
| |
|
|
| 10.2 |
|
Form
of Clinical Research Agreement (incorporated by reference to Exhibits of the Company’s Registration Statement on Form S-1 (No.
33-93314) filed November 2, 1995. |
| |
|
|
| 10.3 |
|
Supply
Agreement with HollisterStier Laboratories LLC dated December 5, 2005 (incorporated by reference to Exhibit 10.46 to the Company’s
Annual report on Form 10-K (No. 001-13441) for the year ended December 31, 2005). |
| |
|
|
| 10.4 |
|
Amendment
to Supply Agreement with HollisterStier Laboratories LLC dated February 25, 2010 (incorporated by reference to Exhibit 10.68 to the
Company’s Annual report on Form 10-K (No. 001-13441) for the year ended December 31, 2009). |
| 10.5 |
|
Vendor
Agreement with Armada Healthcare, LLC dated August 15, 2011 (incorporated by reference Exhibit
10.2 to the Company’s Quarterly report on Form 10-Q (No. 001-131) for the period ended
September 30, 2011).
|
| |
|
|
| 10.6 |
|
Amendment
to Supply Agreement with HollisterStier Laboratories LLC executed September 9, 2011 (incorporated by reference to Exhibit 10.22 to
the Company’s Annual report on Form 10-K (No. 001-13441) for the year ended December 31, 2011). |
| |
|
|
| 10.7 |
|
Vendor
Agreement extension with Armada Healthcare, LLC dated August 14, 2012 (incorporated by reference to Exhibit 10.1 to the Company’s
Current report on Form 8-K (No. 000-27072) filed August 15, 2012). |
| |
|
|
| 10.8 |
|
Vendor
Agreement extension with Armada Healthcare, LLC dated July 19, 2013 (incorporated by reference to Exhibit 10.22 to the Company’s
Annual report on Form 10-K (No. 000-27072) for the year ended December 31, 2013). |
| |
|
|
| 10.9 |
|
Vendor
Agreement extension with Bio Ridge Pharma, LLC and Armada Healthcare, LLC dated August 8, 2014. (incorporated by reference to Exhibit
10.24 to the Company’s Annual report on Form 10-K (No. 000-27072) for the year ended December 31, 2014). |
| |
|
|
| 10.10 |
|
Sales,
Marketing, Distribution, and Supply Agreement with Emerge Health Pty Ltd. dated March 9, 2015. (incorporated by reference to Exhibit
10.25 to the Company’s Annual report on Form 10-K (No. 000-27072) for the year ended December 31, 2014).** |
| |
|
|
| 10.11 |
|
Vendor
Agreement extension with Armada Healthcare, LLC dated July 29, 2015 (incorporated by reference to Exhibit 10.1 to the Company’s
Quarterly report on Form 10-Q (No. 000-27072) for the period ended June 30, 2015). |
| |
|
|
| 10.12 |
|
Early
Access Agreement with Impatients N.V. dated August 3, 2015. (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly
report on Form 10-Q (No. 001-13441) for the period ended September 30, 2015).** |
| |
|
|
| 10.13 |
|
Sales,
Marketing, Distribution, and Supply Agreement with Emerge Health Pty Ltd. dated August 6, 2015. (incorporated by reference to Exhibit
10.4 to the Company’s Quarterly report on Form 10-Q (No. 000-27072) for the period ended June 30, 2015).** |
| |
|
|
| 10.14 |
|
Addendum
to Early Access Agreement with Impatients N.V. dated October 16, 2015. (incorporated by reference to Exhibit 10.2 to the Company’s
Quarterly report on Form 10-Q (No. 001-13441) for the period ended September 30, 2015).** |
| |
|
|
| 10.15 |
|
2016
Senior Executive Deferred Cash Performance Award Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current report
on Form 8-K (No. 000-27072) filed February 4, 2016). |
| |
|
|
| 10.16 |
|
Sales,
Marketing, Distribution and Supply Agreement (the “Agreement”) with Scientific Products Pharmaceutical Co. LTD dated
March 3, 2016 (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly report on Form 10-Q (No. 000-27072) for
the period ended March 31, 2016).** |
| |
|
|
| 10.17 |
|
Agreement
between Avrio Biopharmaceuticals (“Avrio”) and the Company dated July 20, 2016 (incorporated by reference to Exhibit
10.1 to the Company’s Quarterly report on Form 10-Q (No.000-27072) for the period ended June 30, 2016).** |
| |
|
|
| 10.18 |
|
Licensing
Agreement dated April 13, 2016 with Lonza Sales AG (incorporated by reference to Exhibit 10.2 to the Company’s report Form
10-Q/A (No. 000-27072) for the period ended March 31, 2016).** |
| |
|
|
| 10.19 |
|
Form
of Securities Purchase Agreement entered into on August 30, 2016 (incorporated by reference to Exhibit 10.1 to the Company’s
Current report Form 8-K (No. 000-27072) filed September 1, 2016). |
| |
|
|
| 10.20 |
|
Amended
and Restated Early Access Agreement with Impatients N.V. dated May 20, 2016. (incorporated by reference to Exhibit 10.1 to the Company’s
report Form 8-K/A (No. 000-27072) filed May 8, 2017).** |
| |
|
|
| 10.21 |
|
December
13, 2016 Amendment No. 1 to Amended and Restated Early Access Agreement with Impatients N.V. (incorporated by reference to Exhibit
10.45 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2017). |
| |
|
|
| 10.22 |
|
June
28, 2017 Amendment No. 2 to Amended and Restated Early Access Agreement with Impatients N.V. (incorporated by reference to Exhibit
10.46 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2017). |
| 10.23 |
|
February
14, 2018 Amendment No. 3 to Amended and Restated Early Access Agreement with Impatients N.V. (incorporated by reference to Exhibit
10.47 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2017). |
| |
|
|
| 10.24 |
|
March
26, 2018 Amendment No. 4 to Amended and Restated Early Access Agreement with Impatients N.V. (incorporated by reference to Exhibit
10.48 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2017). |
| |
|
|
| 10.25 |
|
Form
of Stock Purchase Agreement entered into on March 21, 2018 (incorporated by reference to Exhibit 10.1 to the Company’s Current
report on Form 8-K (No. 001-27072) filed March 22, 2018). |
| |
|
|
| 10.26 |
|
Form
of Securities Purchase Agreement entered into on May 24, 2018 (incorporated by reference to Exhibit 10.55 to the Company’s
Registration Statement on Form S-1 (No. 333-226057) filed July 2, 2018). |
| |
|
|
| 10.27 |
|
Amended
and Restated 2018 Equity Incentive Plan (filed with the Securities and Exchange Commission
as Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A (No. 001-27072)
filed on August 20, 2019). |
| |
|
|
| 10.28
|
|
October
9, 2018, Clinical Trial Agreement with Roswell Park Comprehensive Cancer Center (incorporated by reference to Exhibit 10.1 to the
Company’s Quarterly report on Form 10-Q (No. 000-27072) for the period ended September 30, 2018). |
| |
|
|
| 10.29 |
|
October
8, 2018, Restated First Amendment to Purchase and Sale Agreement (incorporated by reference to Exhibit 10.2 to the Company’s
Quarterly report on Form 10-Q (No. 000-27072) for the period ended September 30, 2018). |
| |
|
|
| 10.30
|
|
October
9, 2018, Restated Bill of Sale for the Restated First Amendment and Sale Agreement (incorporated by reference to Exhibit 10.3 to
the Company’s Quarterly report on Form 10-Q (No. 000-27072) for the period ended September 30, 2018). |
| 10.31 |
|
Form
of Agreement between the Company and the Warrant holders.- May 2, 2019 (incorporated by reference to Exhibit 10.1 to the Company’s
Current report on Form 8-K (No. 001-27072) filed May 2, 2019). |
| |
|
|
| 10.32 |
|
March
20, 2020 Amendment to 2017 Material Transfer and Research Agreement with Roswell Park Cancer Institute (incorporated by reference
to Exhibit 10.1 to the Company’s Current report on Form 8-K (No. 001-27072) filed March 26, 2020). |
| |
|
|
| 10.33 |
|
April
1, 2020 Material Transfer and Research Agreement with Shenzhen Smoore Technology Limited (incorporated by reference to Exhibit 10.1
to the Company’s Current report on Form 8-K (No. )001-27072) filed April 6, 2020). |
| |
|
|
| 10.34 |
|
April
21, 2020 Mutual Confidentiality Agreement with UMN Pharma Inc., National Institute of Infectious Diseases, and Shionogi & Co.,
Ltd (incorporated by reference to Exhibit 10.1 to the Company’s Current report on Form 8-K (No. 001-27072) filed April 27,
2020). |
| |
|
|
| 10.35 |
|
June
1, 2020, Material Transfer and Research Agreement with the University of Rochester. (Portions of this Agreement have been redacted
in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly report
on Form 10-Q (No. 000-27072) for the period ended June 30, 2020). |
| |
|
|
| 10.36 |
|
June
23, 2020, Specialized Services Agreement with Utah State University. (Portions of this Agreement have been redacted in compliance
with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly report on Form 10-Q
(No. 000-27072) for the period ended June 30, 2020). |
| |
|
|
| 10.37 |
|
July
1, 2020, Material Transfer and Research Agreement with the Japanese National Institute of Infectious Diseases and Shionogi &
Co., Ltd. (Portions of this Agreement have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference
to Exhibit 10.3 to the Company’s Quarterly report on Form 10-Q (No. 000-27072) for the period ended June 30, 2020). |
| |
|
|
| 10.38 |
|
July
6, 2020, Clinical Trial Agreement with Roswell Park Comprehensive Cancer Center. (Portions of this Agreement have been redacted in
compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly report
on Form 10-Q (No. 000-27072) for the period ended June 30, 2020). |
| |
|
|
| 10.39 |
|
August
6, 2020, Project Work Order with Amarex Clinical Research LLC. (Portions of this Agreement have been redacted in compliance with
Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly report on Form 10-Q (No.
000-27072) for the period ended June 30, 2020). |
| |
|
|
| 10.40 |
|
November
10, 2020 employment agreement with Thomas K. Equels. (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly
report on Form 10-Q (No. 000-27072) for the period ended September 30, 2020). |
| |
|
|
| 10.41 |
|
December
22, 2020 Master Service Agreement with Pharmaceutics International Inc. as a Fill & Finish provider for Ampligen (incorporated
by reference to Exhibit 10.75 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2020). |
| |
|
|
| 10.42 |
|
January
11, 2021 Sponsor Agreement with Centre for Human Drug Research. (Portions of this Agreement have been redacted in compliance with
Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.76 to the Company’s Annual report on Form 10-K (No.
001-27072) for the year ended December 31, 2020). |
| 10.43 |
|
November
29, 2020, Material Transfer and Research Agreement with Leyden Laboratories, B.V. (Portions of this Agreement have been redacted
in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.77 to the Company’s Annual report
on Form 10-K (No. 001-27072) for the year ended December 31, 2020). |
| |
|
|
| 10.44 |
|
December
30, 2020 Amendment to Project Work Order with Amarex Clinical Research LLC. (Portions of this Agreement have been redacted in compliance
with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.78 to the Company’s Annual report on Form 10-K
(No. 001-27072) for the year ended December 31, 2020). |
| |
|
|
| 10.45 |
|
December
23, 2020 Amendment to Master Service Agreement with Pharmaceutics International Inc. as a Fill & Finish provider for Ampligen
(incorporated by reference to Exhibit 10.79 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended
December 31, 2020). |
| |
|
|
| 10.46 |
|
March
24, 2021 employment agreement with Peter Rodino (incorporated by reference to Exhibit 10.80 to the Company’s Annual report
on Form 10-K (No. 001-27072) for the year ended December 31, 2020). |
| |
|
|
| 10.47 |
|
April
1, 2021 extension of April 1, 2020 Material Transfer and Research Agreement with Shenzhen Smoore Technology Limited. (incorporated
by reference to Exhibit 10.3 to the Company’s Quarterly report on Form 10-Q (No. 001-27072) for the period ended March 31,
2021). |
| |
|
|
| 10.48 |
|
Material
Transfer And Research Agreement with the University of Cagliari Dipartimento di Scienze della Vita e dell’Ambiente executed
on April 5, 2021 (Portions of this Agreement have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated
by reference to Exhibit 10.4 to the Company’s Quarterly report on Form 10-Q (No. 001-27072) for the period ended March 31,
2021). |
| |
|
|
| 10.49 |
|
Material
Transfer and Research agreement with Roswell Park Comprehensive Cancer Center executed on April 14, 2021 (Portions of this Agreement
have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.2 to the Company’s
Quarterly report on Form 10-Q (No. 001-27072) for the period ended March 31, 2021). |
| |
|
|
| 10.50 |
|
April 19, 2021 Purchase and Sale Agreement with Phoenix Equipment Corporation, Branford Auctions, LLC and Perry Videx LLC (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly report on Form 10-Q (No. 001-27072) for the period ended March 31, 2021). |
| |
|
|
| 10.51 |
|
May
12, 2021 Amendment to the Renewed Sales, Marketing, Distribution and Supply Agreement with GP Pharm. (Portions of this Agreement
have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.5 to the Company’s
Quarterly report on Form 10-Q (No. 001-27072) for the period ended March 31, 2021). |
| |
|
|
| 10.52 |
|
May
21, 2021 extension of April 1, 2020 Material Transfer and Research Agreement with Shenzhen Smoore Technology Limited (incorporated
by reference to Exhibit 10.2 to the Company’s Quarterly report on Form 10-Q (No. 001-27072) for the period ended June 30, 2021). |
| |
|
|
| 10.53 |
|
July
8, 2021 Reservation and Start-Up Agreement with hVIVO Services Limited (Portions of this Agreement have been redacted in compliance
with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q
(No. 000-27072) for the period ended June 30, 2021 filed August 16, 2021). |
| |
|
|
| 10.54 |
|
September
27, 2021 Clinical Trial Agreement with hVIVO Services Limited (Portions of this Agreement
have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference
to Exhibit 10.2 to the Company’s Quarterly report on Form 10-Q (No. 000-27072) for
the period ended September 30, 2021).
|
| |
|
|
| 10.55 |
|
March
1, 2022 Consulting Agreement with Foresite Advisors, LLC pursuant to which Robert Dickey IV will serve as the Company’s Chief
Financial Officer (Portions of this agreement have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated
by reference to Exhibit 10.78 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2021). |
| |
|
|
| 10.56 |
|
March
1, 2022 Amendment to Clinical Trial Agreement with hVIVO Services Ltd dated September 27, 2021. (incorporated by reference to Exhibit
10.80 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2021). |
| 10.57 |
|
March
3, 2022 Agreement of Sale and Purchase with Acellories, Inc for sale of 783 Jersey Avenue, New Brunswick, NJ building. (incorporated
by reference to Exhibit 10.81 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2021).
|
| |
|
|
| 10.58 |
|
March
8, 2022 Change order to Master Service Agreement with Pharmaceutics International Inc. as a Fill & Finish provider for Ampligen.
(incorporated by reference to Exhibit 10.82 to the Company’s Annual report on Form 10-K (No. 001-27072) for the year ended
December 31, 2021). |
| |
|
|
| 10.59 |
|
April
7, 2022 Project Work Order with Amarex Clinical Research LLC.to manage Phase 2 clinical trial in advanced pancreatic cancer patients
(Portions of this Agreement have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit
10.1 to the Company’s Current Report on Form 8-K (No. 001-27072) filed April 12, 2022). |
| |
|
|
| 10.60 |
|
June
13, 2022 Project Work Order with Amarex Clinical Research LLC. for a Randomized Double Blind, Placebo Controlled study to Evaluate
the Efficacy and Safety of Ampligen in Patients with Post Covid Conditions (Portions of this Agreement have been redacted in compliance
with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K
(No. 001-27072) filed June 17, 2022). |
| |
|
|
| 10.61 |
|
June
16, 2022 Lease agreement entered into with New Jersey Economic Development Authority for 5,210 square-foot R&D facility at the
New Jersey Bioscience Center (incorporated by reference 10.1 to the Company’s Current Report on Form 8-K (No.001-27072) filed
June 21, 2022). |
| |
|
|
| 10.62 |
|
June
27, 2022 First Amendment to Agreement of Sale and Purchase with Acellories, Inc. (incorporated by reference 10.86 to the Company’s
Quarterly report on Form 10-Q (No. 000-27072) for the period ended June 30, 2022 filed August 15, 2022). |
| |
|
|
| 10.63 |
|
August
2, 2022 Second Amendment to Agreement of Sale and Purchase with Acellories, Inc. (incorporated by reference 10.87 to the Company’s
Quarterly report on Form 10-Q (No. 000-27072) for the period ended June 30, 2022 filed August 15, 2022). |
| |
|
|
| 10.64 |
|
August
10, 2022 Termination agreement with Shenzhen Smoore Technology Limited (incorporated by reference 10.88 to the Company’s Quarterly
report on Form 10-Q (No. 000-27072) for the period ended June 30, 2022 filed August 15, 2022). |
| |
|
|
| 10.65 |
|
October
5, 2022 Lease extension for Riverton office (incorporated by reference 10.4 to the Company’s Quarterly report on Form 10-Q
(No. 001-27072) for the period ended September 30, 2022 filed November 14, 2022). |
| |
|
|
| 10.66 |
|
October
11, 2022 Material Transfer and Research Agreement with University of Pittsburgh (portions of this agreement have been redacted in
compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference 10.5 to the Company’s Quarterly report on Form 10-Q
(No. 001-27072) for the period ended September 30, 2022 filed November 14, 2022). |
| |
|
|
| 10.67 |
|
October
21, 2022 Material Transfer and Research Agreement with University of Pittsburgh (portions of this agreement have been redacted in
compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference 10.6 to the Company’s Quarterly report on Form 10-Q
(No. 001-27072) for the period ended September 30, 2022 filed November 14, 2022). |
| |
|
|
| 10.68 |
|
October
21, 2022 Fourth Amendment to Agreement of Sale and Purchase with Acellories, Inc)) (incorporated by reference 10.7 to the Company’s
Quarterly report on Form 10-Q (No. 001-27072) for the period ended September 30, 2022 filed November 14, 2022). |
| |
|
|
| 10.69 |
|
December
5, 2022 Master Service Agreement between Sterling Pharma Solutions Limited and AIM ImmunoTech Inc. (incorporated by reference to
Exhibit 10.93 to the Company’s annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2022). |
| |
|
|
| 10.70 |
|
January
13, 2023 Study Support Agreement with Erasmus University Medical Center Rotterdam (portions of this agreement have been redacted
in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.94 to the Company’s annual report
on Form 10-K (No.001-27072) for the year ended December 31, 2022). |
| |
|
|
| 10.71 |
|
January
13, 2023 Co-ordination Agreement with Erasmus University Medical Center Rotterdam and AstraZeneca BV (portions of this agreement
have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.95 to the Company’s
annual report on Form 10-K (No. 001-27072) for the year ended December 31, 2022). |
| |
|
|
| 10.72 |
|
March
1, 2023 Extension Agreement with Foresite Advisors LLC (incorporated by reference to Exhibit 10.96 to the Company’s annual
report on Form 10-K (No. 001-27072) for the year ended December 31, 2022). |
| |
|
|
| 10.73 |
|
April
4, 2023 Unrestricted Grant Agreement with Erasmus University Medical Center (incorporated by reference to Exhibit 10.1 to the Company’s
Current Report on Form 8-K (No. 001-27072) filed April 7, 2023). |
| |
|
|
| 10.74 |
|
April
5, 2023 Independent Contractor Service Agreement with Casper H.J van Eijck (incorporated by reference to Exhibit 10.2 to the Company’s
Current Report on Form 8-K (No. 001-27072) filed April 7, 2023). |
| 10.75 |
|
April
19, 2023 Equity Distribution Agreement with Maxim Group, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current
Report on Form 8-K (No. 001-27072) filed April 19, 2023). |
| |
|
|
| 10.76 |
|
Material
Transfer and Research Agreement, dated as of May 22, 2023, with Japanese National Institute of Infectious Disease (portions of this
agreement have been redacted in compliance with Regulation S-K Item 601(b)(10)) (incorporated by reference to Exhibit 10.1 to the
Company’s Current Report on Form 8-K (No. 001-27072) filed May 30, 2023). |
| |
|
|
| 10.77 |
|
September
20, 2023 Amended and Restated Material Transfer and Research Agreement with Roswell Park Cancer Institute Corporation d/b/a Roswell
Park Comprehensive Cancer Center (incorporated by reference to Exhibit 10.1 to the Company’s Current Report of Form 8-K (No.
001-27072) filed September 29, 2023). |
| |
|
|
| 10.78 |
|
February
16, 2024 Note Purchase Agreement with Streeterville Capital LLC (incorporated by reference to Exhibit 10.1 to the Company’s
Current Report on Form 8-K (No. 001-27072) filed February 20, 2024). |
| |
|
|
| 10.79 |
|
February
16, 2024 Promissory Note with Streeterville Capital LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current
Report on Form 8-K (No. 001-27072) filed February 20, 2024). |
| |
|
|
| 10.80 |
|
March
28, 2024 Atlas Equity Purchase Agreement (incorporated by reference to Exhibit 10.104 to
the Company’s annual report on Form 10-K (No. 001-27072) for the year ended December
31, 2023). |
| |
|
|
| 10.81 |
|
March
28, 2024 Atlas Registration Rights Agreement (incorporated by reference to Exhibit 10.104
to the Company’s annual report on Form 10-K (No. 001-27072) for the year ended December
31, 2023). |
| |
|
|
| 10.82 |
|
October
4, 2023 Lease extension for Riverton office (incorporated by reference to Exhibit 10.106
to the Company’s Registration Statement on Form S-1 (No.333-278839) filed April 19,
2024).
|
| |
|
|
| 10.83 |
|
March
15, 2024 Addendum 1 to Lease for Ocala office (incorporated by reference to Exhibit 10.107 to the Company’s Registration Statement
on Form S-1 (No.333-278839) filed April 19, 2024). |
| |
|
|
| 10.84 |
|
Form
of Securities Purchase Agreement, dated as of May 31, 2024, by and among the Company and the investor thereto (incorporated by reference
to exhibit 10.1 to the Company’s Current report on Form 8-K (No. 001-27072) filed June 3, 2024). |
| |
|
|
| 10.85 |
|
August
12, 2024 Amendment to Employment Agreement for Thomas K Equels (incorporated by reference
to exhibit 10.4 to the Company’s Quarterly report on form 10-Q (No. 001-27072) for
period ended June 30, 2024).
|
| |
|
|
| 10.86 |
|
August
12, 2024 Amendment to Employment Agreement for Peter W Rodino III (incorporated by reference to exhibit 10.5 to the Company’s
Quarterly report on form 10-Q (No. 001-27072) for period ended June 30, 2024). |
| |
|
|
| 10.87 |
|
September
11, 2024 Amendment to Employment Agreement for Thomas K Equels (incorporated by reference to exhibit 10.1 to the Company’s
Current report on Form 8-K (No. 001-27072) filed September 12, 2024). |
| |
|
|
| 10.88 |
|
September
11, 2024 Amendment to Employment Agreement for Peter W. Rodino III (incorporated by reference
to exhibit 10.2 to the Company’s Current report on Form 8-K (No. 001-27072) filed September
12, 2024).
|
| |
|
|
| 10.89 |
|
September
30, 2024 Securities Purchase Agreement (incorporated by reference to exhibit 10.1 to the
Company’s Current Report on Form 8-K (No. 001-27072) filed October 1, 2024).
|
| |
|
|
| 10.90 |
|
September
30, 2024 Placement Agency Agreement with Maxim Group LLC (incorporated by reference to exhibit
1.1 to the Company’s Current Report on Form 8-K (No. 001-27072) filed October 1, 2024).
|
| |
|
|
| 10.91 |
|
October
1, 2024 Class C Common Stock Purchase Warrant with Armistice Capital Master Fund Ltd (incorporated
by reference to exhibit 4.1 to the Company’s Current Report on Form 8-K (No. 001-27072)
filed October 1, 2024).
|
| |
|
|
| 10.92 |
|
October
1, 2024 Class D Common Stock Purchase Warrant with Armistice Capital Master Fund Ltd (incorporated by reference to exhibit 4.2 to
the Company’s Current Report on Form 8-K (No. 001-27072) filed October 1, 2024). |
| |
|
|
| 10.93 |
|
September 19, 2024 Lease extension for Riverton office (incorporated by reference 10.15 to the Company’s Quarterly report on Form 10-Q (No. 000-27072) for the period ended September 30, 2024 filed November 14, 2024). |
| |
|
|
| 21.1 |
|
List
of Subsidiaries (incorporated by reference to Exhibit 10.104 to the Company’s annual report on Form 10-K (No. 001-27072) for
the year ended December 31, 2023). |
| |
|
|
| 23.1 |
|
Consent of BDO USA, P.C.* |
| |
|
|
| 24 |
|
Power
of Attorney (contained in the signature page of this registration statement) |
| |
|
|
| 107 |
|
Calculation of Filing Fee Table* |
*
Filed herewith.
**
Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because
the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement on Form S-1 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Ocala, State of Florida, on November 15, 2024.
| AIM IMMUNOTECH INC. |
|
| |
|
|
| By:
|
/s/
Thomas K Equels |
|
| |
Thomas
K. Equels, |
|
| |
Chief
Executive Officer |
|
POWER
OF ATTORNEY
KNOW
ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas K. Equals and Peter W. Rodino III,
and each of them, as his or her true and lawful attorney-in-fact and agent, each with the full power of substitution, for him or her
and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including
post-effective amendments), and to sign any registration statement for the same offering covered by this registration statement that
is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto,
and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated:
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Thomas K. Equels |
|
|
|
|
| Thomas
K, Equels |
|
Chief
Executive Officer and Director (Principal Executive Officer) |
|
November
15, 2024 |
| |
|
|
|
|
| /s/
Robert Dickey IV |
|
|
|
|
| Robert
Dickey IV |
|
Chief
Financial Officer (Principal Financial Officer) |
|
November
15, 2024 |
| |
|
|
|
|
| /s/
Nancy K. Bryan |
|
|
|
|
| Nancy
K. Bryan |
|
Director |
|
November
15, 2024 |
| |
|
|
|
|
| /s/
Stewart L. Appelrouth |
|
|
|
|
| Stewart
L. Appelrouth |
|
Director
|
|
November
15, 2024 |
| |
|
|
|
|
| /s/
William M. Mitchell, M.D., Ph.D. |
|
Director
(Chairman) |
|
|
| William
M. Mitchell, M.D. Ph.D. |
|
|
|
November
15, 2024 |
Exhibit
5.1
SILVERMAN
SHIN & SCHNEIDER PLLC
Wall
Street Plaza
88
Pine Street – 22nd Floor
New
York, New York 10005
(212)
779-8600
Fax
(917) 720-0863
November
15, 2024
Board
of Directors
AIM
ImmunoTech Inc.
2117
SW Highway 484
Ocala
FL 34473
| Re: |
Registration
Statement on Form S-1. |
Ladies
and Gentlemen:
We
have acted as special counsel to AIM ImmunoTech Inc., a Delaware corporation (the “Company”), in connection with the filing
by the Company of a Registration Statement on Form S-1 (the “Registration Statement”) with the Securities and Exchange Commission
(the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”). The Registration
Statement relates to the registration of 9,306,072 shares of the Company’s common stock, par value $0.001 per share (the “Shares”),
being offered by the selling security holder, together with the associated preferred stock purchase rights for Series A Junior Participating
Preferred Stock, par value $0.01 per share, of the Company (the “Rights”), issuable pursuant to the Third Amended and Restated
Rights Agreement, dated as of May 12, 2023 (the “Rights Agreement”) between the Company and American Stock Transfer &Trust
Company, LLC (now know as Equiniti Trust Company) as rights agent (the “Rights Agent”). This opinion letter is being furnished
at your request in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed
herein as to any matter pertaining to the contents of the Registration Statement other than as expressly stated herein with respect to
the issuance of the Shares.
For
purposes of rendering this opinion letter, we have made such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction as being true copies of (i) the Registration Statement; (ii)
the certificate of incorporation and bylaws of the Company and the Certificate of Amendment to the Amended and Restated Certificate of
Designations, Preferences and Rights of Series A Junior Participating Preferred Stock, all as amended through the date hereof (collectively,
the “Governing Documents”); (iii) the Securities Purchase Agreement between the Company and the selling security holder (the
“Securities Purchase Agreement”); (iv) the Rights Agreement and (v) such other agreements, instruments, corporate records
and other documents as we have deemed necessary or appropriate for the purpose of issuing this opinion letter, and we have obtained from
officers and other representatives and agents of the Company and from public officials, and have relied upon, such certificates, representations
and assurances as we have deemed necessary or appropriate.
Without
limiting the generality of the foregoing, in our examination and in rendering this opinion letter, we have, with your permission, assumed
without independent verification, that (i) the Registration Statement to be filed by the Company with the Commission is identical to
the form of the document that we have reviewed; (ii) all statements as to factual matters that are contained in the Registration Statement
(including the exhibits to the Registration Statement) are accurate and complete; (iii) each document we have reviewed or which is referenced
herein has been duly executed and delivered by the parties thereto to the extent due execution and delivery are prerequisites to the
effectiveness thereof; (iv) after any issuance of Shares, the total number of issued and outstanding shares of Common Stock, together
with the total number of shares of Common Stock then reserved for issuance or obligated to be issued by the Company pursuant to any agreement
or arrangement or otherwise, will not exceed the total number of shares of Common Stock then authorized under the Company’s certificate
of incorporation; (v) the statements of fact and representations and warranties set forth in the documents we have reviewed are, or at
all relevant times will be, true and correct as to factual matters; (vi) all documents submitted to us as originals are authentic, the
signatures on all documents that we have examined are genuine, and all documents submitted to us as certified, conformed, photostatic,
electronic or facsimile copies conform to the original documents; and (vii) all corporate records made available to us by the Company,
and all public records we have reviewed, are accurate and complete.
We
have further assumed for purposes of this opinion that (i) the Rights Agent is duly qualified to engage in the activities contemplated
by the Rights Agreement; (ii) the Rights Agent has the requisite organizational and legal power and authority to perform its obligations
under the Rights Agreement; (iii) the terms of the Rights will have been established so as not to violate, conflict with or constitute
a default under (a) any agreement or instrument to which the Company or its properties are subject, (b) any law, rule or regulation to
which the Company is subject, (c) any judicial or regulatory order or decree of any governmental authority or (d) any consent, approval,
license, authorization or validation of, or filing, recording or registration with any governmental authority.
We
have also assumed that (i) at the time of issuance and delivery of the Rights, the Rights Agreement will be the valid and legally binding
obligation of the Rights Agent, (ii) the Rights Agent is validly existing under the law of the jurisdiction in which it is organized
and (iii) at the time of issuance and delivery of the Rights, there are a sufficient number of Rights and shares of Series A Junior Preferred
Stock authorized under the Rights Agreement and the Governing Documents, as the case may be, and are not otherwise reserved for issuance.
We
are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction, including, without limitation, any
federal securities laws, rules or regulations, or any state securities or “blue sky” laws, rules or regulations or, in the
case of Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state. We are not
admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made
such inquiries as we consider necessary to render the opinions above. We have relied exclusively on the latest standard compilations
of such statutes and laws as reproduced in commonly accepted unofficial publications available to us. This opinion is limited to the
effect of the current state of the DGCL and the facts as they currently exist.
Our
opinions expressed below are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or
effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law
affecting the enforcement of creditors’ rights generally, (ii) general principals of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (iii) public policy considerations that may limit the rights of parties to obtain
certain remedies.
Based
upon the foregoing and in reliance thereon, and having regard to legal considerations and other information that we deem relevant, we
are of the opinion that:
1.
The Shares have been duly authorized by the Company and, upon issuance and payment therefor in accordance with the terms of the Securities
Purchase Agreement (and the agreements or certificates issued thereunder) will be validly issued, fully paid and non-assessable.
2.
With respect to the Rights, when (A) all actions and conditions with respect to the Shares referred to in opinion paragraph number 1
above have been taken or satisfied; and (B) if and when separated from the Shares, the Rights have been duly executed, countersigned
or authenticated by the Rights Agent, registered and delivered, the Rights attached to the Shares in accordance with the Rights Agreement
will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating creditors’ rights generally, (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity), (c) an implied covenant of good faith and fair dealing,
and (d) public policy considerations which may limit the rights of parties to obtain remedies. In addition, in our opinion with respect
to the Rights and the Rights Agreement, (i) we express no opinion as to any determination a court of competent jurisdiction may make
regarding whether the Board of Directors would be required to redeem or terminate, or take other action with respect to, the Rights at
some future time based on the facts and circumstances existing at that time, (ii) we have assumed that the members of the Board of Directors
acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights Agreement, and (iii)
we address the Rights and the Rights Agreement in their entirety, and it is not settled whether the invalidity of any particular provision
of the Rights Agreement or of the Rights issued thereunder would result in invalidating such Rights Agreement or Rights in their entirety.
This
opinion assumes the members of the Board of Directors have acted in a manner consistent with their fiduciary duties as required under
applicable law in adopting the Rights Agreement. This opinion addresses the Rights and the Rights Agreement in their entirety, and it
is not settled whether the invalidity of any particular provision of the Rights Agreement or of the Rights issued thereunder would result
in invalidating such Rights in their entirety.
The
opinions expressed herein are based upon the DGCL and the facts in existence on the date hereof. In delivering this opinion letter to
you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you of any changes in such laws or
facts after such time as the Registration Statement is declared effective. no opinion is offered or implied as to any matter, and no
inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinions set forth herein.
We
consent to the filing of this opinion as an exhibit to the Registration Statement. In giving these consents, we do not thereby admit
that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations
of the Commission.
| |
|
Very
truly yours, |
| |
|
|
| |
|
/s/
Silverman Shin & Schneider PLLC |
| |
|
|
| |
By: |
/s/
Richard Feiner |
| |
|
Richard
Feiner, Esq. |
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
hereby consent to the incorporation by reference in this Registration Statement on Form S-1 of our report dated March 29, 2024, relating
to the consolidated financial statements of AIM ImmunoTech Inc. (the Company), which is appearing in the Company’s Annual Report
on Form 10-K for the year ended December 31, 2023.
We
also consent to the reference to us under the caption “Experts” in such Registration Statement.
| /s/ BDO USA, P.C. |
|
| |
|
| Miami, FL |
|
| November 15, 2024 |
|
Exhibit
107
Calculation
of Filing Fee Tables
Registration
Statement on Form S-1
(Form
Type)
AIM
ImmunoTech Inc.
(Exact
Name of Registrant
as
Specified in its Charter)
Table
1: Newly Registered Securities
| Security
Type |
|
Security
Class Title |
|
Fee
Calculation
Rule |
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price Per
Unit |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee
Rate |
|
Amount
of
Registration
Fee |
|
| Equity |
|
Common
Stock, par value $0.001 per share to be issued pursuant to the Plans |
|
Rule
457(c) and (h) |
|
|
9,306,072 |
|
|
$ |
0.27 |
|
|
$ |
2,512,639 |
|
|
$153.10
per
$1,000,000 |
|
$ |
384.69 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total
Offering Amounts |
|
|
|
|
|
$ |
|
|
|
|
|
$ |
384.69 |
|
| Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
- |
|
| Net
Fee Due |
|
|
|
|
|
|
|
|
|
|
|
$ |
384.69 |
|
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