CORRESP 1 filename1.htm

Shaun J. Mathew, P.C.

To Call Writer Directly:

+1 212 909 3035

shaun.mathew@kirkland.com

601 Lexington Avenue

New York, NY 10022

United States

+1 212 446 4800

www.kirkland.com

Facsimile:

+1 212 446 4900

VIA EDGAR AND EMAIL

October 24, 2023

Division of Corporation Finance

Office of Mergers & Acquisitions

United States Securities and Exchange Commission

100 F. Street, N.E.

Washington, DC 20549

Attention: David Plattner

Re:	AIM ImmunoTech Inc.
	Preliminary Proxy Statement filed on Schedule 14A (PREC14A)
	Filed October 10, 2023 by AIM ImmunoTech Inc.
	File No. 001-27072

Dear Mr. Plattner:

On October 10, 2023, AIM ImmunoTech Inc. (the “Company”) filed its Preliminary Proxy Statement (the “Preliminary Proxy Statement”) in respect of the Company’s 2023 Annual Meeting of Stockholders (the “Annual Meeting”) with the United States Securities and Exchange Commission (the “Commission”). Today, the Company filed with the Commission an Amendment No. 1 to the Preliminary Proxy Statement (“Amendment No. 1”).

On behalf of the Company, we are writing to respond to the comments raised in the letter to the Company dated October 19, 2023, from the staff (the “Staff”) of the Commission concerning the Preliminary Proxy Statement. For ease of reference, we have reproduced the text of the Staff’s comments in bold-face type below, followed by the Company’s response. In addition, a copy of Amendment No. 1 is enclosed and has been marked to show changes from the Preliminary Proxy Statement.

Annual Meeting and Voting, beginning on Page 3

1.	References to “against” votes with respect to Proposal 1 appear to be incorrect. Please remove such references, or advise.

Response: In response to the Staff’s comment, the disclosure has been revised to remove references to “against” votes with respect to Proposal 1.

United States Securities and Exchange Commission

October 24, 2023

Page 2

We note that the disclosure on page 9 indicates that “[a]bstentions” will have no effect on the outcome of Proposal 1. We also note that the proxy card includes disclosure indicating that “IF NO CONTRARY INSTRUCTION IS GIVEN…,” then the shares will be voted for all of the nominees listed in Proposal 1. Please disclose clearly how the proxy holders will treat a proxy card that includes a vote or votes on Proposals 2 through 4, but makes no mark with respect to Proposal 1. The absence of a mark in such circumstances would appear to represent an abstention and should therefore not be treated as a vote “FOR ALL.” Please confirm, or advise.

Response: In response to the Staff’s comment, the Company notes that there is no “abstain” option on its proxy because a plurality voting standard applies to the election of directors at the Annual Meeting.

The Company has provided revised disclosure in Amendment No. 1, including on the form of proxy included therein, to clarify the treatment of any validly executed white proxy cards submitted that do not specify voting instructions with respect to a proposal.

We note the following disclosure on page 9: “If you sign and return a WHITE proxy card or otherwise vote as directed herein, but do not mark how your shares are to be voted, the individuals named as proxies therein will vote your shares in accordance with the recommendation of the Board on the four proposals…” (emphasis added). We do not understand the meaning of the highlighted phrase. Please revise, or advise.

Response: In response to the Staff’s comment, the Company has revised the highlighted phrase in Amendment No. 1 to replace the highlighted phrase with a reference to a voting instruction form.

4.	Please correct the reference to “November 31, 2023” on page 6 and the reference to “Rule 14a-4I” on page 9.

Response: In response to the Staff’s comment, in Amendment No. 1, the Company revised the reference to “November 31, 2023” to say “November 30, 2023” and the reference to “Rule 14a-4I” to say “Rule 14a-4(c)”.

Background of the Solicitation, beginning on Page 14

5.	We note the following statement on page 14: “His behavior following his termination was said to be highly inappropriate and unbecoming of a fiduciary of a public company, including issuing an unauthorized filing on behalf of the Company.” Please clarify by disclosing who said this.

Response: In response to the Staff’s comment, the Company has revised its statement in Amendment No. 1 to clarify that the statement was made by Rockwell Medical. For the Staff’s reference, a copy of the May 22, 2018 press release issued by Rockwell Medical, Inc. is attached as Exhibit A hereto, a copy of the Form 8-K reportedly issued by Robert Chioini without authorization on May 23, 2018 is attached as Exhibit B hereto, and a copy of the May 24, 2018 press release issued by Rockwell Medical, Inc. relating to, among other things, Mr. Chioini’s post-termination behavior, is attached as Exhibit C hereto.

United States Securities and Exchange Commission

October 24, 2023

Page 3

6.	Please provide brief disclosure regarding the Company’s November 9, 2022 press release.

Response: In response to the Staff’s comment, the Company has added disclosure in Amendment No. 1 regarding the Company’s November 9, 2022 press release.

7.	We note the statement at the bottom of page 18 that “[t]he motion remains pending.” We understand that such motion was denied on September 27, 2023. Please revise, or advise.

Response: In response to the Staff’s comment, the Company has revised the disclosure to reflect subsequent developments relating to the motion (and litigation) in question.

General

We refer to paragraph (a) under the section of the Rejection Letter titled, “Failure to Disclose Information Required by the Proxy Rules,” and note the following statement: “This defect is especially consequential not only because it fails to satisfy the clear requirement of the Advance Notice Bylaw, but also because, if the Company were to determine it is required to use a universal proxy card for the 2023 Annual Meeting, the Company does not have the consent of Messrs. Chioini, Deutsch and Kellner to name them on its universal proxy card because of the deficient nominee consents included in the Notice do not give the Company consent to name them in the Company’s proxy statement.” We do not understand how the Company reached this conclusion, which is inconsistent with the manner in which Rule 14a-4(d)(1)(i) operates following its recent revision. Please advise. Please also confirm, if true, that the Company will not, on the basis of such interpretation and in the event that the Delaware litigation results in a finding that the Purported Nomination Notice is valid, seek to avoid placing the Dissident’s Group’s nominees on the Company’s universal proxy card.

Response: In response to the Staff’s comment, the Company hereby confirms to the Staff that while the consent language used in the nominee consents given by the dissident nominees did not comply with the requirements of the Company’s bylaws, the Company will not rely upon the statement in the Rejection Letter regarding the operation of Rule 14a-4(d)(1)(i). The Company also confirms that it will not, on the basis of the aforementioned statement in the Rejection Letter, seek to avoid placing the Dissident Group’s nominees on the Company’s universal proxy card if the Delaware litigation results in a finding that the Purported Nomination Notice is valid. Consistent with this position, the Company also respectfully refers the Staff to the disclosure in the Preliminary Proxy Statement and in Amendment No. 1 that “if the [Delaware] litigation results in a finding that the Purported Nomination Notice is valid, then the Company will amend the Proxy Statement and the accompanying WHITE proxy card to reflect those developments and to include the names of Mr. Kellner’s nominees on a WHITE universal proxy card, and the Company will mail the revised proxy statement and a WHITE universal proxy card to stockholders.”

United States Securities and Exchange Commission

October 24, 2023

Page 4

Please ensure that, pursuant to Item 7(b) of Schedule 14A, the filing includes disclosure fully responsive to Item 407 of Regulation S-K. For example, please disclose who recommended Ms. Bryan to the Board (see Item 407(c)(2)(vii) of Regulation S-K and Question 133.03 under the staff’s Regulation S-K Compliance and Disclosure Interpretations), and please disclose any information regarding the engagement of compensation consultants (see Item 407(e)(3) of Regulation S-K).

Response: In response to the Staff’s comment, the Company has included in Amendment No. 1 the information required by Item 407(c)(2)(vii) of Regulation S-K regarding Ms. Bryan’s recommendation to the Board.

In addition, in response to comment 6 above, the Company has also provided disclosure in Amendment No. 1 regarding the Company’s November 9, 2022 press release and the fact that the Compensation Committee ultimately did not engage a second compensation consultant. The Company has provided disclosure in Amendment No. 1 relating to the compensation consultant that is engaged by the Compensation Committee.

* * *

If any supplemental information is required by the Staff or if you have any questions regarding the foregoing, please direct any such requests or questions to me at (212) 909-3035 or shaun.mathew@kirkland.com.

	Sincerely,

	/s/ Shaun J. Mathew
	Shaun J. Mathew, P.C.

cc:	Peter W. Rodino III
	AIM ImmunoTech Inc.
	Richard Feiner, Esq.
	Silverman Shin & Byrne PLLC
	Evan Johnson
	Kirkland & Ellis LLP

United States Securities and Exchange Commission

October 24, 2023

Exhibit A

Rockwell Medical, Inc. – May 22, 2018 Press Release

United States Securities and Exchange Commission

October 24, 2023

Exhibit B

Rockwell Medical, Inc. – May 23, 2018 Form 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 23, 2018

ROCKWELL MEDICAL, INC.

(Exact name of registrant as specified in its charter)

Michigan	000-23661	38-3317208
(State or other jurisdiction	(Commission	(IRS Employer
of incorporation)	File Number)	Identification No.)

30142 Wixom Road, Wixom, Michigan		48393
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code (248) 960-9009

Not applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). 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 pursuant to Section 13(a) of the Exchange Act. ☐

Item 8.01 Other Events

A board meeting called for the purpose of discussing a shareholder demand letter and informing the board that the independent non-conflicted directors had hired independent counsel to conduct an internal investigation in response to the demand letter requiring immediate initiation of an investigation of alleged breach of fiduciary duties by various directors and other possible violations of federal securities laws. The directors who are the subjects of the allegations of breaches of fiduciary duty asserted the position that they voted to fire the CEO. As that action was not the purpose of the special meeting, the determination of the non-conflicted independent directors was that the termination was not effective, and based on that and in accordance with the CEO’s employment contract the CEO remains. The CEO through counsel has notified the SEC of the action taken by the directors whose conduct is discussed in the demand letter that gives rise to the investigation, and the CEO continues to serve as the CEO consistent with the terms of his employment agreement. The internal investigation is proceeding under the two non-conflicted independent directors Patrick Bagley and Ronald Boyd.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	ROCKWELL MEDICAL, INC.

May 23, 2018	By:	/s/ Robert L. Chioini
		Robert L. Chioini
	Its:	Chief Executive Officer

United States Securities and Exchange Commission

October 24, 2023

Exhibit C

Rockwell Medical, Inc. – May 24, 2018 Press Release