The Delaware Supreme Court's acceptance of the interlocutory appeal keeps the proxy contest outcome binary and unresolved. Watch for the Supreme Court's decision before the October 14 annual meeting — if it affirms the Chancery ruling, ATG's full slate will appear on the ballot, creating a contested election. If it reverses, the board's rejection stands and ATG's nominees are excluded. ATG's continued share accumulation at ~$3.59 suggests confidence in its legal position.
Price Chart
Executive Summary
Empery Digital filed definitive additional proxy soliciting materials disseminating the Delaware Supreme Court's acceptance of an interlocutory appeal in the ongoing proxy contest with activist ATG Capital. The Supreme Court granted expedited review of the Court of Chancery's ruling that ATG's nomination notice was valid and that the board improperly rejected it, with briefing due by October 2 ahead of the October 14 annual meeting. This filing keeps the binary outcome of whether ATG's full slate of nine nominees will appear on the ballot unresolved until the Supreme Court rules, maintaining uncertainty and event risk.
Key Financial Metrics
Key Facts
- Delaware Supreme Court accepted interlocutory appeal on September 18, 2026, in ATG Capital Opportunities Fund LP v. Ryan Lane, et al.
- Court of Chancery held on August 28, 2026 that ATG's nomination notice was valid and the board's rejection was both contractually improper and a breach of fiduciary duties.
- ATG's nine nominees may stand for election at the annual meeting currently scheduled for October 14, 2026, pending the Supreme Court appeal.
- Supreme Court briefing schedule: reply brief due no later than October 2, 2026.
- ATG Capital owns approximately 10.4% of Empery and has been accumulating shares, including purchasing 500,000 shares at $3.5862 on September 1, 2026.
- The board rejected ATG's nomination notice citing failure to disclose Tice Brown as a participant and failure to disclose a Bitcoin ETF short position, but the court found neither deficiency valid under the bylaws.
- ATG's principal Gabriel Gliksberg was found to have spoliated evidence by using auto-delete messaging, resulting in monetary sanctions for attorneys' fees.
- Empery pivoted from a Bitcoin DAT strategy to AI data-center investments, announcing $65M and $20M investments, and sold approximately half its Bitcoin.
Financial Impact
The proxy contest outcome determines control of a company that held ~$500M in Bitcoin post-PIPE and has pivoted to AI data-center investments. ATG's stated strategy includes evaluating strategic alternatives including potential liquidation of Bitcoin assets to capture the NAV discount.
Risk Factors
- Supreme Court could reverse the Chancery ruling, removing ATG's slate from the ballot and entrenching the incumbent board.
- Even if ATG's slate appears on the ballot, the board's pivot to AI data-center investments may complicate ATG's liquidation thesis and reduce shareholder support.
- Spoliation sanctions and evidence of coordination between ATG and Tice Brown could undermine ATG's credibility with shareholders.
- The company's strategic pivot from Bitcoin DAT to AI data centers may reduce the NAV discount arbitrage opportunity that initially attracted activists.
Investment Themes
Documents Analyzed
This report is based on 4 SEC documents filed with EDGAR.
| Document | Accession Number |
|---|---|
| DEFA14A Filing (Primary) | 0001683168-26-007278 |
| Document: 0001683168-26-007278-index-headers.html | 0001683168-26-007278 |
| Document: 0001683168-26-007278-index.html | 0001683168-26-007278 |
| Document: 0001683168-26-007278.txt | 0001683168-26-007278 |
Filters
| Type | Now | ||||
|---|---|---|---|---|---|
Oct 26, 2026 1d ago | 3 | $2.73 $2.86 | ▲ +4.76% | ▲ +4.20% | $2.86 (+4.76%) |
Oct 26, 2026 1d ago | 8-K | $2.73 $2.86 | ▲ +4.76% | ▲ +4.20% | $2.86 (+4.76%) |
Oct 15, 2026 12d ago | 8-K | $3.03 $2.92 | ▼ −3.63% | ▼ −2.52% | $2.86 (−5.61%) |
Oct 13, 2026 14d ago | DFAN14A | $2.97 $3.03 | ▲ +2.02% | ▲ +1.74% | $2.86 (−3.70%) |
Oct 9, 2026 18d ago | DEFA14A | $3.27 $3.29 | ▲ +0.61% | ▲ +0.62% | $2.86 (−12.54%) |
Oct 8, 2026 19d ago | DFAN14A | $3.05 $3.27 | ▲ +7.21% | ▲ +7.27% | $2.86 (−6.23%) |
Oct 8, 2026 19d ago | DEFA14A | $3.05 $3.27 | ▲ +7.21% | ▲ +7.27% | $2.86 (−6.23%) |
Oct 7, 2026 20d ago | DEFA14A | $3.15 $3.05 | ▲ +3.17% | ▲ +3.77% | $2.86 (+9.21%) |
Oct 6, 2026 21d ago | DEFA14A | $3.16 $3.15 | ▼ −0.32% | ▲ +0.11% | $2.86 (−9.49%) |
Oct 5, 2026 22d ago | DEFA14A | $3.18 $3.16 | ▼ −0.63% | ▼ −0.39% | $2.86 (−10.06%) |
US Market Status
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