Delaware Supreme Court Affirms ATG Capital's Proxy Victory; All Three Proxy Advisors Back Activist Slate
EMPD sits 30% above its 52-week low of $2.484.
Summary
The Delaware Supreme Court affirmed the Chancery Court ruling allowing ATG Capital's nominees to stand for election, and all three proxy advisory firms now recommend voting for the activist slate. ATG's open letter adds new allegations about the data center transaction and undisclosed conflicts of interest.
Key Events · Corporate Governance and Compliance · EMPD
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Delaware Supreme Court Affirms Proxy Ruling
On October 8, 2026, the Delaware Supreme Court affirmed the Chancery Court's ruling that ATG Capital's nine board nominees must be allowed to stand for election, rejecting Empery Digital's appeal less than a week before the October 14 annual meeting.
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All Three Proxy Advisors Back Activist Slate
ISS, Glass Lewis, and Egan-Jones have each recommended stockholders vote FOR ATG Capital's four nominees on the GOLD proxy card, with Egan-Jones stating 'shareholders have little reason to give this Board an unchanged mandate.'
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Data Center Transaction Misses Stated Timeline
ATG Capital alleges the $65 million Midwest data center investment, which the Board said would close in Q3 2026 and reaffirmed as 'on track for execution in September 2026,' has not closed, with the lease still 'currently under LOI' as of October 8, 2026.
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Undisclosed Lake Street Conflict Alleged
ATG Capital alleges the Board's proxy mailers cite a $6 price target from Lake Street Capital Markets without disclosing that Lake Street was an investment banking client of Empery Digital within the past twelve months and acted as financial advisor to the acquiring entity in the data center transaction.
Analysis · EMPD · Crypto Assets
The Delaware Supreme Court's October 8 affirmance removes the last legal obstacle to ATG Capital's four nominees standing for election at the October 14 annual meeting. With ISS, Glass Lewis, and Egan-Jones all recommending stockholders vote the GOLD proxy card, the incumbent board faces a high probability of losing four of nine seats. ATG's open letter escalates the fight with new allegations: the $65 million Midwest data center transaction missed its stated Q3 closing timeline with no explanation, and the Board's proxy mailers cite a $6 price target from Lake Street Capital Markets without disclosing that Lake Street was an investment banking client of Empery Digital and financial advisor to the acquiring entity. The letter also alleges the chair of the nominating and governance committee testified under oath he was unaware he held that role, and that the co-CEO engaged in undisclosed related-party transactions. This is a governance crisis unfolding in real time, with the vote two days away.
How filings like this one have moved
In the 30 days to Oct 13, 2026, 44.1% of the 299 measured filings Wiseek scored 9 moved their stock by 5% or more by the next session's close. The median move was -0.62%. These are measured outcomes after filings of this importance, not a forecast for this one.
Measured one observation per ticker per day, after exclusions. Current figures: Filing Impact Tracker · open dataset
At the time of this filing, EMPD was trading at $3.24 on NASDAQ in the Crypto Assets sector, with a market capitalization of approximately $92.6M. The 52-week trading range was $2.48 to $7.85. This filing was assessed with negative market sentiment and an importance score of 9 out of 10.