As filed with the Securities and Exchange Commission on November 5, 1996
Registration No. ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENZO BIOCHEM, INC.
(Exact name of Registrant as specified in its charter)
New York
(State or Other Jurisdiction of Incorporation or Organization)
13-2866202
(I.R.S. Employer Identification No.)
60 Executive Boulevard, Farmingdale, New York 11735 (516) 755-5500
(Address, including zip code, and telephone number, including area code, of
registrants's principal executive offices)
ELAZAR RABBANI, Ph.D., Chairman & CEO
Enzo Biochem, Inc.
60 Executive Boulevard
Farmingdale, New York 11735
(516) 755-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------------
Copy to:
ROBERT H. COHEN, ESQ.
Bryan Cave LLP
245 Park Avenue
New York, New York 10167-0034
(212) 692-1800
------------------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If any of the securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
================================================================================
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed Amount
Amount Maximum Maximum of
to be Offering Price Aggregate Registration
Title of Shares to be Registered Registered Per Share (1) Offering Price Fee
- ---------------------------------------------------------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, par value $ .01 .................................. 347,468 $17.75 $6,167,557.00 $1,868.95
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(g), based on the average
of the high and low prices of the Registrant's Common Stock on November 4, 1996, as reported by the American Stock Exchange.
</TABLE>
-------------------------------------
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 Commission, acting pursuant to said Section 8(a),
may determine.
-------------------------------------
<PAGE>
PROSPECTUS
347,468 Shares
ENZO BIOCHEM, INC.
Common Stock
This Prospectus relates to the offering by certain creditors (the "Creditors")
of Enzo Biochem, Inc., a New York corporation ("Enzo" or the "Company"), of up
to an aggregate of 347,468 shares (giving effect to the Company's 5% stock
dividend payable on October 29, 1996 to holders of record on October 8, 1996) of
Common Stock, par value $.01 per share ("Common Stock"), of Enzo, which shares
were issued to the Creditors in August 1996 and October 1996 in private
transactions pursuant to Section 4(2) of the Securities Act of 1933, as amended
(the "Act"), primarily in consideration of an aggregate of $4,928,916 of
indebtedness owed or to be owed by the Company to the Creditors. The Creditors
are sometimes referred to herein as the "Selling Stockholders." The Company will
not receive any proceeds from the sale of such shares of Common Stock by the
Selling Stockholders, with the exception of certain proceeds the Company may
receive in connection with the sale of the securities offered by the City of New
York. The shares of Common Stock offered from time to time by the Selling
Stockholders are hereinafter referred to as the "Shares." The Shares may be sold
from time to time directly by the Selling Stockholders or by pledgees, donees,
transferees or other successors in interest. Alternatively, the Shares may be
offered from time to time by the Selling Stockholders to or through brokers or
dealers who may act solely as agent, or may acquire shares as principal. The
distribution of the Shares may be effected in one or more transactions that take
place on the American Stock Exchange, including block trades, ordinary broker's
transactions, privately negotiated transactions or through sales to one or more
broker/dealers for resale of such securities as principals, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. Usual and customary or specifically negotiated
brokerage fees or commissions may be paid by these holders in connection with
such sales. In connection with such sales, the Selling Stockholders and any
participating brokers or dealers may be deemed "underwriters" as such term is
defined in the Securities Act of 1933, as amended.
The Company will bear all expenses (other than underwriting discounts and
selling commissions, state and local transfer taxes, and fees and expenses of
counsel or other advisers to the Selling Stockholders) in connection with the
registration of the Shares being offered by the Selling Stockholders.
AN INVESTMENT IN THE SHARES OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Common Stock of the Company is traded on the American Stock Exchange.
On November 4, 1996, the reported closing price of the Common Stock on the
American Stock Exchange was $17.50 per share.
The date of this Prospectus is November __, 1996
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representations in connection with this offering
other than those contained in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any other person. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any securities other than the
registered securities to which it relates or an offer to or solicitation of any
person in any jurisdiction in which such offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale or distribution
made hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof.
TABLE OF CONTENTS
Page
Available Information ..................................................... 3
Incorporation of Certain Information by Reference ......................... 3
The Company ............................................................... 5
Risk Factors .............................................................. 5
Pro Forma Financial Information ........................................... 8
Use of Proceeds ........................................................... 9
Selling Stockholders ...................................................... 9
Plan of Distribution ...................................................... 11
Experts ................................................................... 11
Legal Matters ............................................................. 11
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such materials may be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's regional offices located at 7 World Trade Center, 13th Floor, New
York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a World
Wide Web site on the Internet at http://www.sec.gov that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission.
The Company's reports, proxy statements and other information filed
with the Commission may also be inspected and copied at the American Stock
Exchange, 86 Trinity Place, New York, New York, on which the Company's Common
Stock is listed for trading.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 filed by the Company with the Commission (the
"Registration Statement") with respect to the securities to which this
Prospectus relates, certain parts of which are omitted in accordance with the
rules and regulations of the Commission. For further information with respect to
the Company and the shares offered hereby, reference is made to the Registration
Statement, including the exhibits thereto. Each summary in this Prospectus of
information included in the Registration Statement or any exhibit thereto is
qualified in its entirety by reference to such information or exhibit.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company hereby incorporates by reference the following documents
filed with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended July 31, 1996; and
(b) The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed
under the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof, and prior to the termination of the offering made hereby, shall be
deemed to be incorporated by reference into this Prospectus. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated by reference herein 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.
3
<PAGE>
The Company will provide a copy of any documents incorporated by
reference herein (excluding exhibits to the documents so incorporated, unless
such exhibits are specifically incorporated by reference into the information
that this prospectus incorporates), free of charge, to each person to whom this
Prospectus is delivered, upon written or oral request to Enzo Biochem, Inc., 60
Executive Blvd., Farmingdale, New York 11735, Attention: Corporate Secretary;
telephone (516) 755-5500.
4
<PAGE>
THE COMPANY
Enzo Biochem, Inc. (the "Company" or "Enzo") employing biotechnology,
develops, manufactures and markets health care products, and also provides
medical diagnostic services to the medical community. The business activities of
the Company are performed by one of the Company's three wholly-owned
subsidiaries--Enzo Diagnostics, Inc., Enzo Therapeutics, Inc., and Enzo Clinical
Labs, Inc. ("Enzo Diagnostics", Enzo Therapeutics" and "EnzoLabs",
respectively). These activities are: (1) diagnostic and research product
development, manufacture and marketing through Enzo Diagnostics, (2) therapeutic
product research and development through Enzo Therapeutics, and (3) the
operation of a clinical reference laboratory through EnzoLabs.
For the fiscal year ended July 31, 1996 (fiscal 1996), approximately
38% of the Company's operating revenues was derived from product sales and
approximately 62% was derived from clinical reference laboratory services. For
the fiscal years ended July 31, 1995 and 1994 (fiscal 1995 and fiscal 1994,
respectively), approximately 30% and 23%, respectively, of the Company's
operating revenues were derived from product sales and approximately 70% and
77%, respectively, were derived from clinical reference laboratory services.
The Company's principal executive offices are located at 60 Executive
Boulevard, Farmingdale, New York 11735, and its telephone number is (516)
755-5500.
RISK FACTORS
In evaluating the Company and its business, prospective purchasers of
the Shares offered hereby should consider carefully the following factors in
evaluating the Company and its operations:
Litigation with Calgene, Inc. In March 1993, the Company filed suit in
the United States District Court for the District of Delaware charging patent
infringement and acts of unfair competition against Calgene, Inc. and seeking a
declaratory judgment of invalidity concerning Calgene, Inc.'s antisense patent.
On February 9, 1994 the Company filed a second suit in the United States
District Court for the District of Delaware charging Calgene with infringement
of a second antisense patent owned by the Company. Calgene has filed a
counterclaim in the second Delaware action seeking a declaration that a third
patent belonging to the Company is invalid. The two Delaware actions have been
consolidated and were tried to the Court in April 1995. In addition, the Company
filed suit on March 22, 1994 in the United States District Court for the Western
District of Washington against Calgene and the Fred Hutchinson Cancer Research
Center, alleging that the defendants had conspired to issue a false and
misleading press release regarding a supposed "patent license" from Hutchinson
to Calgene, and conspired to damage the Company's antisense patents by
improperly using confidential information to challenge them in the Patent
Office. The Complaint further charges that Hutchinson is infringing and inducing
Calgene to infringe the Company's antisense patents. On February 2, 1996, the
Delaware Court issued an opinion ruling against Enzo and in favor of Calgene,
finding certain Enzo claims infringed, but the patent as a whole did not
infringe, and finding the claims at issue invalid for lack of enablement.
Calgene's patent was found valid (non-obvious) over the prior art. On February
29, 1996, the Delaware Court issued an Order withdrawing its February 2, 1996
opinion. Enzo intends to appeal from any adverse judgment. There can be no
assurance that the Company will be successful in any of the foregoing matters or
that Calgene, Inc. and/or Hutchinson will not be successful. However, even if
5
<PAGE>
the Company is not successful, management does not believe there will be a
significant monetary impact.
Competition; Technological Advances by Others. Competitors engaged in
genetic engineering in the United States and abroad are numerous and include,
among others, major pharmaceutical, energy, food and chemical companies, as well
as specialized genetic engineering firms. Many of the large corporations which
are involved in genetic engineering have substantially greater resources than
the Company and have the capability of developing products which compete
directly with the Company's products. Genetic engineering has undergone, and is
expected to continue to undergo, rapid and significant technological change. New
developments in recombinant DNA, monoclonal antibody and other biotechnological
processes are expected to continue at a rapid pace in both industry and
academia. Although the Company believes that its products will be commercially
viable, no assurance can be given that other developments will not render the
Company's products uneconomical or obsolete, or that the Company's products can
be marketed successfully.
Shares Eligible for Future Sale. Registration statements filed by the
Company with the Securities and Exchange Commission had been declared effective
with respect to significant amounts of the Company's Common Stock. Sales of
Common Stock pursuant to such registration statements may have an adverse effect
on the market price of the Common Stock.
Uncertainty of Product Development. The products being pursued by the
Company are at various stages of development and clinical evaluations and may
require further technical development and investment to determine whether
commercial application is practicable. There can be no assurance that the
Company's efforts will result in products with valuable commercial applications.
Uncertainty of Patent Protection; Proprietary Technology. The Company
has filed applications for United States and foreign patents covering certain
aspects of its technology, but there is no assurance that pending patents will
issue or as to the degree of protection which any issued patent might afford.
The Company also utilizes certain unpatented proprietary technology. There is no
assurance that others may not independently develop similar technology.
Retention of Key Personnel. The specialized scientific nature of the
Company's business requires the Company to attract and retain personnel with a
wide variety of scientific capabilities. To a large extent, the Company's
success in developing proprietary technological products has been the result of
the effective efforts of the Company's internal scientific staff and its
experience and talent. Since its inception an insignificant number of key
employees have left the Company. The Company has elected not to pursue the
purchase of key man insurance on any of its officers. There can be no assurance,
however, that the Company will continue to attract and retain personnel of high
scientific caliber.
Laws and Regulations. In order to manufacture and market therapeutic
and diagnostic products, prior clearance of regulatory agencies, in particular
the FDA and similar agencies in other countries, must be obtained. The Company
has an in-house regulatory department to assist in the preparation and filing of
documentation to expedite FDA approvals and patent issuances. The process of
obtaining FDA and corresponding foreign approvals is likely to be costly and
time consuming, and there can be no assurance that such approvals will be
granted. The process of obtaining approvals for noninvasive diagnostic products
is significantly less stringent than approvals for therapeutic products. The
6
<PAGE>
extent of potentially adverse government regulations which might arise from
future legislation or administrative action cannot be predicted.
7
<PAGE>
PRO FORMA (UNAUDITED) FINANCIAL INFORMATION
The following unaudited pro forma consolidated balance sheet gives
effect to (i) the issuance by the Company of an aggregate of 347,468 shares of
Common Stock to the Creditors in consideration of an aggregate of $4,928,916
amount of indebtedness owed or owing by the Company to the Creditors. The pro
forma consolidated balance sheet assumes such issuances occurred as of July 31,
1996 and gives effect to the Company's 5% stock dividend payable on October 29,
1996 to holders of record on October 8, 1996. Such pro forma information should
be read in conjunction with the Company's audited historical consolidated
financial statements and related notes thereto, which are incorporated by
reference in this Prospectus.
<TABLE>
<CAPTION>
ASSETS
July 31, 1996
-------------------------------------
(in thousands)
<S> <C> <C>
Actual Pro Forma
--------------- ---------------
Total current assets ................................................................... $ 35,914 $ 37,578
Other assets ........................................................................... 26,924 26,924
--------------- ---------------
Total assets ..................................................................... $ 62,838 $ 64,502
=============== ===============
LIABILITIES AND STOCKHOLDERS'
EQUITY
Total current liabilities .............................................................. $ 6,463 $ 3,243
Other liabilities ...................................................................... 1,122 1,122
--------------- ---------------
Total liabilities ................................................................ 7,585 4,365
--------------- ---------------
Stockholders' Equity
Preferred Stock, $.01 par value; authorized 25,000,000 shares; no shares issued or
outstanding
Common Stock, $.01 par value; authorized 75,000,000 shares Shares issued and
outstanding; 21,624,900 (actual) at July 31,1996; 23,053,613 (pro forma) at
July 31, 1996 .................................................................... 216 231
Additional paid-in capital ....................................................... 83,450 88,319
Accumulated deficit .............................................................. (28,413) (28,413)
--------------- ---------------
Total Stockholders' Equity............................................................ 55,253 60,137
--------------- ---------------
Total Liabilities and Stockholders' Equity ........................................... $ 62,838 $ 64,502
=============== ===============
- ---------------
<FN>
(1)
</TABLE>
8
<PAGE>
USE OF PROCEEDS
None of the proceeds from the sale of the shares by the Selling
Stockholders will be received by the Company, except that with respect to the
proceeds from the sale of the shares owned by the City of New York, to the
extent the proceeds from such sales, after deduction of brokerage and other
direct costs of such sale exceed $2,950,000, the Company shall be entitled to
such proceeds.
SELLING STOCKHOLDERS
The following table sets forth certain information, as of the date
hereof, with respect to the Shares held by each Selling Stockholder.
The Creditors were issued the 347,468 shares of Common Stock (giving
effect to the Company's 5% stock dividend payable on October 29, 1996 to holders
of record on October 8, 1996) being offered by them hereby in August 1996 and in
October 1996 in exchange for the cancellation of an aggregate of $4,928,916 owed
or to be owed by the Company to them. The Company is currently incurring
additional indebtedness to certain of the Creditors who continue to render legal
services to the Company. The shares offered hereby by the Creditors were
received in cancellation of indebtedness owed or owing to each Creditor incurred
in connection with legal, public relations or investment banking services
performed or to be performed for the Company, in satisfaction of insurance
premium obligations presently incurred or due in the future and in satisfaction
of actual obligations to the City of New York. The number of shares of Common
Stock issued in exchange for the indebtedness was negotiated between the Company
and each of the Creditors. None of the Selling Stockholders is an affiliate of
the Company. The shares offered by this Prospectus may be offered from time to
time by the Selling Shareholders named below.
<TABLE>
<CAPTION>
Amount of Number of Number of
Indebtedness Shares Owned Shares Shares Owned
Name of Converted into Before the Being After the
Selling Shareholder Common Stock Offering Offered Offering (1)
- --------------------------------------------------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Lieberman & Nowak LLP ................................... $ 150,202 18,612(2) 10,343 8,269
Vossius & Partner ....................................... $ 150,000 10,328 10,328 0
Graubard Mollen & Miller ................................ $ 38,675 2,663 2,663 0
Stadtmauer Bailkin LLP .................................. $ 35,039 2,413 2,413 0
Kenyon & Kenyon ......................................... $ 255,000 15,000 15,000 0
John J. Santalone ....................................... $ 150,000 11,264 10,328 936
Wilson Elser Moskowitz Edelman & Dicker ................. $ 30,000 2,065 2,065 0
The City of New York .................................... $ 2,950,000 213,623 213,623 0
Lehman Brothers Inc. .................................... $ 50,000 3,444(3) 3,444 0
Foley and Lardner ....................................... $ 250,000 17,214 17,214 0
Jacobs and Jacobs Inc. .................................. $ 750,000 52,139(4) 51,639 500
Christos G. Katis ....................................... $ 12,000 2,940(5) 971 1,969
(Continued)
9
<PAGE>
<CAPTION>
Amount of Number of Number of
Indebtedness Shares Owned Shares Shares Owned
Name of Converted into Before the Being After the
Selling Shareholder Common Stock Offering Offered Offering (1)
- --------------------------------------------------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Porter, LeVay & Rose Inc. Defined Benefit Pension Plan .. $ 36,000 2,479 2,479 0
Steven S. Anreder ....................................... $ 48,000 39,136(6) 3,305 35,831
M. Richard Keating ...................................... $ 24,000 4,410(7) 1,653 2,757
- ---------------
<FN>
(1) Assumes that all Shares offered by this Prospectus are sold.
(2) Includes 8,269 shares underlying options which are currently exercisable or which may be exercisable within 60 days. Does not
include 2,756 shares underlying options which are not exercisable within 60 days.
(3) Does not include 10,500 shares underlying options which are not exercisable within 60 days and which are held by a principal
of Lehman Brothers Inc.
(4) Includes 300 shares owned by a principal of Jacobs and Jacobs Inc. and 200 shares held by the wife of such principal.
(5) Includes 1,969 shares underlying options which are currently exercisable or which may be exercisable within 60 days. Does not
include 5,906 shares underlying options which are not exercisable within 60 days.
(6) Includes 35,831 shares underlying options which are currently exercisable or which may be exercisable within 60 days. Does not
include 2,757 shares underlying options which are not exercisable within 60 days.
(7) Includes 2,757 shares underlying options which are currently exercisable or which may be exercisable within 60 days. Does not
include 2,756 shares underlying options which are not exercisable within 60 days.
</TABLE>
10
<PAGE>
PLAN OF DISTRIBUTION
This Prospectus may be used from time to time by the Selling
Stockholders who offer the Shares registered hereby for sale in transactions in
which they are or may be deemed to be underwriters within the meaning of the
Securities Act of 1933. The Shares may be sold from time to time directly by the
Selling Stockholders or by pledgees, donees, transferees or other successors in
interest. Alternatively, the Shares may be offered from time to time by the
Selling Stockholders to or through brokers or dealers who may act solely as
agent, or may acquire shares as principal. The distribution of the Shares may be
effected in one or more transactions that may take place on the American Stock
Exchange, including block trades, ordinary broker's transactions, privately
negotiated transactions or through sales to one or more broker/dealers for
resale of such securities as principals, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices. Usual and customary or specifically negotiated brokerage fees or
commissions may be paid by these holders in connection with such sales. In
connection with such sales, the Selling Stockholders and any participating
brokers or dealers may be deemed "underwriters" as such term is defined in the
Securities Act of 1933, as amended.
EXPERTS
The consolidated financial statements and schedule of Enzo Biochem,
Inc. appearing in Enzo Biochem, Inc.'s Annual Report (Form 10-K) for the year
ended July 31, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters relating to the Shares will be passed upon for
the Company by Bryan Cave LLP, 245 Park Avenue, New York, New York 10167-0034.
Certain members of Bryan Cave LLP are beneficial and/or record owners of
securities of the Company.
11
<PAGE>
ENZO BIOCHEM, INC.
347,468 Shares
PROSPECTUS
__________, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution
S.E.C. Registration ....................................... $ 1,868.95
Legal Fees and Expenses ................................... 35,000
Accountants' Fees and Expenses ............................ 5,000
Miscellaneous ............................................. 3,131.05
-------------
Total ..................................................... $ 45,000.00
=============
Item 15. Indemnification of Directors and Officers.
ARTICLE V of the Registrant's By-Laws provides as follows:
Section 1. Indemnification-Third Party and Derivative Actions.
(a) The Corporation shall indemnify any person made, or threatened to
be made, a party to an action or proceeding (other than one by or in the right
of the Corporation to procure a judgment in its favor), whether civil or
criminal, including an action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or officer of the
Corporation served in any capacity at the request of the Corporation, by reason
of the fact that he, his testator or intestate, is or was a director or officer
of the Corporation, by reason of the fact that he, his corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement and expenses (including
attorneys' fees) incurred in connection with any such action or proceeding, or
any appeal therein, provided that no indemnification may be made to or on behalf
of such person if (i) his acts were committed in bad faith or were the result of
his active and deliberate dishonesty and were material to such action or
proceeding or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled
(b) The Corporation shall indemnify any person made, or threatened to
be made, a party to an action by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of any other corporation of
any type or kind, domestic or foreign, or of any partnership, joint venture,
trust, employee benefit plan or other enterprise, against judgments, fines,
amounts paid in settlement and expenses (including attorneys' fees) incurred in
connection with such action, or any appeal therein, provided that no
indemnification may be made to or on behalf of such person if (i) his acts were
committed in bad faith or were the result of his active and deliberate
dishonesty and were material to such action or (ii) he personally gained in fact
a financial profit or other advantage to which he was not legally entitled.
II-1
<PAGE>
(c) The termination of any civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendre, or its
equivalent, shall not in itself create a presumption that any such person has
not met the standard of conduct set forth in this Section 1.
(d) For the purpose of this Section 1: (i) the Corporation shall be
deemed to have requested a person to serve an employee benefit plan where the
performance by such person of his duties to the Corporation also imposes duties
on, or otherwise involve services by, such person to the plan or participants or
beneficiaries of the plan; and (ii) excise taxes assessed on a person with
respect to an employee benefit plan pursuant to applicable law shall be
considered fines.
Section 2. Payment of Indemnification; Repayment
(a) A person who has been successful, on the merits or otherwise, in
the defense of a civil or criminal action or proceeding of the character
described in Section I of this Article V shall be entitled to indemnification as
authorized in such Section.
(b) Except as provided in paragraph (a) of this Section 2, any
indemnification under Section I of this Article V, unless ordered by a court,
shall be made by the Corporation only if authorized in the specific case:
(i) by the Board of Directors acting by a quorum consisting of
directors who are not parties to the action or proceeding giving rise to the
indemnity claim upon a finding that the director or officer has met the standard
of conduct set forth in Section I of this Article V; or
(ii) if a quorum under the foregoing clause (i) is not
obtainable or, even if obtainable, a quorum of disinterested directors so
directs:
(A) by the Board of Directors upon the opinion in
writing of independent legal counsel that indemnification is proper in
the circumstances because the standard of conduct set forth in Section
I of this Article V has been met by such director or officer, or
(B) by the shareholders of the Corporation upon a
finding that the director or officer has met such standard of conduct.
(c) Expenses Incurred by a director or officer in defending a civil or
criminal action or proceeding shall be paid by the Corporation in advance of the
final disposition of such action or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount in case he is
ultimately found, in accordance with this Article V, not to be entitled to
indemnification or, where indemnity is granted, to the extent the expenses so
paid exceed the indemnification to which he is entitled.
(d) Any indemnification of a director or officer of the Corporation
under Section I of this Article V, or advancement of expenses under paragraph
(c) of this Section 2, shall be made promptly, and in any event within 60 days,
upon the written request of the director or officer.
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Section 3. Enforcement; Defenses. The right to indemnification or
advancement of expenses granted by this Article V shall be enforceable by the
director or officer in any court of competent jurisdiction if the Corporation
denies such request, in whole or in part, or if no disposition thereof is made
within 60 days after written request by the director or officer. Such person's
expenses incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advancement of expenses under
Section 2 of this Article V where the required undertaking has been received by
the Corporation) that the claimant has not met the standard of conduct set forth
in Section I of this Article V, but the burden of providing such defense shall
be on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, its independent legal counsel, and its shareholders) to have
made a determination that indemnification of the claimant is proper in the
circumstances, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its shareholders) that indemnification of the claimant is not proper in the
circumstances, shall be a defense to the action or create a presumption that the
claimant is not entitled to indemnification,
Section 4. Survival, Savings Clause; Preservation of Other Rights.
(a) The foregoing indemnification provisions shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while these provisions, as well as the relevant
provisions of the New York Business Corporation Law, are in effect and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any
action or proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts. Such a contract fight may not be
modified retroactively without the consent of such director or officer.
(b) If this Article V or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director or officer of the Corporation against
judgments, fines, amounts paid in settlement and expenses (including attorneys'
fees) incurred in connection with any actual or threatened action or proceeding,
whether civil or criminal, including any actual or threatened action by or in
the right of the Corporation, or any appeal therein, to the full extent
permitted by any applicable portion of this Article V that shall not have been
invalidated and to the full extent permitted by applicable law.
(c) The indemnification provided by this Article V shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of shareholders or directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person. The Corporation is hereby authorized to provide
further indemnification if it deems advisable by resolution of shareholders or
directors, by amendment of these by-laws or by agreement.
Section 5. Insurance. The Corporation may purchase and maintain
insurance:
(a) to indemnify the Corporation for any obligation which it incurs as
a result of the indemnification of directors and officers under the provisions
of this Article V,
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(b) to indemnify directors and officers in instances in which they may
be indemnified by the Corporation under the provisions of this Article V, and
(c) to indemnify directors and officers in instances in which they may
not otherwise be indemnified by the Corporation under the provisions of this
Article V, provided that the contract of insurance covering such directors and
officers pursuant to the foregoing paragraph (c) of Section 4 of this Article V
shall provide, in a manner acceptable to the superintendent of insurance, for a
retention amount and for co-insurance, and provided, further, that no insurance
under this Article V may provide for any payment, other than the cost of
defense, to or on behalf of any director or officer if a judgment or other final
adjudication adverse to the insured director or officer establishes (i) that his
acts of active and deliberate dishonesty were material to the cause of action so
adjudicated or (ii) that the director or officer personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
Section 6. Indemnification of Persons not Directors or Officers of the
Corporation. The Corporation may, by resolution adopted by the Board of
Directors of the Corporation, indemnify any person not a director or officer of
the Corporation, who is made, or threatened to be made, a party to an action or
proceeding, whether civil or criminal, by reason of the fact that he, his
testator or intestate, is or was an employee or other agent of the Corporation,
against judgments, fines, amounts paid in settlement and expenses (including
attorneys' fees) incurred in connection with such action or proceeding, or any
appeal therein, provided that no indemnification may be made to or on behalf of
such person if (i) his acts were committed in bad faith or were the result of
active and deliberate dishonesty, and such acts were material to such action or
proceeding, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
Section 7. Retroactivity. The right to indemnification conferred by
this Article V shall be retroactive to events occurring prior to the adoption of
this Article V to the fullest extent permitted by law.
Article 12 of the Registrant's Certificate of Incorporation provides as
follows:
"12. No director of the Corporation shall be liable to the Corporation
or its shareholders for damages for any breach of duty in such
capacity, provided that nothing contained in this Article shall
eliminate or limit the liability of a director (i) if a judgment or
other final adjudication adverse to him establishes that his acts or
omissions were in bad faith or involved intentional misconduct or a
knowing violation of law, or that he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled, or that his acts violated Section 719 of the New York
Business Corporation Law or (ii) for any act or omission prior to
July 8, 1988."
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<PAGE>
Item 16. Exhibits
Exhibit No. Description
- ----------- -------------------------------------------------------------------
5.1 Opinion of Bryan Cave LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1).
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(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 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;
(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.
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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
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<PAGE>
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Farmingdale, State of New York, on
this 4th day of November, 1996.
ENZO BIOCHEM, INC.
By: /s/ Elazar Rabbani
------------------------------------
Elazar Rabbani, Ph.D, Chairman & CEO
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints ELAZAR RABBANI and BARRY WEINER, and each
of them, his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission granting into 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 might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
- ------------------------------ ------------------------------ ----------------
/s/ Elazar Rabbani
- ------------------------------ Chairman & CEO November 4, 1996
Elazar Rabbani (Principal Executive Officer)
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<PAGE>
Signature Title Date
- ------------------------------ ------------------------------ ----------------
/s/ Shahram K. Rabbani
- ------------------------------ Chief Operating Officer, November 4, 1996
Shahram K. Rabbani Treasurer and Director
(Principal Financial and
Accounting Officer)
/s/ Barry W. Weiner
- ------------------------------ President, Secretary and November 4, 1996
Barry W. Weiner Director
- ------------------------------ Director
John B. Sias
- ------------------------------ Director
John J. Delucca
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -------------------------------------------------------------------
5.1 Opinion of Bryan Cave LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
II-9
EXHIBIT 5.1
BRYAN CAVE LLP
245 PARK AVENUE
NEW YORK, NEW YORK 10167-0034
(212) 692-1800
FACSIMILE: (212) 692-1900
November 5, 1996
Enzo Biochem, Inc.
60 Executive Boulevard
Farmingdale, New York 11735
Dear Sirs:
We refer to the Registration Statement on Form S-3 filed by you with
the Securities and Exchange Commission relating to 347,468 shares of Common
Stock, $.01 par value per share (the "Shares"), of Enzo Biochem, Inc. (the
"Company").
We have examined and are familiar with originals, or copies certified
or otherwise identified to our satisfaction, of such corporate records of the
Company, certificates of officers of the Company and of public officials and
such other documents as we have deemed appropriate as a basis for the opinions
expressed below.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and existing under the laws of the
State of New York;
2. The Shares have been duly authorized; and
3. The Shares being sold by the selling stockholders, when sold as
contemplated in the Registration Statement, will be legally issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion in the above-mentioned
Registration Statement and to the reference to our name under the heading "Legal
Opinions" in the Prospectus constituting a part of such Registration Statement.
Very truly yours,
BRYAN CAVE LLP
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Enzo
Biochem, Inc. for the registration of 347,468 shares of its common stock and to
the incorporation by reference therein of our report dated October 15, 1996,
with respect to the consolidated financial statements and schedule of Enzo
Biochem, Inc. included in its Annual Report (Form 10-K) for the year ended
July 31, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Melville, New York
November 4, 1996
