<PAGE>
As filed with the Securities and Exchange Commission on January 17, 1997
Registration No. 333-15533
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
AMENDMENT NO. 2 TO
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.
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
(212) 735-8680
------------------------------------
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|
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
416,521 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 416,521 shares (giving effect to the Company's 5% stock
dividend paid 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, October and December 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 $6,171,871 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 January 16, 1997, the reported closing price of the Common Stock on the
American Stock Exchange was $18.625 per share.
The date of this Prospectus is ___________, 1997
<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............................................................... 4
Risk Factors.............................................................. 4
Pro Forma Financial Information........................................... 8
Use of Proceeds........................................................... 9
Selling Stockholders...................................................... 9
Plan of Distribution...................................................... 11
Experts................................................................... 11
Legal Matters............................................................. 11
2
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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 as amended by Form 10-K/A-1 dated December 26, 1996 and
by Form 10-K/A-2 dated January 14, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
October 31, 1996 as amended by Form 10-Q/A-1 dated January 14, 1997;
(c) 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.
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.
3
<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:
Possible Adverse Consequences of 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 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
4
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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. The clinical laboratory business is highly fragmented
and intensely competitive. The Company competes primarily on the basis of the
quality of its testing, reporting and information services, its reputation in
the medical community, the pricing of its services and its ability to employ
qualified laboratory personnel.
Net Loss for Fiscal Quarters ended July 31, 1995 and 1996 and Year Ended
July 31, 1996; Results for October 31, 1996. Although the Company's revenues for
the fiscal quarter and year ended July 31,1996 were higher than the respective
comparable periods, earnings were adversely affected by two actions: a $7.6
million write-off related to real estate and establishment of a $3.5 million
reserve, which takes account of recent reductions in Medicare reimbursement
payments to the clinical laboratory industry. As a result, the Company
experienced net losses of $9.6 million, or $0.43 per share, in the fourth
quarter of fiscal 1996 and $7.7 million, or $0.34 per share, for fiscal 1996.
The Company had a net loss of $13.9 million, or $0.60 per share, for the fiscal
quarter ended July 31, 1995. Net income for fiscal 1995 amounted to $5.6
million, or $0.24 per share, giving effect to the benefit of a litigation
settlement of $21.9 million. Operating revenues for the fiscal quarter ended
October 31, 1996 ("1996 Quarter") were $8,005,000, as compared to $8,556,000 for
the October 31, 1995 quarter ("1995 Quarter"). Net income for the 1996 Quarter
was $122,000, or $0.01 per share, compared with $904,000 or $0.04 per share, for
the 1995 Quarter. While sales results at Enzo Diagnostics continued to increase,
1996 Quarter results reflected lower sales at Enzo Clinical Labs as a result of
a policy to discontinue servicing unprofitable accounts to create a more
favorable mix of customers and to improve margins. In addition, a 1996 Quarter
55% increase in research and development in the therapeutics area, as well as
reductions in reimbursement rates at the clinical reference laboratory affected
results. There can be no assurance that the Company will generate future net
income.
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, Significant Costs Associated with
Research and Development Activities. 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. The Company's
cash requirements may vary materially from current estimates because of results
of the Company's research and development programs, competitive and
technological advances and other factors. In any event, the Company will require
substantial funds to conduct development activities and pre-clinical and
clinical trials, apply for regulatory approvals and commercialize products, if
any, that it develops. The Company does not have any commitments or arrangements
to obtain any additional financing and there is no assurance that required
financing will be available to the Company on acceptable terms, if at all.
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.
5
<PAGE>
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
that the Company will continue to attract and retain personnel of high
scientific caliber.
Government Regulations to which the Company are Subject. 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 extent of potentially adverse
government regulations which might arise from future legislation or
administrative action cannot be predicted.
Government Regulation and Reimbursement. The research, preclinical
development, clinical trials, product manufacturing and marketing to be
conducted by the Company are subject to regulation by the FDA and similar health
authorities in foreign countries. FDA approval of the Company's products, as
well as the manufacturing processes and facilities, if any, used to produce such
products, will be required before such products may be commercialized in the
United States. The process of obtaining approvals from the FDA is costly, time
consuming and often subject to unanticipated delays. There can be no assurance
that approvals of any of the proposed products, processes or facilities will be
granted on a timely basis, if at all. Even if regulatory approval is granted,
such approval may include significant limitations on indicated uses for which
any such products could be marketed. Further, even if such regulatory approvals
are obtained, a marketed product and its manufacturer are subject to continued
review, and later discovery of previously unknown problems may result in
restrictions on such product or manufacturer, including withdrawal of the
product from the market. New government regulations in the United States or
foreign countries also may be established that could delay or prevent regulatory
approval of the Company's products under development. Further, because gene
therapy is a relatively new technology and has not been extensively tested in
humans, the regulatory requirements governing gene therapy products are
uncertain and may be subject to substantial further review by various regulatory
authorities in the United States and abroad. This uncertainty may result in
extensive delays in initiating clinical trials and in the regulatory approval
process for the Company. Failure by the Company to obtain regulatory approval of
their proposed products, processes or facilities could have a material adverse
effect on the business, financial condition and results of operations of the
Company. The proposed products under development may also be subject to certain
other federal, state and local government regulations, including, but not
limited to , the Federal Food, Drug and Cosmetic Act, the Environmental
Protection Act, and Occupational Safety and Health Act, and state, local and
foreign counterparts to certain of such acts.
The clinical laboratory industry is subject to significant governmental
regulation at the Federal, state and local levels. Under the Clinical Laboratory
Improvement Act of 1967 and the Clinical Laboratory Improvement Amendments of
1988 (collectively, as amended "CLIA") virtually all clinical laboratories,
including the Company's, must be certified by the Federal government. Many
clinical laboratories also must meet governmental standards, undergo proficiency
testing and are subject to inspection. Certifications or licenses are also
required by various state and local laws.
The health care industry is undergoing significant change as third-party
payors, such as Medicare (which principally serves patients 65 and older) and
Medicaid (which principally serves indigent patients) and insurers, increase
their efforts to control the cost, utilization and delivery of health
6
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care services. In an effort to address the problem of increasing health care
costs, legislation has been proposed or enacted at both the Federal and state
levels to regulate health care delivery in general and clinical laboratories in
particular. Some of the proposals include managed competition, global budgeting
and price controls.
7
<PAGE>
PRO FORMA (UNAUDITED) FINANCIAL INFORMATION
The following October 31, 1996 unaudited pro forma consolidated balance
sheet gives effect to the issuance by the Company in December 1996 of an
aggregate of 69,053 shares of Common Stock to the Creditors in consideration of
an aggregate of $1,242,955 of indebtedness owed or owing by the Company to the
Creditors. The October 31, 1996 pro forma consolidated balance sheet assumes
such issuances occurred as of October 31, 1996. The actual and pro forma October
31, 1996 consolidated balance sheets also gives effect to the issuance of
347,468 shares of common stock to the creditors in consideration of an aggregate
of $4,928,916 of indebtedness owed or owing by the Company to the creditors,
which shares were issued in August and October 1996, and also reflects the
Company's 5% stock dividend paid on October 29, 1996 to holders of record on
October 8, 1996. Such October 31, 1996 pro forma information should be read in
conjunction with the Company's audited historical consolidated financial
statements and related notes thereto, which are incorporated herein by reference
in this Prospectus.
<TABLE>
<CAPTION>
ASSETS
------------------------------------------------------
October 31, 1996
------------------------------------------------------
(in thousands)
Pro Forma
Actual Adjustment Pro Forma
--------------- --------------- ---------------
<S> <C> <C> <C>
Total current assets ...................................................... $ 42,359 $ 90 (1) $ 42,449
Other assets .............................................................. 21,851 -- 21,851
--------------- -------------- ---------------
Total assets ......................................................... $ 64,210 $ 90 $ 64,300
=============== ============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------------------------
Total current liabilities ................................................. $ 2,705 $ (1,103)(1) $ 1,602
Other liabilities ......................................................... 1,107 -- 1,107
--------------- -------------- ---------------
Total liabilities .................................................... $ 3,812 $ (1,103) $ 2,709
=============== ============== ===============
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; 23,076,000 (actual) at October 31,1996;
23,145,100 (pro forma) at October 31, 1996; 231 -- 231
--------------- -------------- ---------------
Additional paid-in capital (2) ....................................... 88,458 1,193 (1) 89,651
Accumulated deficit .................................................. (28,291) -- (28,291)
--------------- -------------- ---------------
Total Stockholders' Equity ........................................... 60,398 1,193 61,591
--------------- -------------- ---------------
Total Liabilities and Stockholders' Equity ........................... $ 64,210 $ 90 $ 64,300
=============== ============== ===============
<FN>
- ---------------
(1) Adjustment reflects the issuance of 69,053 shares of common stock par value $.01 of the Company with a fair market value of
$1,243,000 at the respective dates of issuance in exchange for indebtedness of $1,153,000 and including prepayments to the
Selling Shareholders of $90,000. Accrued offering costs of $50,000 have been offset against additional paid-in capital.
(2) Included in the common stock being offered are 213,623 shares of the Company's common stock issued to the City of New York
(the "City") in August 1996. If the City has not received the net proceeds of $2,950,000 upon the sale of such stock by
March 17, 1997, the City shall return the remaining shares not sold, if any, and the Company shall pay the difference in cash.
The Company would receive the net proceeds in excess of $2,950,000. The excess or deficiency of the net proceeds received by
the Company or paid to the City shall be recorded to additional paid-in capital.
</FN>
</TABLE>
8
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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.
Included in the common stock being offered are 213,623 shares of the
Company's common stock issued to the City of New York (the "City") in August
1996. If the City has not received the net proceeds of $2,950,000 upon the sale
of such stock by March 17, 1997, the City shall return the remaining shares not
sold, if any, and the Company shall pay the difference in cash. The Company
would receive the net proceeds in excess of $2,950,000. The excess or deficiency
of the net proceeds received by the Company or paid to the City shall be
recorded to additional paid-in capital.
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 416,521 shares of Common Stock (giving effect
to the Company's 5% stock dividend paid on October 29, 1996 to holders of record
on October 8, 1996) being offered by them hereby in August 1996, in October and
in December 1996 in exchange for the cancellation of an aggregate of $6,171,871
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.
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)
- --------------------------- -------------- ------------ ------- ------------
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 $345,000 20,000 20,000 0
John J. Santalone $150,000 11,264 10,328 936
9
<PAGE>
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)
- --------------------------- -------------- ------------ ------- ------------
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
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
Anderson Kill & Olick, P.C. $1,152,955 65,431(8) 64,053 1,378
- ---------------
(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.
(8) Includes 1,378 shares underlying options which are currently exercisable or
which may be exercisable within 60 days and which are owned by
Mr. Arthur Olick.
10
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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 Morrison Cohen Singer & Cohen, LLP, 750 Lexington Avenue, New York,
New York 10022. Certain members of Morrison Cohen Singer & Cohen, LLP are
beneficial and/or record owners of securities of the Company.
11
<PAGE>
ENZO BIOCHEM, INC.
416,521 Shares
PROSPECTUS
__________, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution
S.E.C. Registration.......................................... $ 2,271.93
Legal Fees and Expenses...................................... 40,000.00
Accountants' Fees and Expenses............................... 5,000.00
Miscellaneous................................................ 2,728.07
----------
Total........................................... $50,000.00
==========
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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<PAGE>
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,
II-3
<PAGE>
(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."
II-4
<PAGE>
Item 16. Exhibits
Exhibit No. Description
- ----------- -------------------------------------------------------------------
5.1 Opinion of Morrison Cohen Singer & Weinstein, LLP
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Morrison Cohen Singer & Weinstein, 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
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 17th day of January, 1997.
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 January 17, 1997
- --------------------------- (Principal Executive Office)
Elazar Rabbani
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<PAGE>
Signature Title Date
- --------------------------- ------------------------------- ------------------
/s/ Shahram K. Rabbani Chief Operating Officer, January 17, 1997
- --------------------------- Treasurer, Secretary and
Shahram K. Rabbani Director (Principal Financial
and Accounting Officer)
/s/ Barry W. Weiner President and Director January 17, 1997
- ---------------------------
Barry W. Weiner
- --------------------------- Director
John B. Sias
- --------------------------- Director
John J. Delucca
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -------------------------------------------------------------------
5.1 Opinion of Morrison Cohen Singer & Weinstein, LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Morrison Cohen Singer & Weinstein, LLP (included in
Exhibit 5.1)
II-8
EXHIBIT 5.1
MORRISON COHEN SINGER & WEINSTEIN, LLP
750 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 735-8680
FACSIMILE: (212) 735-8708
January 13, 1997
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 416,521 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 the Shares are
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,
MORRISON COHEN SINGER & WEINSTEIN, 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 No. 333-15533) and related Prospectus of Enzo
Biochem, Inc. for the registration of 416,521 shares of its common stock and to
the incorporation by reference therein of our report dated October 15, 1996,
with respect to the consolidated finacial 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
January 17, 1997
