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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 27, 2000
REGISTRATION NO. 33-88826
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.)
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60 EXECUTIVE BOULEVARD, FARMINGDALE,
NEW YORK 11735
(Address of Principal Executive
Offices) (Zip Code)
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ENZO BIOCHEM, INC. 1994 STOCK OPTION PLAN
(Full Title of the Plans)
BARRY W. WEINER
ENZO BIOCHEM, INC.
60 EXECUTIVE BOULEVARD
FARMINGDALE, NEW YORK 11735
(Name and Address of Agent For Service)
(516) 755-5500
(Telephone Number, Including Area Code, of Agent For Service)
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Copies to:
ROBERT H. COHEN, ESQ.
MORRISON COHEN SINGER & WEINSTEIN, LLP
750 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 735-8600
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EXPLANATORY NOTE
This registration statement is being filed as a post-effective amendment to
Registration Statement on Form S-8 (Registration No. 33-88826) filed with the
Securities and Exchange Commission on January 27, 1995. No fee is being paid in
connection with this post-effective amendment. A filing fee covering the shares
offered hereby was paid at the time of the initial filing.
This registration statement registers reoffers and resales of shares of
common stock, issuable upon the exercise of options granted under our 1994 Stock
Option Plan, that may constitute "control securities" under General
Instruction C to Form S-8. These control securities may be re-offered and resold
on a continuous or delayed basis in the future under Rule 415 of the Securities
Act of 1933, as amended (the "Securities Act").
This registration statement contains two parts. The first part contains a
"reoffer prospectus" prepared in accordance with Part I of Form S-3 (in
accordance with Instruction C of Form S-8). The second part contains information
required in the registration statement pursuant to Part II of Form S-8.
<PAGE>
REOFFER PROSPECTUS
ENZO BIOCHEM, INC.
38,951 SHARES OF COMMON STOCK
This reoffer prospectus is to be used for the resale of up to 38,951 shares
of our common stock, by a director listed in the "Selling Stockholder" table
included in this prospectus. The shares of Common Stock are issuable upon the
exercise of options granted under our 1994 Stock Option Plan.
The Selling Stockholder may sell its shares of common stock through public
or private transactions at current market prices, or at previously negotiated
prices. Although we will not receive any proceeds when the Selling Stockholder
sell its shares of common stock to others, we may, however, receive proceeds
when the Selling Stockholder exercises its options to acquire such shares of
common stock.
Our common stock is traded on the New York Stock Exchange under the symbol
"ENZ."
SEE "RISK FACTORS" BEGINNING ON PAGE 2 OF THIS PROSPECTUS FOR A DISCUSSION
OF MATERIAL FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN THE COMMON STOCK
OFFERED BY THIS PROSPECTUS.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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The date of this Prospectus is January 27, 2000.
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TABLE OF CONTENTS
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PAGE
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AVAILABLE INFORMATION....................................... 1
RISK FACTORS................................................ 2
USE OF PROCEEDS............................................. 3
DETERMINATION OF OFFERING PRICE............................. 4
SELLING STOCKHOLDER......................................... 4
PLAN OF DISTRIBUTION........................................ 5
LEGAL MATTERS............................................... 5
EXPERTS..................................................... 5
</TABLE>
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AVAILABLE INFORMATION
We are a public company. We file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). You may read and copy any document we file with the SEC
at the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov.
We have filed a registration statement (of which this prospectus is a part)
under the Securities Act of 1933, as amended, with the Securities and Exchange
Commission, with respect to the securities being offered. This prospectus does
not contain all of the information set forth in the registration statement. We
have omitted information as permitted by the rules and regulations of the
Securities and Exchange Commission. Statements contained in this prospectus as
to the contents of any contract or other document are not necessarily complete,
and in each instance we refer you to the copy of this contract or other document
filed as an exhibit to the registration statement. Each statement made in this
prospectus is qualified in all respects by the contents of the exhibits and
schedules to the registration statement. For further information regarding our
company and the securities being offered, please read the registration statement
and the exhibits and schedules which may be obtained from the Securities and
Exchange Commission at its principal office in Washington, D.C. upon payment of
the fees prescribed by the Securities and Exchange Commission.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until the Selling Stockholder sells all of its shares of common stock.
1. Annual Report on Form 10-K for the fiscal year ended July 31, 1999;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended October 31,
1999;
3. Definitive proxy statement filed with the SEC on November 29, 1999
pursuant to Regulation 14A under the Securities Exchange Act of 1934;
4. The description of our common stock set forth in our Registration
Statement filed under Section 12 of the Securities Exchange Act of 1934
on Form 8-A on December 16, 1999 and any amendment or report filed for
the purpose of updating any such description; and
You may request a copy of these filings, at no cost, by oral request or by
writing to us at the following address:
Enzo Biochem, Inc.
60 Executive Boulevard
Farmingdale, New York 11735
Attention: Shahram K. Rabbani
Telephone: (516) 755-5500
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The Selling Stockholder will not
make an offer of these shares of common stock in any State where the offer is
not permitted. You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on the front of
those documents.
<PAGE>
RISK FACTORS
You should carefully consider the following factors and other information in
this prospectus before deciding to invest in the securities we are offering in
this prospectus.
COMPETITION; TECHNOLOGICAL ADVANCES BY OTHERS
Our competitors in genetic engineering in the United States and abroad are
numerous and include major pharmaceutical, energy, food and chemical companies,
as well as specialized genetic engineering firms. Many of our large competitors
in genetic engineering have substantially greater resources than us and have the
capability of developing products which compete directly with our 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 we believe that
our products will be commercially viable, no assurance can be given that other
developments will not render our products uneconomical or obsolete, or that our
products can be marketed successfully. The clinical laboratory business is
highly fragmented and intensely competitive. We compete primarily on the basis
of the quality of our testing, reporting and information services, our
reputation in the medical community, the pricing of our services and our ability
to employ qualified laboratory personnel.
UNCERTAINTY OF PRODUCT DEVELOPMENT, SIGNIFICANT COSTS ASSOCIATED WITH RESEARCH
AND DEVELOPMENT ACTIVITIES
The products we are developing 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 our efforts will result in products with valuable
commercial applications. Our cash requirements may vary materially from current
estimates because of results of our research and development programs,
competitive and technological advances and other factors. In any event, we will
require substantial funds to conduct development activities and pre-clinical and
clinical trials, apply for regulatory approvals and commercialize products, if
any, that are developed. We do not have any commitments or arrangements to
obtain any additional financing and there is no assurance that required
financing will be available to us on acceptable terms, if at all.
UNCERTAINTY OF PATENT PROTECTION; PROPRIETARY TECHNOLOGY
We have filed applications for United States and foreign patents covering
certain aspects of our technology, but there is no assurance that pending
patents will issue or as to the degree of protection which any issued patent
might afford. We also utilize 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 our business requires us to attract and
retain personnel with a wide variety of scientific capabilities. To a large
extent, our success in developing proprietary technological products has been
the result of the effective efforts of our internal scientific staff and its
experience and talent. Since our inception an insignificant number of key
employees have left us. We have key man life insurance on Dr. Elazar Rabbani,
our Chief Executive Officer, in the amount of $3,000,000. There can be no
assurance that we will continue to attract and retain personnel of high
scientific caliber.
GOVERNMENTAL REGULATIONS TO WHICH THE COMPANY ARE SUBJECT
We must obtain prior clearance of regulatory agencies, in particular the
FDA, and similar agencies in other countries, in order to manufacture and market
therapeutic and diagnostic products. We have
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<PAGE>
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 costly and time consuming,
and there can be no assurance that such approvals will be granted. The process
of obtaining approvals for diagnostic products is significantly less stringent
than approvals for therapeutic products. We cannot predict the extent of
potentially adverse government regulations which might arise from future
legislation or administrative action.
GOVERNMENT REGULATION AND REIMBURSEMENT
Our research, preclinical development, clinical trials, product
manufacturing and marketing are subject to regulation by the FDA and similar
health authorities in foreign countries. FDA approval is required for our
products, as well as the manufacturing processes and facilities, if any, used to
produce our products that may be sold 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 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 our 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. Our failure to obtain regulatory
approval of their proposed products, processes or facilities could have a
material adverse effect on our business, financial condition and results of
operations. 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 ours, 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 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.
USE OF PROCEEDS
We will not receive any proceeds when the Selling Stockholder sells its
common stock to others. However, we may receive proceeds when the Selling
Stockholder exercises its options to acquire such common stock. We intend to use
any such proceeds for research and development and other general corporate
purposes.
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DETERMINATION OF OFFERING PRICE
The Selling Stockholder may sell its shares of common stock through public
or private transactions at current market prices, or at previously negotiated
prices.
SELLING STOCKHOLDER
The shares of common stock to which this prospectus relates are being
registered for reoffers and resales by the Selling Stockholder who has acquired
or may acquire such common stock pursuant to the exercise of options granted
under our 1994 Stock Option Plan. The Selling Stockholder named below may resell
all, a portion or none of its shares of common stock, from time to time.
The table below sets forth the following information, assuming sale by the
Selling Stockholder of all shares of Common Stock issued upon exercise of
options granted under our 1994 Stock Option Plan: (1) the name of the Selling
Stockholder and the nature of positions held by the selling stockholder within
the past three years with our company; (2) the total number of shares of common
stock owned by the Selling Stockholder immediately following the payment of
shares pursuant to the plan; (3) the number of shares of common stock offered by
this prospectus for the account of that Selling Stockholder as of the date of
this prospectus; (4) the number of shares of common stock to be owned by the
Selling Stockholder after the offering covered by this prospectus; and (5) the
percentage of all outstanding shares of common stock owned by the Selling
Stockholder after the offering covered by this prospectus.
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COMMON COMMON
STOCK COMMON STOCK STOCK
BENEFICIALLY WHICH MAY BE BENEFICIALLY PERCENTAGE (%) OF
OWNED SOLD PURSUANT OWNED COMMON STOCK
BEFORE TO THIS AFTER OWNED AFTER
NAME AND POSITION OF SELLING STOCKHOLDER REOFFER(1) PROSPECTUS(2) REOFFER REOFFER(3)
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John J. Delucca ........................... 38,951(4) 38,951 0 0
Director
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(1) Unless indicated, then we assume that the person named in the table has
sole voting and investment power with respect to all shares of our common
stock beneficially owned by him. For purposes of this table, any security
which such person has the right to acquire within 60 days after such date
is deemed to be outstanding for the purpose of computing the percentage of
ownership for such person, but is not deemed to be outstanding for the
purpose of computing the percentage of any other person.
(2) Does not include shares of common stock that may be acquired by the Selling
Stockholder upon exercise of options which have not vested within 60 days
of this prospectus which shares, if any, will be added to the number of
shares listed by one or more supplements to this prospectus. Furthermore,
the inclusion in this prospectus of the stated number of shares does not
constitute a commitment to sell any or all of such shares. The number of
shares of common stock offered shall be determined from time to time by the
Selling Stockholder at his sole discretion.
(3) Based on an aggregate of 25,271,093 common stock that will be issued and
outstanding upon the completion of this offering, consisting of 25,232,142
shares of common stock issued and outstanding as of January 24, 2000 and
the 38,951 to which this prospectus relates.
(4) Includes 38,951 shares of Common Stock issuable upon the exercise of
options which within 60 days from the date hereof. Does not include 13,750
shares of Common Stock issuable upon the exercise of options which are not
exercisable within 60 days from the date hereof.
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PLAN OF DISTRIBUTION
The shares of common stock to which this prospectus pertains may be sold or
transferred for value by the Selling Stockholder, or by pledgees, donees,
transferees or other successors in interest to the Selling Stockholder, in one
or more transactions on the New York Stock Exchange, in negotiated transactions
or in a combination of such methods of sale, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at prices
otherwise negotiated. The Selling Stockholder may effect such transactions by
selling its shares of common stock to or through broker-dealers, and such
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Stockholder and/or the purchasers of
the shares of common stock for whom such broker-dealers may act as agent (which
compensation may be less than or in excess of customary commissions). The
Selling Stockholder and any broker-dealers that participate in the distribution
of the shares of common stock may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and any profit on the resale of the shares of common stock sold by them may
deemed to be underwriting discounts and commissions under the Securities Act.
Upon us being notified by the Selling Stockholder that any material
arrangement has been entered into with a broker or dealer for the sale of shares
of common stock offered by this prospectus through a block trade, special
offering, exchange or secondary distribution or a purchase by a broker or
dealer, we will file a supplemental prospectus, if required, pursuant to
Rule 424(b) under the Securities Act, disclosing (i) the name of the Selling
Stockholder and the participating broker-dealers, (ii) the number of shares of
Common Stock involved, (iii) the price at which such shares are being sold,
(iv) the commissions paid or the discounts or concessions allowed to such
broker-dealers, (v) where applicable, that such broker-dealers did not conduct
any investigation to verify the information set out or incorporated by reference
in the Prospectus, as supplemented, and (vi) other facts material to the
transactions.
In addition to any such number of shares of common stock sold hereunder, the
Selling Stockholder may, at the same time, sell any shares of common stock,
including the shares of common stock to which this prospectus pertains, owned by
him or her in compliance with all of the requirements of Rule 144 promulgated
under the Securities Act, regardless of whether such shares are covered by this
prospectus.
There is no assurance that the Selling Stockholder will sell any or all of
the shares of common stock offered hereby.
We will pay all expenses in connection with this offering other than
commissions and discounts of underwriters, dealers or agents. All selling and
other expenses incurred by the Selling Stockholder will be borne by such Selling
Stockholder.
We have notified the Selling Stockholder of the need to deliver a copy of
this prospectus in connection with any sale of the shares of common stock.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by
Morrison Cohen Singer & Weinstein, LLP, New York, New York, a partner of which
holds options to acquire shares of our common stock.
EXPERTS
The consolidated financial statements of Enzo Biochem, Inc. appearing in
Enzo Biochem, Inc.'s Annual Report (Form 10-K) for the year ended July 31, 1999,
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 are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Enzo Biochem, Inc., a New York corporation, incorporates by reference the
documents listed below into this Registration Statement on Form S-8. All
documents subsequently filed by Enzo Biochem, Inc. pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part thereof from the date of filing of such documents:
1. Annual Report on Form 10-K for the fiscal year ended July 31, 1999;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended October 31,
1999;
3. Definitive proxy statement filed with the SEC on November 29, 1999
pursuant to Regulation 14A under the Securities Exchange Act of 1934; and
4. The description of our common stock set forth in our Registration
Statement filed under Section 12 of the Securities Exchange Act of 1934
on Form 8-A on December 16, 1999, and any amendment or report filed for
the purpose of updating any such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation states the following:
"Article 8. The Corporation shall, to the fullest extent permitted by the
Business Corporation Law of the States of New York, indemnify any and all
persons whom it shall have power to indemnify from and against any and all of
the expenses, liabilities or other matters as provided under Articles of Seven
of the Business Corporation Law of the State of New York.
"Article 12. No director of the Corporation shall be liable to the
Corporation or its shareholders for damage 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 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."
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
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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.
"(c) The termination of any civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere, 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 1 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
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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 incase 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 of officer.
"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.
8
<PAGE>
"(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,
"(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 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 f this Article V to
the fullest extent permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
9
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
.1 4 Enzo Biochem, Inc. 1994 Stock Option Plan (incorporated herein by reference to Exhibit 4 to
the Registration Statement on Form S-8 (Registration No. 33-88826) filed with the
Commission on January 27, 1995).
<C> <S>
5.1 Opinion of Morrison Cohen Singer & Weinstein, LLP.
23.1 Consent of Morrison Cohen Singer & Weinstein, LLP (included in its Opinion filed as
Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Powers of Attorney (included on the signature page of this Registration Statement)
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) Rule 415 Offering.
(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 prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference 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.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
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
10
<PAGE>
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 in the initial bona fide offering thereof.
(h) Request For Acceleration of Effective Date or Filing of Registration
Statement on Form S-8.
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.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Farmingdale, State of New York, on this 27th day of
January, 2000.
<TABLE>
<S> <C> <C>
ENZO BIOCHEM, INC.
By: /s/ ELAZAR RABBANI
-----------------------------------------
Elazar Rabbani, Ph.D.
CHAIRMAN OF THE BOARD
</TABLE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Elazar Rabbani, with the power of substitution,
his or her attorney-in-fact, to sign any amendments to this Registration
Statement and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his or her
substitute, may do or choose to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
Chairman of the Board and
/s/ ELAZAR RABBANI, PH.D. Chief Executive Officer
------------------------------------------- (principal executive January 27, 2000
Elazar Rabbani officer)
Chief Operating Officer,
/s/ SHAHRAM K. RABBANI Treasurer, Secretary and
------------------------------------------- Director (principal January 27, 2000
Shahram K. Rabbani financial and accounting
officer)
/s/ BARRY W. WEINER
------------------------------------------- President and Director January 27, 2000
Barry W. Weiner
------------------------------------------- Director
John J. Delucca
------------------------------------------- Director
John B. Sias
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
NO. DESCRIPTION
- --------------------- -----------
<C> <S>
4.1 Enzo Biochem, Inc. 1994 Stock Option Plan (incorporated
herein by reference to Exhibit 4 to the Registration
Statement on Form S-8 (Registration No. 33-88826) filed
with the Commission on January 27, 1995).
5.1 Opinion of Morrison Cohen Singer & Weinstein, LLP.
23.1 Consent of Morrison Cohen Singer & Weinstein, LLP (included
in its Opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young, LLP.
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
13
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EXHIBIT 5.1
MORRISON COHEN SINGER & WEINSTEIN, LLP
750 Lexington Avenue
New York, New York 10022
Telephone: (212) 735-8600
Facsimile: (212) 735-8708
January 27, 2000
Enzo Biochem, Inc.
60 Executive Boulevard
Farmingdale, New York 11735
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
In our capacity as counsel to Enzo Biochem, Inc., a New York corporation
(the "Company"), we have been requested to render this opinion in connection
with a registration statement on Form S-8 (the "Registration Statement") being
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, covering an aggregate of 38,951 shares (the
"Shares") of common stock, $.01 par value per share (the "Common Stock"), of the
Company issuable upon the exercise of certain stock options (the "Options")
granted or to be granted under the Company's 1994 Stock Option Plan (the
"Plan").
In furnishing our opinion, we have examined the Certificate of
Incorporation, as amended, of the Company, and such other instruments and
documents as we have deemed relevant and necessary as the basis for our opinion
expressed herein. We have examined originals or certified, conformed, or
photostatic copies of all documents, the authenticity of which has been
established to our satisfaction. In all such examinations, we have assumed the
genuineness of all signatures on original and certified documents, and the
conformity to executed documents of all executed copies submitted to us as
conformed or photostatic copies.
Based upon and subject to the foregoing, we are of the opinion that the
Shares issuable upon exercise of the Options have been duly authorized and, when
paid for and issued in accordance with the terms of the Options, will be duly
and validly issued shares of Common Stock.
We hereby consent to use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ MORRISON COHEN SINGER & WEINSTEIN, LLP
Morrison Cohen Singer & Weinstein, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Post-effective Amendment No. 1 to Form S-8
No. 33-88826) pertaining to the Enzo Biochem, Inc. 1994 Stock Option Plan and to
the incorporation by reference therein of our report dated October 15, 1999,
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, 1999, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Melville, New York
January 25, 2000
