As filed with the Securities and Exchange Commission on June ___, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
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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 13-2866202
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
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., PRESIDENT
ENZO BIOCHEM, INC.
60 EXECUTIVE BOULEVARD
FARMINGDALE, NEW YORK 11735
(516) 755-5500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
--------------------------------
COPY TO:
ROBERT H. COHEN, ESQ.
BRYAN CAVE
245 PARK AVENUE
NEW YORK, NEW YORK 10167-0034
(212) 692-1800
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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/
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Amount
Shares Amount Maximum Maximum of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price Fee
- ---------- ---------- ------------- -------------- ------------
Common Stock,
par value $ .01 494,928 $11.125 $5,506,074 $1,898.65
_____________________________________
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(g), based on the average of the high and
low prices of the Registrant's Common Stock on June 12, 1995, as reported
by the American Stock Exchange.
(2) Pursuant to Rule 416, there are also being registered such additional
shares of Common Stock as may become issuable pursuant to anti-dilution
provisions of the warrants.
_____________________________________
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.
_____________________________________
Subject to Completion, Dated June , 1995
PROSPECTUS
494,928 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"), to whom
the Company had been indebted of up to an aggregate of 284,928 shares of Common
Stock, par value $ .01 per share ("Common Stock"), of Enzo, which shares were
issued to the Creditors in May 1995 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 $2,853,976 of indebtedness owed or to be owed
by the Company to the Creditors, which obligations have been satisfied through
the issuance of such Common Stock. This Prospectus also relates to the offering
by Granmill Properties Limited ("Granmill") and Stockton Group Nominees Inc.
("Stockton") of (i) an aggregate of 100,000 shares of Common Stock which shares
have been issued in private transactions pursuant to Regulation S promulgated
under the Act prior to the date hereof and (ii) an aggregate of 110,000 shares
of Common Stock which may be issued by the Company upon exercise of outstanding
Warrants issued to Granmill and Stockton in private transactions pursuant to
Regulation S promulgated under the Act prior to the date hereof. The Creditors,
Granmill and Stockton are sometimes referred to collectively 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. 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.
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The proceeds from the exercise of
the Warrants by Granmill and Stockton will be received by the Company. There
can be no assurance, however, that either
1
of Granmill or Stockton will exercise their respective Warrants. 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, except that Stockton
and Granmill has paid an aggregate of $9,000 of the expenses of this offering.
2
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 June 12 1995, the reported closing price of the Common Stock on the American
Stock Exchange was $11.00 per share.
The date of this Prospectus is ___________________, 1995
3
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Incorporation of Certain Information by Reference. . . . . . . . . . . . . . . 5
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pro Forma Financial Information. . . . . . . . . . . . . . . . . . . . . . . .10
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
The Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Selling Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4
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 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, 1994;
(b) The Registrant's Annual Report on Form 10-K/A for the fiscal year
ended July 31, 1994;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
October 31, 1994;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 31, 1995; and Form 10-Q/A for the quarter ended January 31,
1995;
5
(e) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
April 30, 1995;
(f) The Registrant's definitive Proxy Statement, dated December 2, 1994,
as filed with the Securities and Exchange Commission in connection
with the Registrant's Annual Meeting of Shareholders; and
(g) 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.
6
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, 1994 (fiscal 1994), approximately 23% of
the Company's operating revenues was derived from product sales and
approximately 77% was derived from clinical reference laboratory services. For
the fiscal years ended July 31, 1993 and 1992 (fiscal 1993 and fiscal 1992,
respectively), approximately 11% and 10%, respectively, of the Company's
operating revenues were derived from clinical reference laboratory services.
The Company's principal executive offices are located at 60 Executive
Boulevard, Farmingdale, New York 11735, and its telephone number is (516) 755-
5500.
RISK FACTORS
In evaluating the Company and its business, prospective purchasers of the
Shares offered hereby should consider carefully the following factors in
evaluating the Company and its operations:
LITIGATION WITH CALGENE, INC. In March 1993, the Company filed suit in the
United States District Court for the District of Delaware charging patent
infringement and acts of unfair competition against Calgene, Inc. and seeking a
declaratory judgment of invalidity concerning Calgene, Inc.'s antisense patent.
On February 9, 1994 the Company filed a second suit in the United States
District Court for the District of Delaware charging Calgene with infringement
of a second antisense patent owned by the Company. Calgene has filed a
counterclaim in the second Delaware action seeking a declaration that a third
patent belonging to the Company is invalid. The two Delaware actions have been
consolidated and were tried to the Court in April 1995. The parties are
awaiting the Court's decision. 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 subvert the Company's antisense patents by improperly using confidential
7
information to challenge them in the Patent Office. The Complaint further
charge that Hutchinson is infringing and inducing Calgene to infringe the
Company's antisense patents. 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
the Company and have the capability of developing products which compete
directly with the Company's products. Genetic engineering has undergone, and is
expected to continue to undergo, rapid and significant technological change.
New developments in recombinant DNA, monoclonal antibody and other
biotechnological processes are expected to continue at a rapid pace in both
industry and academia. Although the Company believes that its products will be
commercially viable, no assurance can be given that other developments will not
render the Company's products uneconomical or obsolete, or that the Company's
products can be marketed successfully.
SHARES ELIGIBLE FOR FUTURE SALE. Registration statements filed by the
Company with the Securities and Exchange Commission had been declared effective
with respect to significant amounts of the Company's Common Stock. Sales of
Common Stock pursuant to such registration statements may have an adverse effect
on the market price of the Common Stock.
UNCERTAINTY OF PRODUCT DEVELOPMENT. The products being pursued by the
Company are at various stages of development and clinical evaluations and may
require further technical development and investment to determine whether
commercial application is practicable. There can be no assurance that the
Company's efforts will result in products with valuable commercial applications.
UNCERTAINTY OF PATENT PROTECTION; PROPRIETARY TECHNOLOGY. The Company has
filed applications for United States and foreign patents covering certain
aspects of its technology, but there is no assurance that pending patents will
issue or as to the degree of protection which any issued patent might afford.
The Company also utilizes certain unpatented proprietary technology. There is
no assurance that others may not independently develop similar technology.
RETENTION OF KEY PERSONNEL. The specialized scientific nature of the
Company's business requires the Company to attract and retain personnel with a
wide variety of scientific capabilities. To a large extent, the Company's
success in developing proprietary technological products has been the result of
the effective efforts of the Company's internal scientific staff and its
experience and talent. Since its inception an insignificant number of
8
key employees have left the Company. The Company has elected not to pursue
the purchase of key man insurance on any of its officers. There can be no
assurance, however, that the Company will continue to attract and retain
personnel of high scientific caliber.
LAWS AND REGULATIONS. In order to manufacture and market therapeutic and
diagnostic products, prior clearance of regulatory agencies, in particular the
FDA and similar agencies in other countries, must be obtained. The Company has
an in-house regulatory department to assist in the preparation and filing of
documentation to expedite FDA approvals and patent issuances. The process of
obtaining FDA and corresponding foreign approvals is likely to be costly and
time consuming, and there can be no assurance that such approvals will be
granted. The process of obtaining approvals for noninvasive diagnostic products
is significantly less stringent than approvals for therapeutic products. The
extent of potentially adverse government regulations which might arise from
future legislation or administrative action cannot be predicted.
9
PRO FORMA (UNAUDITED) FINANCIAL INFORMATION
The following unaudited pro forma consolidated balance sheet gives effect
to (i) the issuance by the Company of an aggregate of 284,928 shares of Common
Stock to the Creditors primarily in consideration of an aggregate of $2,853,976
amount of indebtedness owed or owing by the Company to the Creditors and (ii)
the exercise in March 1995 of Warrants previously issued to Granmill and
Stockton resulting in the receipt by the Company of gross proceeds of $1,012,500
and the issuance of 50,000 shares of the Company's Common Stock to each of
Granmill and Stockton. The pro forma consolidated balance sheets assume such
issuances occurred as of July 31, 1994 and April 30, 1995, respectively. Such
pro forma information should be read in conjunction with the Company's audited
historical financial statements and related notes thereto, which are
incorporated by reference in this Prospectus.
ASSETS
July 31, 1994 April 30, 1995
------------------- --------------------------
(in thousands) (in thousands)
Actual Pro Forma Actual Pro Forma
------ --------- ------ ----------
Total current assets . . . . . . $ 25,749 $ 29,616 $ 31,879 $ 32,679
Other assets . . . . . . . . . . 39,294 39,294 51,977 51,977
-------- -------- -------- --------
Total assets . . . . . . . . . $ 65,043 $ 68,910 $ 83,856 $ 84,656
-------- -------- -------- --------
-------- -------- -------- --------
LIABILITIES AND STOCKHOLDERS' EQUITY
Total current
liabilities . . . . . . . . . . $ 8,597 $ 8,647 $ 6,734 4,730
Other liabilities. . . . . . . . 5,201 5,201 5,247 5,247
------- -------- ------- -------
Total liabilities. . . . . . . $13,798 $ 13,848 $11,981 $ 9,977
------- -------- ------- -------
------- -------- ------- -------
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;
19,822,200 (actual) at July 31,
1994; 20,207,128 (pro forma)
at July 31, 1994; 19,953,800
(actual) at April 30, 1995;
20,238,728 (pro forma)
at April 30, 1995. . . . . . 198 202 200 203
Additional paid-in capital. . . 71,753 75,566 72,860 75,661
Accumulated deficit . . . . . . (20,706) (20,706) (1,185) (1,185)
-------- -------- ------- -------
Total Stockholders' Equity. . 51,245 55,062 71,875 74,679
-------- -------- ------- -------
$65,043 $ 68,910 $83,856 $ 84,656
-------- -------- ------- -------
-------- -------- ------- -------
USE OF PROCEEDS
None of the proceeds from the sale of the shares by the Selling
Stockholders will be received by the Company. The proceeds from the March 1995
exercise of the warrants previously exercised by Granmill and Stockton will be
used for working capital. The proceeds, if any, received by the Company upon
exercise of Warrants by Granmill and Stockton will be used for working capital
purposes.
THE OFFERING
The Company hereby offers an aggregate of up to 110,000 shares of its
Common Stock by Granmill and Stockton upon the exercise of outstanding warrants
issued to them by the Company. In August 1993 the Company issued, pursuant to
Regulation S of the Act, to each of Granmill and Stockton, 450,000 shares of the
Company's Common Stock in consideration received from each party of $3,600,000.
In connection with such purchases the Company granted to each of Granmill and
Stockton an aggregate of 125,000 warrants to purchase shares of the Company's
Common Stock at exercise prices ranging from $8.00 to $12.00. In September 1993
each of Granmill and Stockton exercised a portion of such warrants to purchase
20,000 shares of Common Stock of the Company. In March 1995 each of Granmill
and Stockton exercised an additional portion of such warrants to purchase 50,000
shares of the Company's Common Stock. The remaining 55,000 warrants held by
each of Granmill and Stockton are exercisable with respect to (i) 25,000 shares
at an exercise price of $8.00 per share during the period September 3, 1994
through September 2, 1999; (ii) 22,500 shares at an exercise price of $9.60 per
share during the period September 3, 1994 through September 2, 1999; (iii) 5,000
shares at an exercise price of $8.00 per share during the period March 2, 1996
through September 2, 1998; and (iv) 2,500 shares at an exercise price of $9.60
per share during the period March 2, 1996 through September 2, 1998. If all of
the outstanding 110,000 warrants are exercised, of which there can be no
assurance, the Company will receive gross proceeds of $960,000.
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 284,928 shares of Common Stock being
offered by them hereby in May 1995 primarily in exchange for the cancellation of
an aggregate of $2,853,976 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 primarily in cancellation of
indebtedness owed or owing to each Creditor incurred in connection with legal
services performed or to be performed for the Company. The number
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of shares of Common Stock issued in exchange for the indebtedness was negotiated
between the Company and each of the Creditors. All of the indebtedness owing to
the Creditors constituted unsecured obligations of the Company owing in payment
of outstanding professional fees. Each of Granmill and Stockton, two European
investors, had previously purchased 450,000 shares of Common Stock from the
Company in August 1993 for which each paid a purchase price of $3,600,000. In
connection with such purchases, each of Granmill and Stockton were issued an
aggregate of 125,000 warrants to purchase shares of Common Stock at exercise
prices ranging from $8.00 to $12.00, which warrants are exercisable at various
dates commencing on the date of issuance. In September 1993, each of Granmill
and Stockton exercised warrants to purchase 20,000 shares of Common Stock at an
aggregate exercise price each of $160,000. In March 1995, each of Granmill and
Stockton exercised warrants to purchase 50,000 shares of Common Stock at an
aggregate price each of $506,250. 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)
- ------------------ ------------ -------- ------- ------------
Anderson Kill Olick
& Oshinsky, P.C. $1,102,955 5,000(2) 110,296 5,000(2)
Lieberman & Nowak $1,000,000 2,590 100,000 2,590
Bachner Tally Polevoy &
Misher $215,453 0 21,546 0
Serle Mosoff $140,568 0 14,200 0
Vossius & Partner $100,000 0 9,639 0
Graubard Mollen
Pomerantz & Shapiro $90,000 9,000 9,000 9,000
Stadtmauer, Bailkin LLP $70,000 0 7,000 0
John J. Santalone $70,000 1,466 6,747 1,466
Jackson, Lewis, Schnitzler
& Krupman $35,000 0 3,500 0
Wilson Elser Moskantz &
Dicker $30,000 0 3,000 0
Granmill Properties
Limited 0 851,500(3) 50,000 851,500(3)
Stockton Group
Nominees Inc. 0 97,500(3) 50,000 97,500(3)
_______________________
(1) Assumes that all Shares offered by this Prospectus are sold.
12
(2) Includes 2,500 shares underlying options which are currently exercisable or
which may be exercisable within 60 days.
(3) Includes 47,500 shares of Common Stock issuable to each of Granmill and
Stockton upon exercise of warrants which are currently exercisable. Does
not include 7,500 shares of Common Stock issuable to each of Granmill and
Stockton upon exercise of warrants which are not currently exercisable or
exercisable within 60 days of the date hereof. The Company has been
advised that Granmill and Stockton may be deemed a group under the
Securities Exchange Act of 1934. See "The Offering", above.
13
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 schedules of Enzo Biochem,
Inc. appearing in Enzo Biochem, Inc.'s Annual Report (Form 10-K) for the year
ended July 31, 1994, 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 schedules are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
14
LEGAL MATTERS
Certain legal matters relating to the Shares will be passed upon for
the Company by Bryan Cave, 245 Park Avenue, New York, New York 10167-0034.
Certain members of Bryan Cave are beneficial and/or record owners of securities
of the Company.
15
ENZO BIOCHEM, INC.
494,928 Shares
PROSPECTUS
, 1995
16
PART 11
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
S.E.C. Registration. . . . . . . . . . . . $ 1,899
Legal Fees and Expenses. . . . . . . . . . 30,000
Accountants' Fees and Expenses . . . . . . 5,000
American Stock Exchange Listing. . . . . . 17,500
Miscellaneous. . . . . . . . . . . . . . . 1,000
--------
Total. . . . . . . . . . . . . . . . . . . $55,399
---------
---------
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
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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 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 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
officer, or
(B) by the shareholders of the Corporation upon a finding that
the director or officer has met such standard of conduct.
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(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 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
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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,
(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
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dishonesty, and such acts were material to such action or proceeding, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
Section 7. RETROACTIVITY. The right to indemnification conferred by
this Article V shall be retroactive to events occurring prior to the adoption of
this Article V to the fullest extent permitted by law.
Article 12 of the Registrant's Certificate of Incorporation provides
as follows:
"12. No director of the Corporation shall be liable to the
Corporation or its shareholders for damages for any breach
of duty in such capacity, provided that nothing contained in
this Article shall eliminate or limit the liability of a
director (i) if a judgment or other final adjudication
adverse to him establishes that his acts or omissions were
in bad faith or involved intentional misconduct or a knowing
violation of law, or that he personally gained in fact a
financial profit or other advantage to which he was not
legally entitled, or that his acts violated Section 719 of
the New York Business Corporation Law or (ii) for any act or
omission prior to July 8, 1988."
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Item 16. EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 Offshore Securities Subscription Agreement between the Registrant
and Granmill Properties Limited dated August 18, 1993 previously
filed as Exhibit 4.1 to the Registrant's Registration Statement
on Form S-3 (File No. 33-68542) and incorporated herein by
reference.
4.2 Offshore Securities Subscription Agreement between the Registrant
and Stockton Group Nominees Inc. dated August 18, 1993 previously
filed as Exhibit 4.2 to the Registrant's Registration Statement
on Form S-3 (File No. 33-68542) and incorporated herein by
reference.
5.1 Opinion of Bryan Cave.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bryan Cave (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
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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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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 12th day of June, 1995.
ENZO BIOCHEM, INC.
By: /s/ Elazar Rabbani
-----------------------------------
Elazar Rabbani, Ph.D, President
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 President and Chairman June 12, 1995
- -------------------------
Elazar Rabbani (Principal Executive
Officer)
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/s/ Shahram K. Rabbani Executive Vice President, June 12, 1995
- ----------------------
Shahram K. Rabbani Treasurer and Director
(Principal Financial and
Accounting Officer)
/s/ Barry W. Weiner Executive Vice President, June 12, 1995
- ----------------------
Barry W. Weiner Secretary and Director
Director , 1995
- ----------------------
John B. Sias
Director , 1995
- -----------------------
John J. Delucca
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EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
5.1 Opinion of Bryan Cave
23.1 Consent of Ernst & Young LLP
23.2 Consent of Bryan Cave
(included in Exhibit 5.1)