As Filed with the Securities and Exchange Commission on March 31, 2005
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------------------
FORM S-8
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 (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
60 EXECUTIVE BOULEVARD
FARMINGDALE, NEW YORK 11735
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
ENZO BIOCHEM, INC. 2005 EQUITY COMPENSATION INCENTIVE PLAN
ENZO BIOCHEM, INC. 1999 STOCK OPTION PLAN
ENZO BIOCHEM, INC. 1994 STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
BARRY W. WEINER
Enzo Biochem, Inc.
60 Executive Boulevard
Farmingdale, NY 11735
(631) 755-5500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copy to:
Robert H. Cohen, Esq.
Greenberg Traurig, LLP
200 Park Avenue
New York, NY 10166
(212) 801-9200 (Phone)
(212) 801-6400 (Fax)
CALCULATION OF REGISTRATION FEE
============================== ==================== ====================== ===================== ====================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered(1)(2) Offering Price Per Aggregate Registration Fee
Share Offering Price
============================== ==================== ====================== ===================== ====================
Common Stock, 1,000,000(3) $14.56(4) $14,560,000 $1,714.00
par value $0.01 per share
============================== ==================== ====================== ===================== ====================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover such
indeterminate number of additional shares as may be issued to prevent
dilution resulting from stock splits, stock dividends, or similar
transactions.
(2) Pursuant to Rule 429 of the Securities Act, the prospectus contained herein
also relates to (i) 1,154,731 shares of common stock previously registered
on Form S-8, Registration No. 333-87153, and (ii) 1,157,625 shares of
common stock previously registered on Form S-8, Registration No. 333-89308,
in each case issuable upon exercise of options granted or available to be
granted under the Enzo Biochem, Inc. 1999 Stock Option Plan, and 1,336,745
shares of common stock previously registered on Form S-8, Registration No.
33-88826, issued or issuable upon exercise of options granted or available
to be granted under the Enzo Biochem, Inc. 1994 Stock Option Plan.
(3) Represents shares issuable upon the exercise of stock options and
restricted stock awards granted or available to be granted under the Enzo
Biochem, Inc. 2005 Equity Compensation Incentive Plan.
(4) Estimated solely for the purpose of determining the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act, based on
the average of the high and low prices of the Company's common stock on the
New York Stock Exchange on March 29, 2005.
AS PERMITTED BY RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
PROSPECTUS FILED AS PART OF THIS REGISTRATION STATEMENT ON FORM S-8 IS A
COMBINED RESALE PROSPECTUS WHICH SHALL BE DEEMED A POST-EFFECTIVE AMENDMENT TO
THE REGISTRANT'S REGISTRATION STATEMENTS ON FORM S-8, REGISTRATION NOS.
33-88826, 333-87153 AND 333-89308.
EXPLANATORY NOTES:
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), to register shares issuable pursuant to the Enzo Biochem,
Inc. 2005 Equity Compensation Incentive Plan (the "2005 Plan") and to file a
prospectus (prepared in accordance with the requirements of Part I of Form S-3
and pursuant to General Instruction C of Form S-8) to be used for reoffers and
resales of common stock acquired by persons who may be deemed "affiliates" of
Enzo Biochem, Inc., as that term is defined in Rule 405 under the Securities
Act, upon the exercise of stock options or receipt of stock awards granted or
available to be granted under the 2005 Plan, upon the exercise of stock options
granted or available to be granted under the Enzo Biochem, Inc. 1999 Stock
Option Plan (the "1999 Plan") or upon the exercise of stock options granted or
available to be granted under the Enzo Biochem, Inc. 1994 Stock Option Plan (the
"1994 Plan").
On January 27, 1995, the registrant filed a Registration Statement on Form S-8
(Registration No. 33-88826) for purposes of effecting the registration under the
Securities Act of 950,000 shares of common stock issuable upon exercise of stock
options issued or issuable under the 1994 Plan. As a result of 5% stock
dividends issued in each of the registrant's fiscal years ended July 31, 1995,
1996, 1998 and 2001 to 2004, the 950,000 shares became 1,336,745 shares of
common stock.
On September 15, 1999, the registrant filed a Registration Statement on Form S-8
(Registration No. 333-87153) for purposes of effecting the registration under
the Securities Act of 950,000 shares of common sock issuable upon exercise of
stock options issued or issuable under the 1999 Plan. As a result of 5% stock
dividends issued in each of the registrant's fiscal years ended July 31, 2001 to
2004, the 950,000 shares became 1,154,731 shares of common stock.
On May 29, 2002, the registrant filed a Registration Statement on Form S-8
(Registration No. 333-89308) for purpose of effecting the registration under the
Securities Act of 1,000,000 shares of common stock issuable upon exercise of
stock options issued or issuable pursuant to an amendment to the 1999 Plan. As a
result of 5% stock dividends issued in each of the registrant's fiscal years
ended July 31, 2002 to 2004, the 1,000,000 shares became 1,157,625 share of
common stock.
As permitted by Rule 429 under the Securities Act of 1933, as amended, the
prospectus filed as part of this registration statement on Form S-8 is a
combined resale prospectus which shall be deemed a post-effective amendment to
the registrant's Registration Statements on Form S-8, Registration Nos.
33-88826, 333-87153 and 333-89308.
The documents containing information specified by Part I of this Registration
Statement will be sent or given to holders of options or restricted stock awards
granted under the 2005 Plan, as specified in Rule 428(b)(1) promulgated by the
Securities and Exchange Commission under the Securities Act. Such document(s)
are not required to be filed with the SEC but constitute (along with the
documents incorporated by reference into this Registration Statement pursuant to
Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PROSPECTUS
ENZO BIOCHEM, INC.
4,649,101 SHARES OF COMMON STOCK
This prospectus relates to the reoffer and resale of up to 4,649,101
shares of our common stock by certain selling stockholders who may be considered
our "affiliates." These selling stockholders have or may acquire these shares
upon the exercise of stock options or pursuant to restricted stock awards
granted or available to be granted under our Enzo Biochem, Inc. 2005 Equity
Compensation Incentive Plan, upon the exercise of stock options granted or
available to be granted under our Enzo Biochem, Inc. 1999 Stock Option Plan, or
upon the exercise of stock options granted or available to be granted under our
Enzo Biochem, Inc. 1994 Stock Option Plan.
Shares covered by this prospectus may be offered and sold from time to
time by or on behalf of the selling stockholders through brokers on the New York
Stock Exchange or otherwise at the prices prevailing at the time of such sales
or at prices otherwise negotiated. No specified brokers or dealers have been
designated by the selling stockholders and no agreement has been entered into in
respect of brokerage commissions or for the exclusive or coordinated sale of any
securities which may be offered pursuant to this prospectus. The net proceeds to
the selling stockholders will be the proceeds received by them upon such sales,
less brokerage commissions, if any. We will not receive any proceeds from these
sales. We will bear all expenses incurred in registering the shares, but all
commissions and other selling expenses incurred by each selling stockholder will
be borne by that stockholder.
Our common stock is presently traded on the New York Stock Exchange
under the symbol "ENZ." The closing price per share of our common stock as
reported on the New York Stock Exchange Composite Transactions on March 29, 2005
was $14.42.
--------------------------
INVESTING IN OUR COMMON STOCK INVOLVES MATERIAL RISKS. SEE "RISK
FACTORS" BEGINNING ON PAGE 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is March 31, 2005.
1
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM
THAT CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS IS NOT AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, SHARES OF COMMON STOCK IN ANY JURISDICTION
WHERE OFFERS AND SALES WOULD BE UNLAWFUL. THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS COMPLETE AND ACCURATE ONLY AS OF THE DATE ON THE FRONT COVER OF
THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS OR OF ANY
SALE OF THE SHARES OF COMMON STOCK.
--------------------------
TABLE OF CONTENTS
PAGE
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SUMMARY........................................................................3
RISK FACTORS...................................................................4
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS..............................9
USE OF PROCEEDS...............................................................10
SELLING STOCKHOLDERS..........................................................11
PLAN OF DISTRIBUTION..........................................................14
LEGAL MATTERS.................................................................15
EXPERTS.......................................................................15
WHERE YOU CAN FIND MORE INFORMATION...........................................15
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................15
--------------------------
WE HAVE NOT TAKEN ANY ACTION TO PERMIT A PUBLIC OFFERING OF OUR SHARES
OF COMMON STOCK OUTSIDE OF THE UNITED STATES OR TO PERMIT THE POSSESSION OR
DISTRIBUTION OF THIS PROSPECTUS OUTSIDE OF THE UNITED STATES. PERSONS OUTSIDE OF
THE UNITED STATES WHO CAME INTO POSSESSION OF THIS PROSPECTUS MUST INFORM
THEMSELVES ABOUT AND OBSERVE ANY RESTRICTIONS RELATING TO THE OFFERING OF THE
SHARES OF COMMON STOCK AND THE DISTRIBUTION OF THIS PROSPECTUS OUTSIDE OF THE
UNITED STATES.
2
SUMMARY
YOU SHOULD READ THE FOLLOWING SUMMARY TOGETHER WITH THE MORE DETAILED
INFORMATION CONTAINED ELSEWHERE IN THIS PROSPECTUS, INCLUDING THE SECTION TITLED
"RISK FACTORS," REGARDING OUR COMPANY AND THE COMMON STOCK BEING SOLD IN THIS
OFFERING.
THE COMPANY
We are a leading life sciences and biotechnology company focused on
harnessing genetic processes to develop research tools, diagnostics and
therapeutics. We also provide diagnostic services to the medical community.
Since our formation in 1976, we have concentrated on developing enabling
technologies for detecting and identifying genes and for modifying gene
expression. These technologies are generally applicable to the diagnosis of
infectious and other diseases and form the basis for a portfolio of over 300
products marketed to the biomedical and pharmaceutical research markets. We are
further using these technologies as platforms for our planned entry into the
clinical diagnostics market. In addition, our work in gene analysis has led to
the development of significant therapeutic product candidates, several of which
are currently in clinical trials, and several are in preclinical studies. In the
course of our research and development activities, we have built what we believe
is a significant patent position (comprised of 42 issued U.S. patents, over 190
issued foreign patents and various pending applications worldwide) around our
core technologies.
Our business activities are conducted through our three wholly owned
subsidiaries--Enzo Life Sciences, Inc., Enzo Therapeutics, Inc., and Enzo
Clinical Labs, Inc. These activities are: (1) research and development,
manufacturing and marketing of biomedical research products and tools through
Enzo Life Sciences and research and development of therapeutic products through
Enzo Therapeutics, and (2) the operation of a clinical reference laboratory
through Enzo Clinical Labs. Our primary sources of revenue have historically
been from sales of research products utilized in life science research and from
the clinical laboratory services provided to the healthcare community.
Our principal executive offices are located at 60 Executive Boulevard,
Farmingdale, New York 11735, and our telephone number is (631) 755-5500.
3
RISK FACTORS
AN INVESTMENT IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU
SHOULD CAREFULLY CONSIDER THE FOLLOWING MATERIAL RISKS, TOGETHER WITH THE OTHER
INFORMATION CONTAINED IN THIS PROSPECTUS, BEFORE YOU DECIDE TO BUY OUR COMMON
STOCK. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR BUSINESS, RESULTS OF
OPERATIONS AND FINANCIAL CONDITION WOULD LIKELY SUFFER. IN THESE CIRCUMSTANCES,
THE MARKET PRICE OF OUR COMMON STOCK COULD DECLINE, AND YOU MAY LOSE ALL OR PART
OF YOUR INVESTMENT.
RISKS RELATING TO OUR COMPANY AND OUR INDUSTRIES
WE FACE INTENSE COMPETITION WHICH COULD CAUSE US TO DECREASE THE PRICES FOR OUR
PRODUCTS OR SERVICES OR RENDER OUR PRODUCTS UNECONOMICAL OR OBSOLETE, ANY OF
WHICH COULD REDUCE OUR REVENUES AND LIMIT OUR GROWTH.
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. Many of these companies are performing research in the same areas as
we are.
Our clinical laboratory business is highly fragmented and intensely
competitive, and we compete with numerous national and local companies. Some of
these entities are larger than we are and have greater resources than we do. 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.
These competitive conditions could, among other things:
o Require us to reduce our prices to retain market share;
o Require us to increase our marketing efforts which could reduce
our profit margins;
o Increase our cost of labor to attract qualified laboratory
personnel;
o Render our biotechnology products uneconomical or obsolete; or
o Reduce our revenue.
WE ARE REQUIRED TO EXPEND SIGNIFICANT RESOURCES FOR RESEARCH AND DEVELOPMENT FOR
OUR PRODUCTS IN DEVELOPMENT AND THESE PRODUCTS MAY NOT BE DEVELOPED
SUCCESSFULLY. FAILURE TO SUCCESSFULLY DEVELOP THESE PRODUCTS MAY PREVENT US FROM
EARNING A RETURN ON OUR RESEARCH AND DEVELOPMENT EXPENDITURES.
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. Even if we
spend substantial amounts on research and development, our potential products
may not be developed successfully. If our product candidates on which we have
expended significant amounts for research and development are not
commercialized, we will not earn a return on our research and development
expenditures, which may harm our business.
PROTECTING OUR PROPRIETARY RIGHTS IS DIFFICULT AND COSTLY. IF WE FAIL TO
ADEQUATELY PROTECT OR ENFORCE OUR PROPRIETARY RIGHTS, WE COULD LOSE REVENUE.
Our success depends in large part on our ability to obtain maintain and
enforce our patents. Our ability to commercialize any product successfully will
largely depend on our ability to obtain and maintain patents of sufficient scope
to prevent third parties from developing similar or competitive products. In the
absence of patent protection, competitors may impact our business by developing
and marketing substantially equivalent products and technology.
4
Patent disputes are frequent and can preclude the commercialization of
products. We have in the past been, are currently, and may in the future be,
involved in material patent litigation, such as the matters discussed under
"Part I--Item 3. Legal Proceedings" in our Annual Report on Form 10-K for the
year ended July 31, 2004, which is incorporated by reference in this prospectus.
Patent litigation is time-consuming and costly in its own right and could
subject us to significant liabilities to third parties. In addition, an adverse
decision could force us to either obtain third-party licenses at a material cost
or cease using the technology or product in dispute.
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.
LAWSUITS IN THE BIOTECHNOLOGY INDUSTRY ARE NOT UNCOMMON. IF WE BECOME INVOLVED
IN ANY SIGNIFICANT LITIGATION, WE WOULD SUFFER AS A RESULT OF THE DIVERSION OF
OUR MANAGEMENT'S ATTENTION, THE EXPENSE OF LITIGATION AND ANY JUDGMENTS AGAINST
US.
In addition to intellectual property litigation, other substantial,
complex or extended litigation could result in large expenditures by us and
distraction of our management. For example, lawsuits by employees, stockholders,
collaborators or distributors could be very costly and substantially disrupt our
business. Disputes from time to time with companies or individuals are not
uncommon in the biotechnology industry, and we cannot assure you that we will
always be able to resolve them out of court.
WE MAY BE UNABLE TO OBTAIN OR MAINTAIN REGULATORY APPROVALS FOR OUR PRODUCTS
WHICH COULD REDUCE OUR REVENUE OR PREVENT US FROM EARNING A RETURN ON OUR
RESEARCH AND DEVELOPMENT EXPENDITURES.
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. 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.
We cannot be sure that we can obtain necessary regulatory approvals on
a timely basis, if at all, for any of the products we are developing or
manufacturing or that we can maintain necessary regulatory approvals for our
existing products, and all of the following could have a material adverse effect
on our business:
o Significant delays in obtaining or failing to obtain required
approvals.
o Loss of, or changes to, previously obtained approvals.
o Failure to comply with existing or future regulatory
requirements.
o Changes to manufacturing processes, manufacturing process
standards or Good Manufacturing Practices following approval or
changing interpretations of these factors.
5
OUR CLINICAL LABORATORY BUSINESS IS SUBJECT TO EXTENSIVE GOVERNMENT REGULATION
AND OUR LOSS OF ANY REQUIRED CERTIFICATIONS OR LICENSES COULD REQUIRE US TO
CEASE OPERATING THIS PART OF OUR BUSINESS, WHICH WOULD REDUCE OUR REVENUE AND
INJURE OUR REPUTATION.
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 failure of our clinical laboratory to obtain
or maintain such certifications or licenses under these laws could interrupt our
ability to operate our clinical laboratory business and injure our reputation.
REIMBURSEMENTS FROM THIRD-PARTY PAYORS, UPON WHICH OUR CLINICAL LABORATORY
BUSINESS IS DEPENDENT, ARE SUBJECT TO INCONSISTENT RATES AND COVERAGE AND
LEGISLATIVE REFORM THAT ARE BEYOND OUR CONTROL. THIS INCONSISTENCY AND ANY
REFORM THAT DECREASES COVERAGE AND RATES COULD REDUCE OUR EARNINGS AND HARM OUR
BUSINESS.
Our clinical laboratory business is primarily dependent upon
reimbursement from third-party payors, such as Medicare (which principally
serves patients 65 and older) and Medicaid (which principally serves indigent
patients) and insurers. We are subject to variances in reimbursement rates among
different third-party payors, as well as constant renegotiation of reimbursement
rates. We also are subject to audit by Medicare and Medicaid which can result in
the return of payments made to us under these programs. These variances, rates
and audit results could reduce our margins and thus our earnings.
The health care industry is undergoing significant change as
third-party payors 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. Changes that decrease
reimbursement rates or coverage, or increase administrative burdens on billing
third-party payors could reduce our revenues and increase our expenses.
THE CONTINUED GROWTH OF MANAGED CARE MAY REDUCE OUR REVENUES AND REDUCE OUR NET
EARNINGS.
The number of individuals covered under managed care contracts or other
similar arrangements has grown over the past several years and may continue to
grow in the future. In addition, Medicare and Medicaid and other government
healthcare programs may continue to shift to managed care. Entities providing
managed care coverage have reduced payments for medical services, including
clinical laboratory services, in numerous ways such as entering into
arrangements under which payments to a service provider are capitated, limiting
testing to specified procedures, denying payment for services performed without
prior authorization and refusing to increase fees for specified services. These
trends reduce our revenues and limit our ability to pass cost increases to our
customers. Also, if these or other managed care organizations do not select us
as a participating provider, we may lose some or all of that business, which
could have an adverse effect on our business, financial condition and results of
operations.
COMPLIANCE WITH MEDICARE ADMINISTRATIVE POLICIES, INCLUDING THOSE PERTAINING TO
CERTAIN AUTOMATED BLOOD CHEMISTRY PROFILES, MAY REDUCE THE REIMBURSEMENTS WE
RECEIVE.
Containment of health care costs, including reimbursement for clinical
laboratory services, has been a focus of ongoing governmental activity. In 1984,
Congress established the Medicare fee schedule for clinical laboratory services,
which is applicable to patients covered under Part B of the Medicare program as
well as patients receiving Medicaid. Clinical laboratories must bill Medicare
directly for the services provided to Medicare beneficiaries and may only
collect the amounts permitted under this fee schedule. Reimbursement to clinical
laboratories under the Medicare Fee Schedule has been steadily declining since
its inception. Furthermore, Medicare has mandated use of the Physicians Current
Procedural Terminology, or CPT, for coding of laboratory services which has
altered the way we bill these programs for some of our services, thereby
reducing the reimbursement that we receive.
In March 1996, HCFA (now, the Center for Medicare and Medicaid Services
or CMS) implemented changes in the policies used to administer Medicare payments
to clinical laboratories for the most frequently performed automated blood
chemistry profiles. Among other things, the changes established a consistent
standard
6
nationwide for the content of the automated chemistry profiles. Another change
requires laboratories performing certain automated blood chemistry profiles to
obtain and provide documentation of the medical necessity of tests included in
the profiles for each Medicare beneficiary. Reimbursements have been reduced as
a result of this change. Because a significant portion of our costs is fixed,
these Medicare reimbursement reductions and changes have a direct adverse effect
on our net earnings and cash flows.
WE DEPEND ON KEY EMPLOYEES IN A COMPETITIVE MARKET FOR SKILLED PERSONNEL, AND
THE LOSS OF THE SERVICES OF ANY OF OUR KEY EMPLOYEES, INCLUDING OUR SENIOR
MANAGEMENT, COULD DELAY OUR RESEARCH AND DEVELOPMENT PROGRAMS AND WOULD
ADVERSELY AFFECT OUR ABILITY TO DEVELOP OUR BUSINESS.
The specialized scientific nature of our business requires us to
attract and retain personnel with a wide variety of scientific capabilities.
There is intense competition in the biotechnology industry for qualified
scientific and technical personnel. 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. If we lose the services of our
management and scientific personnel and fail to recruit other scientific and
technical personnel, our research and development programs could be materially
and adversely delayed.
NEGATIVE PUBLICITY AND NEWS COVERAGE ABOUT US OR THE CLINICAL LABORATORY MAY
HARM OUR BUSINESS AND OPERATING RESULTS.
In the past, the clinical laboratory industry has received negative
publicity. This publicity has led to increased legislation, regulation, and
review of industry practices. These factors may adversely affect our ability to
market our services, require us to change our services and increase the
regulatory burdens under which we operate, further increasing the costs of doing
business and adversely affecting our operating results.
OUR FUTURE SUCCESS WILL DEPEND IN PART UPON OUR ABILITY TO ENHANCE EXISTING
PRODUCTS AND TO DEVELOP AND INTRODUCE NEW PRODUCTS.
The market for our products is characterized by rapidly changing
technology, evolving industry standards and new product introductions, which may
make our existing products obsolete. Our future success will depend in part upon
our ability to enhance existing products and to develop and introduce new
products.
The development of new or enhanced products is a complex and uncertain
process requiring the accurate anticipation of technological and market trends
as well as precise technological execution. In addition, the successful
development of new products will depend on the development of new technologies.
We will be required to undertake time-consuming and costly development
activities and to seek regulatory approval for these new products. We may
experience difficulties that could delay or prevent the successful development,
introduction and marketing of these new products. Regulatory clearance or
approval of any new products may not be granted by the FDA or foreign regulatory
authorities on a timely basis, or at all, and the new products may not be
successfully commercialized.
OUR INABILITY TO CARRY OUT OUR CERTAIN OF OUR MARKETING AND SALES PLANS MAY MAKE
IT DIFFICULT FOR US TO GROW OR MAINTAIN OUR BUSINESS.
During fiscal 2004, Enzo Life Sciences continued to implement an
aggressive marketing program designed to more directly service its end users,
while simultaneously positioning us for product line expansion. The program
involves continued increases in the direct field sales force, a comprehensive
advertising campaign, increased attendance at top industry trade meetings, and
publications in leading scientific journals, as well as the development of a new
interactive web site. In addition to our direct sales, we distribute our
research products through leading producers of gene analysis formats and other
life sciences companies. If we are unable to successfully implement these
programs, we may be unable to grow and our business could suffer.
7
BECAUSE OF COMPETITIVE PRESSURES AND THE COMPLEXITY AND EXPENSE OF THE BILLING
PROCESS IN OUR CLINICAL LABORATORY BUSINESS, WE MUST OBTAIN NEW CUSTOMERS WHILE
MAINTAINING EXISTING CUSTOMERS TO GROW OUR BUSINESS.
Intense competition in the clinical laboratory business, increasing
administrative burdens upon the reimbursement process and reduced coverage and
payments by insurers make it necessary for us to increase our volume of
laboratory services. To do so, we must obtain new customers while retaining
existing customers. Our failure to attract new customers or the loss of existing
customers or a reduction in business from those customers could significantly
reduce our revenues and impede our ability to grow.
RISKS RELATING TO OUR COMMON STOCK
OUR STOCK PRICE IS VOLATILE, WHICH COULD RESULT IN SUBSTANTIAL LOSSES FOR
INVESTORS.
Our common stock is quoted on the New York Stock Exchange, and there
has been substantial volatility in the market price of our common stock. The
trading price of our common stock has been, and is likely to continue to be,
subject to significant fluctuations due to a variety of factors, including:
o fluctuations in our quarterly operating and earnings per share results;
o the gain or loss of significant contracts;
o loss of key personnel;
o announcements of technological innovations or new products by us or our
competitors;
o delays in the development and introduction of new products;
o legislative or regulatory changes;
o general trends in the industry;
o recommendations and/or changes in estimates by equity and market
research analysts;
o biological or medical discoveries;
o disputes and/or developments concerning intellectual property,
including patents and litigation matters;
o public concern as to the safety of new technologies;
o sales of common stock of existing holders;
o securities class action or other litigation;
o developments in our relationships with current or future customers and
suppliers; and
o general economic conditions, both in the United States and abroad.
In addition, the stock market in general has experienced extreme price
and volume fluctuations that have affected the market price of our common stock,
as well as the stock of many companies in our industries. Often, price
fluctuations are unrelated to operating performance of the specific companies
whose stock is affected.
In the past, following periods of volatility in the market price of a
company's stock, securities class action litigation has occurred against the
issuing company. If we were subject to this type of litigation in the future, we
could incur substantial costs and a diversion of our management's attention and
resources, each of which could have a material adverse effect on our revenue and
earnings. Any adverse determination in this type of litigation could also
subject us to significant liabilities.
SALES OF A SUBSTANTIAL NUMBER OF SHARES OF COMMON STOCK IN THE PUBLIC MARKET
FOLLOWING THIS OFFERING COULD ADVERSELY AFFECT THE MARKET PRICE FOR OUR COMMON
STOCK.
Registration statements filed by us with the SEC have been declared
effective with respect to significant amounts of our common stock. Sales of
common stock pursuant to such registration statements may have an adverse effect
on the market price of our common stock.
BECAUSE WE DO NOT INTEND TO PAY CASH DIVIDENDS ON OUR COMMON STOCK, AN INVESTOR
IN OUR COMMON STOCK WILL BENEFIT ONLY IF IT APPRECIATES IN VALUE.
We currently intend to retain our future earnings, if any, to finance
the expansion of our business and do not expect to pay any cash dividends on our
common stock in the foreseeable future. As a result, the success of an
investment in our common stock will depend entirely upon any future
appreciation. There is no guarantee that our common stock will appreciate in
value or even maintain the price at which an investor purchased her shares.
8
IT MAY BE DIFFICULT FOR A THIRD PARTY TO ACQUIRE US, WHICH COULD INHIBIT
STOCKHOLDERS FROM REALIZING A PREMIUM ON THEIR STOCK PRICE.
We are subject to the New York anti-takeover laws regulating corporate
takeovers. These anti-takeover laws prohibit certain business combinations
between a New York corporation and any "interested shareholder" (generally, the
beneficial owner of 20% or more of the corporation's voting shares) for five
years following the time that the shareholder became an interested shareholder,
unless the corporation's board of directors approved the transaction prior to
the interested shareholder becoming interested.
Our certificate of incorporation, as amended, and by-laws contain
provisions that could have the effect of delaying, deferring or preventing a
change in control of us that stockholders may consider favorable or beneficial.
These provisions could discourage proxy contests and make it more difficult for
stockholders to elect directors and take other corporate actions. These
provisions could also limit the price that investors might be willing to pay in
the future for shares of our common stock. These provisions include:
o a staggered board of directors, so that it would take three successive
annual meetings to replace all directors; and
o advance notice requirements for the submission by stockholders of
nominations for election to the board of directors and for proposing
matters that can be acted upon by stockholders at a meeting.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements" as defined in the
Private Securities Litigation Reform Act of 1995. All statements other than
statements of historical fact are "forward-looking statements." Forward-looking
statements may include the words "believes," "expects," "plans," "intends,"
"anticipates," "continues" or other similar expressions. These statements are
based on our current expectations of future events and are subject to a number
of risks and uncertainties that may cause our actual results to differ
materially from those described in the forward-looking statements. Should one or
more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may vary materially from those
anticipated, estimated or projected. These factors and uncertainties include,
among others:
o Heightened competition, including the intensification of price
competition.
o Impact of changes in payor mix, including the shift from traditional,
fee-for-service medicine to managed-cost health care.
o Adverse actions by governmental or other third-party payors, including
unilateral reduction of fee schedules payable to us.
o The impact upon our collection rates or general or administrative
expenses resulting from compliance with Medicare administrative
policies including specifically the HCFA's recent requirement that
laboratories performing certain automated blood chemistry profiles
obtain and provide documentation of the medical necessity of tests
included in the profiles for each Medicare beneficiary.
o Failure to obtain new customers, retain existing customers or reduction
in tests ordered or specimens submitted by existing customers.
o Adverse results in significant litigation matters.
o Denial of certification or licensure of any of our clinical
laboratories under CLIA, by Medicare programs or other Federal, state
or local agencies.
o Adverse publicity and news coverage about us or the clinical laboratory
industry.
o Inability to carry out marketing and sales plans.
o Loss or retirement of key executives.
9
o Impact of potential patent infringement by others or us.
o Inability to obtain patent protection or secure and maintain
proprietary positions on our technology.
o Dependence on new technologies for our product development and
dependence on product candidates in early stages of development.
o Clinical trials for our products will be expensive and their outcome is
uncertain. We incur substantial expenses that might not result in
viable products.
o May need additional capital in the future, and if unavailable, we may
need to curtail or cease operations.
o Fluctuations in quarterly results resulting from uneven customer order
flow.
These and other risks and uncertainties are disclosed from time to time
in our filings with the Securities and Exchange Commission, in our press
releases and in oral statements made by or with the approval of authorized
personnel. We assume no obligation to update any forward-looking statements as a
result of new information or future events or developments.
USE OF PROCEEDS
The selling stockholders will receive all of the proceeds from the sale
of the shares of our common stock offered for sale by the selling stockholders
under this prospectus. We will receive none of the proceeds from the sale of the
shares by the selling stockholders. We will bear all expenses incurred in
registering the shares, but all commissions and other selling expenses incurred
by each selling stockholder will be borne by that stockholder.
10
SELLING STOCKHOLDERS
The shares of common stock to which this prospectus relates may be
reoffered and sold from time to time by selling stockholders who may be deemed
our "affiliates" (as defined in Rule 501(b) of Regulation D of the Securities
Act of 1933, as amended). The selling stockholders will acquire or have acquired
the shares of common stock upon exercise of options granted or to be granted to
them pursuant to the Enzo Biochem, Inc. 2005 Equity Compensation Incentive Plan
("2005 Plan") or Enzo Biochem, Inc. 1999 Stock Option Plan ("1999 Plan"), upon
exercise of stock options granted under our Enzo Biochem, Inc. 1994 Stock Option
Plan ("1994 Plan") or pursuant to stock awards under the 2005 Plan. The table
below identifies each selling stockholder and his or her relationship to us. The
table also sets forth, as of March 1, 2005, for each selling stockholder: (i)
the number of shares of common stock beneficially owned prior to this offering,
(ii) the number of shares of common stock that may be offered and sold through
this prospectus, and (iii) the number of shares of common stock and the
percentage of the class represented by such shares to be owned by each such
selling stockholder assuming the sale of all of the registered shares. There is
no assurance that any of the selling stockholders will sell any or all of their
shares of common stock. The inclusion in the table of the individuals named
therein shall not be deemed to be an admission that any such individuals are one
of our affiliates. Except as otherwise noted, all shares of common stock are
beneficially owned and the sole investment and voting power is held by the
person named, and such persons' address is c/o Enzo Biochem, Inc., 60 Executive
Boulevard, Farmingdale, New York 11735. Information regarding the selling
stockholders, including the number of shares offered for sale, may change from
time to time, and any changed information will be set forth in a prospectus
supplement to the extent required.
BENEFICIAL OWNERSHIP
AFTER THIS OFFERING (1)(2)
--------------------------
BENEFICIAL SHARES THAT MAY BE
OWNERSHIP PRIOR TO OFFERED AND SOLD PERCENT
NAME AND POSITION THIS OFFERING HEREBY NUMBER OF SHARES OF CLASS
------------------------------------------ --------------------- --------------------- ------------------- -----------
Elazar Rabbani, Ph.D. 2,297,934 (3) 529,571 1,768,363 5.51%
Chairman of the Board and Chief
Executive Officer
Shahram K. Rabbani 2,228,680 (4) 529,571 1,699,109 5.29%
Chief Operating Officer, Secretary
and Director
Barry W. Weiner 1,482,918 (5) 529,571 953,347 2.97%
President, Chief Financial Officer
and Director
Dean Engelhardt, Ph.D. 263,816 (6) 99,523 164,293 *
Executive Vice President
Norman E. Kelker, Ph.D. 182,648 (7) 65,400 117,248 *
Senior Vice President
John J. Delucca 80,324 (8) 80,324 -- --
Director
Irwin C. Gerson 54,690 (9) 54,690 -- --
Director
Melvin F. Lazar, CPA 65,394 (10) 28,644 36,750 *
Director
John B. Sias 184,210 (11) 110,500 73,710 *
Director
Marcus A. Conant, M.D. 26,458 (12) 26,458 -- --
Director
11
BENEFICIAL OWNERSHIP
AFTER THIS OFFERING (1)(2)
--------------------------
BENEFICIAL SHARES THAT MAY BE
OWNERSHIP PRIOR TO OFFERED AND SOLD PERCENT
NAME AND POSITION THIS OFFERING HEREBY NUMBER OF SHARES OF CLASS
------------------------------------------ --------------------- --------------------- ------------------- -----------
Herb Bass 197,968 (13) 85,091 112,877 *
Vice President - Finance
David Goldberg 112,775 (14) 84,408 28,367 *
Vice President - Business
Development
Barbara Thalenfeld 82,734 (15) 70,381 12,353 *
Vice President - Corporate
Development
--------------------------
(1) Percentage calculated on the basis of 32,094,300 shares of common stock
outstanding at March 1, 2005, plus in the case of each selling stockholder,
additional shares of common stock deemed to be outstanding because such
shares may be acquired through the exercise of outstanding options
beneficially owned by such selling stockholder.
(2) Assumes the sale of all shares of common stock registered pursuant to this
prospectus, although selling stockholders are under no obligation known to
us to sell any shares of common stock at this time.
(3) Includes (i) 60,775 shares of common stock issuable upon exercise of
options under the Enzo Biochem, Inc. 1993 Incentive Stock Option Plan (the
"1993 Plan"), (ii) 130,819 shares of common stock issuable upon the
exercise of options issued under the 1994 Plan, (iii) 348,752 shares of
common stock issuable upon the exercise of exercisable options issued under
the 1999 Plan, of which 243,172 are exercisable and 105,580 have not yet
become exercisable as of March 1, 2005, (iv) 50,000 shares of common stock
issuable upon the exercise of options issued under the 2005 Plan that have
not yet become exercisable as of March 1, 2005, (v) 3,469 shares of common
stock held in the name of Dr. Rabbani as custodian for certain of his
children, (vi) 2,168 shares of common stock held in the name of Dr.
Rabbani's wife as custodian for certain of their children, and (vii) 3,141
shares of common stock held in the Enzo Biochem, Inc. 401(k) plan.
(4) Includes (i) 60,775 shares of common stock issuable upon exercise of
options under the 1993 Plan, (ii) 130,819 shares of common stock issuable
upon the exercise of options issued under the 1994 Plan, (iii) 348,752
shares of common stock issuable upon the exercise of exercisable options
under the 1999 Plan, of which 243,172 are exercisable and 105,580 have not
yet become exercisable as of March 1, 2005, (iv) 50,000 shares of common
stock issuable upon the exercise of options issued under the 2005 Plan that
have not yet become exercisable as of March 1, 2005, (v) 644 shares of
common stock held in the name of Mr. Rabbani's son, (vi) 1,754 shares of
common stock that Mr. Rabbani holds as custodian for certain of his
nephews, and (vii) 3,106 shares of common stock held in the Enzo Biochem,
Inc. 401(k) plan.
(5) Includes (i) 60,775 shares of common stock issuable upon exercise of
options under the 1993 Plan, (ii) 130,819 shares of common stock issuable
upon the exercise of options issued under the 1994 Plan, (iii) 348,752
shares of common stock issuable upon the exercise of exercisable options
under the 1999 Plan, of which 243,172 are exercisable and 105,580 have not
yet become exercisable as of March 1, 2005, (iv) 50,000 shares of common
stock issuable upon the exercise of options issued under the 2005 Plan that
have not yet become exercisable as of March 1, 2005, (v) 3,642 shares of
common stock which Mr. Weiner holds as custodian for certain of his
children, and (vi) 3,148 shares of common stock held in the Enzo Biochem,
Inc. 401(k) plan.
(6) Includes (i) 39,292 shares of common stock issuable upon the exercise of
options issued under the 1994 Plan, (ii) 43,195 shares of common stock
issuable upon the exercise of exercisable options under the 1999 Plan, of
which 23,623 are exercisable and 19,572 have not yet become exercisable as
of March 1, 2005, (iii) 10,000 shares of common stock issuable upon the
exercise of options issued under the 2005 Plan that have not yet become
exercisable as of March 1, 2005, (iv) 3,128 shares of common stock held in
the Enzo Biochem, Inc. 401(k) plan, and (v) 7,036 shares of common stock
issued upon the exercise of options granted under the 1994 Plan.
12
(7) Includes (i) 19,191 shares of common stock issuable upon the exercise of
exercisable options issued under the 1994 Plan, (ii) 36,209 shares of
common stock issuable upon the exercise of options under the 1999 Plan, of
which 22,052 are exercisable and 14,157 have not yet become exercisable as
of March 1, 2005, (iii) 10,000 shares of common stock issuable upon the
exercise of options issued under the 2005 Plan that have not yet become
exercisable as of March 1, 2005, and (iv) 3,057 shares of common stock held
in the Enzo Biochem, Inc. 401(k) plan.
(8) Includes (i) 15,650 shares of common stock issuable upon the exercise of
exercisable options under the 1994 Plan, and (ii) 64,674 shares of common
stock issuable upon the exercise of options under the 1999 Plan, of which
48,236 are exercisable and 16,438 have not yet become exercisable as of
March 1, 2005.
(9) Includes 54,690 shares of common stock issuable upon the exercise of
exercisable options under the 1999 Plan, of which 38,252 are exercisable
and 16,438 have not yet become exercisable as of March 1, 2005.
(10) Includes (i) 28,644 shares of common stock issuable upon the exercise of
exercisable options under the 1999 Plan, of which 12,206 are exercisable
and 16,438 have not yet become exercisable as of March 1, 2005, (ii) 7,875
shares of common stock owned by Mr. Lazar's wife, and (iii) 3,150 shares of
common stock held in the name of a defined benefit plan for which Mr. Lazar
is the sole trustee and beneficiary.
(11) Includes (i) 45,826 shares of common stock issuable upon the exercise of
exercisable options issued under the 1994 Plan, (ii) 54,121 shares of
common stock issuable upon the exercise of options under the 1999 Plan, of
which 37,683 are exercisable and 16,438 have not yet become exercisable as
of March 1, 2005, and (iii) 10,553 shares of common stock issued upon the
exercise of options granted under the 1994 Plan.
(12) Includes 26,458 shares of common stock issuable upon the exercise of
options under the 1999 Plan, of which 9,550 are exercisable and 16,908 have
not yet become exercisable as of March 1, 2005.
(13) Includes (i) 9,267 shares of common stock issuable upon the exercise of
exercisable options issued under the 1994 Plan, (ii) 39,400 shares of
common stock issuable upon the exercise of options under the 1999 Plan, of
which 24,674 shares are exercisable and 14,726 have not yet become
exercisable as of March 1, 2005, (iii) 10,000 shares of common stock
issuable upon the exercise of options issued under the 2005 Plan that have
not yet become exercisable as of March 1, 2005, (iv) 26,424 shares of
common stock issued upon the exercise of options granted under the 1994
Plan, and (v) 2,980 shares of common stock held in the Enzo Biochem, Inc.
401(k) plan.
(14) Includes (i) 35,767 shares of common stock issuable upon the exercise of
exercisable options issued under the 1994 Plan, (ii) 38,641 shares of
common stock issuable upon the exercise of options under the 1999 Plan, of
which 25,931 shares are exercisable and 12,710 have not yet become
exercisable as of March 1, 2005, (iii) 10,000 shares of common stock
issuable upon the exercise of options issued under the 2005 Plan that have
not yet become exercisable as of March 1, 2005, and (iv) 2,272 shares of
common stock held in the Enzo Biochem, Inc. 401(k) plan.
(15) Includes (i) 26,875 shares of common stock issuable upon the exercise of
exercisable options issued under the 1994 Plan, (ii) 33,506 shares of
common stock issuable upon the exercise of options under the 1999 Plan, of
which 26,625 shares are exercisable and 6,881 have not yet become
exercisable as of March 1, 2005, (iii) 10,000 shares of common stock
issuable upon the exercise of options issued under the 2005 Plan that have
not yet become exercisable as of March 1, 2005.
* Denotes less than 1%.
13
PLAN OF DISTRIBUTION
The shares of common stock covered by this prospectus are being
registered by us for the account of the selling stockholders.
The shares of common stock offered hereby may be sold from time to time
directly by or on behalf of each selling stockholder in one or more transactions
on the New York Stock Exchange or on any stock exchange on which the common
stock may be listed at the time of sale, in privately negotiated transactions,
or through a combination of such methods, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at fixed
prices (which may be changed) or at negotiated prices. The selling stockholder
may sell shares through one or more agents, brokers or dealers or directly to
purchasers. Such brokers or dealers may receive compensation in the form of
commissions, discounts or concessions from the selling stockholders and/or
purchasers of the shares or both. Such compensation as to a particular broker or
dealer may be in excess of customary commissions.
In connection with their sales, a selling stockholder and any
participating broker or dealer may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended ("Securities Act"), and any
commissions they receive and the proceeds of any sale of shares may be deemed to
be underwriting discounts and commissions under the Securities Act.
We are bearing all costs relating to the registration of the shares of
common stock. Any commissions or other fees payable to broker-dealers in
connection with any sale of the shares will be borne by the selling stockholder
or other party selling such shares. In order to comply with certain states'
securities laws, if applicable, the shares may be sold in such jurisdictions
only through registered or licensed brokers or dealers. In certain states, the
shares may not be sold unless the shares have been registered or qualified for
sale in such state, or unless an exemption from registration or qualification is
available and is obtained or complied with. Sales of the shares must also be
made by the selling stockholders in compliance with all other applicable state
securities laws and regulations.
In addition to any shares sold hereunder, selling stockholders may sell
shares of common stock in compliance with Rule 144 under the Securities Act.
There is no assurance that the selling stockholders will sell all or a portion
of the common stock offered hereby.
The selling stockholders may agree to indemnify any broker-dealer or
agent that participates in transactions involving sales of the shares against
certain liabilities in connection with the offering of the shares arising under
the Securities Act of 1933.
We have notified the selling stockholders of the need to deliver a copy
of this prospectus in connection with any sale of the shares.
14
LEGAL MATTERS
The validity of the shares of common stock will be passed upon for us
by Greenberg Traurig, LLP, New York, New York.
EXPERTS
The consolidated financial statements of Enzo Biochem, Inc.
incorporated by reference from the Company's Annual Report (Form 10-K) for the
year ended July 31, 2004, have been audited by Ernst & Young LLP, independent
registered public accounting firm, 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.
WHERE YOU CAN FIND MORE INFORMATION
We have filed registration statements with the SEC on Forms S-8 to
register the shares of our common stock being offered by this prospectus. This
prospectus, which is part of the registration statements, does not contain all
the information included in the registration statements. Some information has
been omitted in accordance with the rules and regulations of the SEC. For
further information, please refer to the registration statements and the
exhibits and schedules filed with them. In addition, we file annual, quarterly
and current reports, proxy statements and other information with the SEC. You
may read and copy any reports, statements or other information that we file at
the SEC's public reference facilities at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information
regarding the public reference facilities. The SEC maintains a website,
http://www.sec.gov, that contains reports, proxy statements and information
statements and other information regarding registrants that file electronically
with the SEC, including us. Our SEC filings are also available to the public
from commercial document retrieval services. Information contained on our
website should not be considered part of this prospectus.
You may also request a copy of our filings at no cost by writing or
telephoning us at:
Enzo Biochem, Inc.
60 Executive Boulevard
Farmingdale, New York 11735
Attention: Corporate Secretary
(631) 755-5500
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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 information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings that
we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934.
(a) Our Annual Report on Form 10-K for the year ended July 31, 2004, filed
on October 14, 2004.
(b) Our Quarterly Report on Form 10-Q for the quarter ended January 31,
2005 filed on March 14, 2005; our Quarterly Report on Form 10-Q for the
quarter ended October 31, 2004 filed on December 10, 2004; and our
Current Report on Form 8-K dated December 13, 2004 filed on December
14, 2004.
(c) The description of our shares of common stock contained in our
registration statement on Form 8-A, as filed with the SEC on December
8, 1999.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered a copy of any or all
documents incorporated by reference into this prospectus except the exhibits to
such documents (unless such exhibits are specifically incorporated by reference
in such documents). Requests for copies can be made by writing or telephoning us
at: Enzo Biochem, Inc., 60 Executive Boulevard, Farmingdale, New York 11735,
Attention: Corporate Secretary, telephone number: (631) 755-5500.
15
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the SEC are hereby incorporated by
reference:
(a) Our Annual Report on Form 10-K for the year ended July 31, 2004, filed
on October 14, 2004.
(b) Our Quarterly Report on Form 10-Q for the quarter ended January 31,
2005 filed on March 14, 2005; our Quarterly Report on Form 10-Q for the
quarter ended October 31, 2004 filed on December 10, 2004; and our
Current Report on Form 8-K dated December 13, 2004 filed on December
14, 2004.
(c) The description of our shares of common stock contained in our
registration statement on Form 8-A, as filed with the SEC on December
8, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby 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 hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this Registration Statement to the extent a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
A shareholder of Greenberg Traurig, LLP, New York, New York, holds
options to acquire an aggregate of 55,254 shares of our common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant is a New York corporation. Sections 721 through 726 of
the New York Business Corporation Law (the "BCL") provide that, in certain
circumstances, a corporation may indemnify its directors and officers against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, actually and necessarily incurred as a result of any actual or
threatened action or proceeding against such directors or officers, or by or in
the right of any other enterprise which such directors or officers served in any
capacity at the request of the corporation, by reason of the fact that such
person acted in any of the capacities set forth above, if such director or
officer (i) acted, in good faith, for a purpose which he or she reasonably
believed to be in or not opposed to the best interests of the corporation and
(ii) in criminal actions or proceedings, had no reasonable cause to believe that
his or her conduct was unlawful; provided, however, that no indemnification may
be provided where a final adjudication adverse to the director or officer
establishes that his or her actions were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action adjudicated, or that he or she personally gained a financial profit or
other advantage to which he or she was not legally entitled. A corporation is
required to indemnify against reasonable expenses (including attorneys' fees)
incurred by any director or officer who successfully defends any such action.
The BCL also provides for indemnification of officers and directors in actions
by or in the right of the corporation, subject to certain exceptions.
Indemnification provided by these provisions of the BCL is not exclusive of any
other rights to which a director or officer may be entitled. The foregoing
statements are subject to the detailed provisions of the BCL.
II-1
The registrant'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 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 1 of this Article V shall be entitled to indemnification as
authorized in such Section.
II-2
(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 1 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 1 of
this Article V has been met by such director or officer, or (B) by the
shareholders of the Corporation upon a finding that the director or officer has
met such standard of conduct.
(c) Expenses Incurred by a director or officer in defending a civil or
criminal action or proceeding shall be paid by the Corporation in advance of the
final disposition of such action or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount 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 1 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 1 of this Article V, but the burden
of providing such defense shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors, its independent legal
counsel, and its shareholders) to have made a determination that indemnification
of the claimant is proper in the circumstances, nor the fact that there has been
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel, and its shareholders) that indemnification of the
claimant is not proper in the circumstances, shall be a defense to the action or
create a presumption that the claimant is not entitled to indemnification.
Section 4. SURVIVAL, SAVINGS CLAUSE; PRESERVATION OF OTHER RIGHTS.
(a) The foregoing indemnification provisions shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while these provisions, as well as the relevant
provisions of the New York Business Corporation Law, are in effect and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any
action or proceeding previously or thereafter brought or threatened based in
whole or in part upon any such state of facts. Such a contract fight may not be
modified retroactively without the consent of such director or officer.
(b) If this Article V or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director or officer of the Corporation against
judgments, fines, amounts paid in settlement and expenses (including attorneys'
fees) incurred in connection with any actual or threatened action or proceeding,
whether civil or criminal, including any actual or threatened action by or in
the right of the Corporation, or any appeal therein, to the full extent
permitted by any applicable portion of this Article V that shall not have been
invalidated and to the full extent permitted by applicable law.
(c) The indemnification provided by this Article V shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of shareholders or directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person. The Corporation is hereby authorized to provide
further
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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.
ITEM 8. EXHIBITS
NO. DESCRIPTION
4.1 Certificate of Incorporation
4.2 Certificate of Amendment of the Certificate of Incorporation, Filed
March 17, 1980
4.3 Certificate of Amendment of the Certificate of Incorporation, Filed
June 16, 1981
4.4 Certificate of Amendment to the Certificate of Incorporation, Filed
July 22, 1988
4.5 Amended and Restated By-laws
4.6 Form of Common Stock Certificate
4.7 Enzo Biochem, Inc. 2005 Equity Compensation Incentive Plan, previously
filed as an exhibit to the registrant's
II-4
Proxy Statement on Schedule 14A filed on January 19, 2005, is
incorporated herein by reference.
4.8 Enzo Biochem, Inc. 1999 Stock Option Plan, previously filed as exhibit
4.1 to the registrant's Registration Statement on Form S-8
(Registration No. 333-87153), is incorporated herein by reference
4.9 Enzo Biochem, Inc. 1994 Stock Option Plan
5.1 Legal Opinion of Greenberg Traurig, LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Greenberg Traurig, LLP (included in exhibit 5.1)
24.1 Powers of Attorney of the directors and certain officers of the
registrant (included in the signature pages to this Registration
Statement)
------------------------
* Except as otherwise indicated, all exhibits listed are filed herewith.
ITEM 9. 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 prospectus required by Section 10(a)(3) of the
Securities Act of 1933 ("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 end 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% 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 disclosed previously in the registration statement or
any material change to such information in the 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
Sections 13 or 15(d) of the Securities Exchange Act of 1934 ("Exchange
Act") that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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, each filing of the
registrant's annual report pursuant to Sections 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act), 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.
II-5
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6, 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
Securities 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.
II-6
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-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, New York, on March 30, 2005.
ENZO BIOCHEM, INC.
By: /s/ Elazar Rabbani
-------------------------------------
Elazar Rabbani, Ph.D.
Chairman and Chief Executive Officer
SPECIAL POWER OF ATTORNEY
The undersigned constitute and appoint Elazar Rabbani and Shahram K.
Rabbani or either of them acting alone, their true and lawful attorney-in-fact
and agent with full power of substitution, 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 Form S-8 Registration Statement, and to file
the same with all exhibits thereto, and all documents in connection therewith,
with the U.S. Securities and Exchange Commission, granting such attorney-in-fact
the 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 and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorney-in-fact may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Date: March 30, 2005 By: /s/ Elazar Rabbani
-----------------------------------------
Elazar Rabbani, Ph.D.
Chairman of the Board of Directors and Chief
Executive Officer (Principal Executive Officer)
Date: March 30, 2005 By: /s/ Shahram K. Rabbani
-----------------------------------------
Shahram K. Rabbani
Chief Operating Officer, Secretary and Director
Date: March 30, 2005 By: /s/ Barry W. Weiner
-----------------------------------------
Barry W. Weiner
President, Chief Financial Officer (Principal
Financial and Accounting Officer) and Director
Date: By:
-----------------------------------------
John B. Sias
Director
Date: March 30, 2005 By: /s/ John J. Delucca
-----------------------------------------
John J. Delucca
Director
Date: March 30, 2005 By: /s/ Irwin C. Gerson
-----------------------------------------
Irwin C. Gerson
Director
Date: March 30, 2005 By: /s/ Melvin F. Lazar
-----------------------------------------
Melvin F. Lazar
Director
Date: By:
-----------------------------------------
Marcus A. Conant, M.D.
Director
EXHIBIT INDEX
NO. DESCRIPTION
--- -----------
4.1 Certificate of Incorporation
4.2 Certificate of Amendment of the Certificate of Incorporation, Filed
March 17, 1980
4.3 Certificate of Amendment of the Certificate of Incorporation, Filed
June 16, 1981
4.4 Certificate of Amendment to the Certificate of Incorporation, Filed
July 22, 1988
4.5 Amended and Restated By-laws
4.6 Form of Common Stock Certificate
4.7 Enzo Biochem, Inc. 2005 Equity Compensation Incentive Plan, previously
filed as an exhibit to the registrant's Proxy Statement on Schedule 14A
filed on January 19, 2005, is incorporated herein by reference.
4.8 Enzo Biochem, Inc. 1999 Stock Option Plan, previously filed as exhibit
4.1 to the registrant's Registration Statement on Form S-8
(Registration No. 333-87153), is incorporated herein by reference
4.9 Enzo Biochem, Inc. 1994 Stock Option Plan
5.1 Legal Opinion of Greenberg Traurig, LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Greenberg Traurig, LLP (included in exhibit 5.1)
24.1 Powers of Attorney of the directors and certain officers of the
registrant (included in the signature pages to this Registration
Statement)
--------------------------
* Except as otherwise indicated, all exhibits listed are filed herewith.