As
filed with the Securities and Exchange Commission on September 1, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Enzo Biochem, Inc.
(Exact name of registrant as specified
in its charter)
New York
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13-2866202
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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527 Madison Avenue
New York, NY 10022
(212) 583-0100
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Barry W. Weiner
Enzo Biochem, Inc.
527 Madison Avenue
New York, NY 10022
(212) 583-0100
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Robert H. Cohen, Esq.
McDermott Will & Emery LLP
340 Madison Avenue
New York, NY 10173
Tel: (222) 547-5400
Approximate date of commencement of proposed sale to the
public:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans, please check the following box.
o
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
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
o
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box.
o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
o
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Accelerated filer
x
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Non-accelerated filer
o
(Do not check if a smaller reporting company)
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Smaller reporting company
o
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Emerging growth company
o
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for comply with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of Securities Act.
o
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
(1)
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Amount to be
Registered
(1)
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Proposed
Maximum
Offering Price Per
Share
(2)
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Proposed
Maximum
Aggregate
Offering
Price
(2) (3)
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Amount of
Registration Fee
(4)
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Common Stock, $0.01 par value per share
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—
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Preferred Stock, $0.01 par value per share
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Depositary Shares
(5)
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Debt Securities
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Warrants
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Units
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Total
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$
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150,000,000
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$
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17,385.00
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(6)
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(1)
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This registration statement covers the registration of such indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of depositary shares, and such indeterminate number of warrants to purchase common stock, preferred stock, depositary shares or debt securities and units consisting of any combination of such securities as shall have an aggregate initial offering price not to exceed $150,000,000. In this prospectus, we refer to the common stock, preferred stock, depositary shares, debt securities, warrants and units collectively as “securities.” If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $150,000,000, less the aggregate dollar amount of all securities previously issued hereunder. This registration statement also covers an indeterminate amount of securities that may be issued in exchange for, or upon conversion or exercise of preferred stock, depositary shares, debt securities or warrants being registered hereunder or pursuant to the antidilution provisions of any such securities. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.
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(2)
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In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currencies.
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(3)
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The proposed maximum per unit and aggregate offering prices per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3.
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(4)
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Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
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(5)
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Represents depositary shares, evidenced by depositary receipts, issued pursuant to a deposit agreement. In the event the registrant issues fractional interests in shares of the preferred stock registered hereunder, depositary receipts will be
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distributed to purchasers of such fractional interests, and such shares of preferred stock will be issued to a depositary under the terms of a deposit agreement.
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(6)
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Pursuant to Rule 415(a)(6) and Rule 457(p) under the Securities Act, the registrant hereby offsets the total registration fee due under this registration statement by the amount of the filing fee associated with the unsold securities from the registrant’s Form S-3 Registration Statement, filed with the Commission on September 1, 2016 (SEC File No. 333-213440), registering securities for a maximum aggregate offering price of $50,000,000 (the “Prior Registration Statement”). The associated filing fee of $2,099.00 for the $50,000,000 of securities remaining under the Prior Registration Statement is hereby used to offset the current registration fee due. Pursuant to Rule 415(a)(6), the offering of such securities registered under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement.
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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, as amended, or until the registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
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a base prospectus which covers the offering, issuance and sale of such indeterminate number of shares of common stock, preferred stock, depositary shares, debt securities, warrants, and units, which together shall have an aggregate initial offering price not to exceed $150,000,000; and
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a sales agreement prospectus covering the offering, issuance and sale of shares of the Registrant’s common stock that, may be issued and sold under a sales agreement, between the Registrant and Cantor Fitzgerald & Co., or Cantor, in an aggregate amount of up to $19,150,000.
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The base prospectus immediately follows
this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in
a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The common
stock that may be offered, issued and sold under the sales agreement prospectus is included in the $150,000,000 of securities
that may be offered, issued and sold by the Registrant under the base prospectus.
The information in this prospectus
is not complete and may be changed. The selling stockholders may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS, SUBJECT TO COMPLETION,
DATED September 1, 2017
ENZO
BIOCHEM, INC.
$150,000,000
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants
Units
We may from time to
time offer and sell common stock, preferred stock, depositary shares, debt securities, warrants, and units, having an aggregate
offering price of up to $150,000,000. We may offer and sell these securities separately or together in any combination. We may
offer and sell these securities to or through underwriters, directly to investors or through agents. We will specify the terms
of the securities, and the names of any underwriters or agents and their respective compensation, in supplements to this prospectus.
Our common stock is listed on the New York Stock Exchange under the symbol “ENZ”. On August 31, 2017, the last reported
sale price of our common stock on the New York Stock Exchange was $11.25 per share.
You should read this
prospectus and any prospectus supplement carefully before you invest in any of our securities.
Investing in our
securities involves a high degree of risk. You should carefully consider the risk factors described in the applicable prospectus
supplement and certain of our filings with the Securities and Exchange Commission, as described under “Risk Factors”
on page 3.
This prospectus may
not be used to offer or sell any securities unless accompanied by a prospectus supplement.
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 ,
2017.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part
of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”), using a “shelf”
registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one
or more offerings up to a total dollar amount of $150,000,000. We have provided to you in this prospectus a general description
of the securities we may offer. Each time we sell securities under this shelf registration process, we will provide a prospectus
supplement that will contain specific information about the terms of the offering. We may also add, update or change in the prospectus
supplement or any “free writing prospectus” we may authorize to be delivered to you any of the information contained
in this prospectus. To the extent there is a conflict between the information contained in this prospectus and the prospectus supplement
or any free writing prospectus we may authorize to be delivered to you, you should rely on the information in the prospectus supplement
or free writing prospectus, as the case may be, provided that if any statement in one of these documents is inconsistent with a
statement in another document having a later date—for example, a document incorporated by reference in this prospectus or
any prospectus supplement—the statement in the document having the later date modifies or supersedes the earlier statement.
An investment in our
securities involves certain risks that should be carefully considered by prospective investors. See “Risk Factors.”
We incorporate by reference
important business and financial information about us into this prospectus and any prospectus supplement or any free writing prospectus
we may authorize to be delivered to you. You may obtain the information incorporated by reference into this prospectus without
charge by following the instructions under “Where You Can Find More Information.” You should carefully read this prospectus
and any prospectus supplement and any free writing prospectus we may authorize to be delivered to you as well as additional information
described under “Incorporation of Certain Documents by Reference.” All references in this prospectus to “Enzo
Biochem,” “Enzo,” the “Company,” “we,” “us” or “our” mean Enzo
Biochem, Inc., unless we state otherwise or the context otherwise requires.
You should rely only
on the information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide
you with different information. If anyone provides you with different or inconsistent information, you should not rely on it.
We are not making an offer to sell these securities in any jurisdiction where the offer is not permitted. The information contained
in this prospectus is accurate only as of the date of this prospectus and the information in the documents incorporated by reference
in this prospectus is accurate only as of the date the documents were filed with the SEC, regardless of the time of delivery of
this prospectus or the time of issuance or resale of any securities. Our business, financial condition, results of operations
and prospects may have changed since those dates.
SUMMARY
The following summary
provides an overview of certain information about our company and the offering and may not contain all the information that may
be important to you. This summary is qualified in its entirety by and should be read together with the information contained in
other parts of this prospectus. You should carefully read this entire prospectus before making a decision about whether to invest
in any of our securities.
Enzo Biochem, Inc.
Overview
Enzo Biochem, Inc. (the “Company” “we”,
“our” or “Enzo”) is a vertically integrated growth-oriented bioscience company focusing on delivering and
applying advanced technology capabilities to produce affordable reliable products and services to allow our customers to meet their
clinical needs. We develop, manufacture and sell our proprietary technology solutions and platforms to clinical laboratories, specialty
clinics and researchers and physicians globally. Enzo’s structure and business strategy represents the culmination of years
of extensive planning and work. The Company now has the unique ability to offer low cost, high performance products and services
in molecular diagnostics, which ideally positions it to capitalize on the reimbursement pressures facing diagnostic labs. Our pioneering
work in genomic analysis coupled with our extensive patent estate and enabling platforms have positioned the Company to continue
to play an important role in the rapidly growing molecular medicine marketplaces.
Enzo technology solutions and platforms and unique operational
structure is designed to reduce overall healthcare costs to both government and private insurers.
Our
proprietary technology platforms reduces our customers’ need for multiple, specialized instruments, and offer a variety of
throughput capabilities together with a demonstrated high level of accuracy and reproducibility. Our genetic test panels are focused
on large and growing markets primarily in the areas of personalized medicine, women’s health, infectious diseases and genetic
disorders.
For example, our AMPIPROBE® technology platform can lead
to the development of an entire line of nucleic acid clinical products that can allow laboratories to offer a complete menu of
services at a cost that allows them to enjoy an acceptable margin. Our technology solutions provide tools to physicians, clinicians
and other health care providers to improve detection, treatment and monitoring of a broad spectrum of diseases and conditions.
In
addition, reduced patient to physician office visits translates into lower healthcare processing costs and greater patient services.
In the course of our research and development activities, we
have built a substantial portfolio of intellectual property assets, comprising 314 issued patents worldwide, and over 146 pending
patent applications, along with extensive enabling technologies and platforms.
Operating Segments
We are comprised of three interconnected operating segments
which have evolved out of our core competencies involving the use of nucleic acids as informational molecules and the use of compounds
for immune modulation and augmented by the previous acquisitions of a number of related companies. Information concerning sales
by geographic area and business segments for the years ended July 31, 2016, 2015 and 2014 is located in Note 15 in the Notes to
Consolidated Financial Statements in our Form 10-K filed October 13, 2016.
Below are brief descriptions of each of our operating segments:
Enzo Clinical
Labs
is a clinical reference laboratory providing a wide range of clinical services to physicians, medical centers,
other clinical labs and pharmaceutical companies. The Company believes having a College of American Pathologists (“CAP”)
certified medical laboratory located in New York provides us the opportunity to more rapidly introduce cutting edge products and
services to the clinical marketplace. Enzo Clinical Labs offers an extensive menu of molecular and other clinical laboratory tests
or procedures used in patient care by physicians to establish or support a diagnosis, monitor treatment or medication, and search
for an otherwise
undiagnosed condition. Our laboratory is
equipped with state of the art communication and connectivity solutions enabling the rapid transmission, analysis and interpretation
of generated data. We operate a full service clinical laboratory in Farmingdale, New York, a network of over 30 patient service
centers throughout New York and New Jersey, a free standing “STAT” or rapid response laboratory in New York City and
a full service phlebotomy, in-house logistics department, and information technology department. Given our license in New York
State, we are able to offer testing services to clinical laboratories and physicians in the majority of states nationwide.
Enzo Life Sciences
manufactures,
develops and markets products and tools to clinical research, drug development and bioscience research customers worldwide. Underpinned
by broad technological capabilities, Enzo Life Sciences has developed proprietary products used in the identification of genomic
information by laboratories around the world. We are internationally recognized and acknowledged as a leader in the development,
manufacturing validation and commercialization of numerous products serving not only the clinical research market but life sciences
researchers in the fields of cellular analysis and drug discovery, among others. Our operations are supported by global operations
allowing for the efficient marketing and delivery of our products around the world.
Enzo Therapeutics
is
a biopharmaceutical venture that has developed multiple novel approaches in the areas of gastrointestinal, infectious, ophthalmic
and metabolic diseases, many of which are derived from the pioneering work of Enzo Life Sciences. Enzo Therapeutics has focused
its efforts on developing treatment regimens for diseases and conditions for which current treatment options are ineffective, costly,
and/or cause unwanted side effects. This focus has generated a clinical and preclinical pipeline, as well as more than 115 patents
and patent applications.
Our primary sources
of revenue have historically been from the clinical laboratory services provided to the healthcare community and product revenues
and royalty and licensing of Enzo Life Sciences’ products utilized in life science research.
Corporate Information
Our offices are located
at 527 Madison Avenue, New York, New York 10022, and our telephone number is (212) 583-0100. We maintain a website at
www.enzo.com
.
Our website and the information contained therein or connected thereto are not incorporated by reference and are not a part of
this prospectus.
RISK FACTORS
Before
you invest in our securities, in addition to the other information, documents or reports included or incorporated by reference
in this prospectus and in any prospectus supplement, you should carefully consider the risk factors set forth in the section entitled
“Risk Factors” in any prospectus supplement as well as in “Part I, Item 1A. Risk Factors” in our most
recent annual report on Form 10-K and in “Part II, Item 1A. Risk Factors” in our quarterly reports on Form 10-Q filed
subsequent to such Form 10-K, which are incorporated by reference into this prospectus and any prospectus supplement in their
entirety, as the same may be updated from time to time by our future filings under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). Each of the risks described in these sections and documents could materially and adversely affect
our business, financial condition, results of operations and prospects and the market price of our shares and any other securities
we may issue. Moreover, the risks and uncertainties discussed in the foregoing documents are not the only risks and uncertainties
that we face, and our business, financial condition, results of operations and prospects and the market price of our shares and
any other securities we may issue could be materially adversely affected by other matters that are not known to us or that we
currently do not consider to be material risks to our business
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FORWARD-LOOKING STATEMENTS
This prospectus, the
documents incorporated by reference herein and any related free writing prospectus may contain forward-looking statements within
the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements
are based on our current expectations, assumptions, estimates and projections about our business and our industry, and involve
known and unknown risks, uncertainties and other factors that may cause our results, levels of activity, performance or achievement
to be materially different from any future results, levels of activity, performance or achievements expressed or implied by the
forward-looking statements.
In some cases, you can
identify forward-looking statements by terms such as “anticipate,” “believe,” “could,” “estimate,”
“expect,” “intend,” “may,” “plan,” “potential,” “predict,”
“project,” “should,” “will,” “would” and similar expressions intended to identify
forward-looking statements. While we believe that we have a reasonable basis for each forward-looking statement, we caution you
that these statements are based on a combination of facts and factors currently known by us and our projections of the future,
about which we cannot be certain. We discuss many of these risks, uncertainties and other factors in greater detail under the heading
“Risk Factors” contained in this prospectus. Given these risks, uncertainties and other factors, you should not place
undue reliance on these forward-looking statements. Also, these forward-looking statements represent our estimates and assumptions
only as of the date such forward-looking statements are made. You should read carefully this prospectus, together with the information
incorporated herein by reference as described under the heading “Where You Can Find More Information” in this prospectus,
completely and with the understanding that our actual future results may be materially different from what we expect. We hereby
qualify all of our forward-looking statements by these cautionary statements.
Except as required
by law, we assume no obligation to update these forward-looking statements, or to update the reasons actual results could differ
materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
RATIO OF EARNINGS TO FIXED CHARGES
The following table
sets forth our ratio of earnings to fixed charges for the periods indicated:
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Nine
Months
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Ended
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April
30,
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Fiscal
Year Ended July 31,
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2017
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2016
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2015
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2014
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2013
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2012
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Ratio of Earnings
to Fixed Charges
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N/A
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343
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N/A
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N/A
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N/A
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N/A
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Dollar amount of earnings (deficiency)
(in thousands)
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$
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(2,733)
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$
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46,651
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$
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(2,047)
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$
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(9,697)
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$
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(18,895)
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$
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(40,942)
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For
purposes of calculating our ratio of earnings to fixed charges, earnings consist of earnings from continuing operations before
income taxes, adjusted for fixed charges deducted from the earnings. Fixed charges consist of interest on all indebtedness, including
amortization of debt issuances costs and the estimated interest component of rent expense.
We
currently have no issued and outstanding preferred stock.
USE OF PROCEEDS
Unless otherwise specified
in the applicable prospectus supplement, we intend to use the net proceeds from the sale of securities offered by this prospectus
for general corporate purposes, including without limitation, the funding of future acquisitions, the funding of our clinical
research and development programs, the clinical development of our product capabilities, capital expenditures and working capital
needs. We will set forth in the prospectus supplement our intended use for the net proceeds received from the sale of any securities.
THE SECURITIES WE MAY OFFER
The descriptions of
the securities contained in this prospectus, together with the applicable prospectus supplements, summarize all the material terms
and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus supplement relating
to any securities the particular terms of the securities offered by that prospectus supplement. If we indicate in the applicable
prospectus supplement, the terms of the securities may differ from the terms we have summarized below. We will also include in
the prospectus supplement information, where applicable, about material United States federal income tax considerations relating
to the securities, and the securities exchange, if any, on which the securities will be listed.
We may sell from time
to time, in one or more offerings:
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common stock;
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preferred stock;
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depositary shares;
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debt securities;
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warrants to purchase any of the securities listed above; and
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units consisting of any combination of the securities listed above.
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In this prospectus,
we refer to the common stock, preferred stock, depositary shares, debt securities, warrants and units collectively as “securities.”
The total dollar amount of all securities that we may sell pursuant to this prospectus will not exceed $150,000,000.
If we issue debt securities
at a discount from their original stated principal amount, then, for purposes of calculating the total dollar amount of all securities
issued under this prospectus, we will treat the initial offering price of the debt securities as the total original principal amount
of the debt securities.
This prospectus may
not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
General Matters
Pursuant to our Certificate
of Incorporation, as amended, the total amount of our authorized capital stock is 100,000,000 shares, which consists of 75,000,000
shares of authorized common stock, par value $0.01 per share, and 25,000,000 shares of authorized preferred stock, par value $0.01
per share. As of August 31, 2017, we had outstanding 46,511,851 shares of common stock and no shares of preferred stock. As of
August 31, 2017, we had approximately 681 holders of record of our common stock.
The following summary
of our capital stock does not purport to be complete and is subject to and qualified in its entirety by, our Certificate of Incorporation,
as amended, and our Amended and Restated By-laws, which are filed as exhibits to the registration statement of which this prospectus
forms a part.
Common Stock
The holders of shares
of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders.
All shares of our common stock are entitled to share equally in any dividends our board of directors may declare from legally available
sources. Our common stock is traded on the New York Stock Exchange under the symbol “ENZ”. The section below entitled
“Certain Provisions of New York Law and of the Company’s Charter and By-laws” contains additional information
regarding the rights and preferences of our common stock. The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company.
Preferred Stock
Our
board of directors has the authority, without further action by the stockholders, to issue shares of preferred stock in one or
more series and to fix and determine the following terms of the preferred stock by resolution: variations in the designations,
preferences, and relative, participating, optional or other special rights (including, without limitation, special voting rights,
of conversion in common stock or other securities, redemption provisions or sinking fund provisions) as between series and between
the preferred stock and any series thereof and the common stock, and the qualifications, limitations or restrictions of such rights,
all as shall be stated in a resolution of the board of directors. Shares of preferred stock or any series thereof may have full
or limited voting powers, or be without voting powers, all as shall be stated in a resolution of the board of directors.
Any
or all of these rights may be greater than the rights of our common stock. We currently have no issued and outstanding preferred
stock.
Our
board of directors, without stockholder approval, can issue preferred stock with voting, conversion or other rights that could
negatively affect the voting power and other rights of the holders of our common stock. Preferred stock could thus be issued quickly
with terms calculated to delay or prevent a change in control of the Company or to make it more difficult to remove the Company’s
management. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
DESCRIPTION
OF DEPOSITARY SHARES
The
following description, together with the additional information we include in any applicable prospectus supplement, summarizes
the material terms and provisions of the depositary shares that we may offer under this prospectus. The following statements with
respect to the depositary shares and depositary receipts are summaries of, and subject to, the detailed provisions of a deposit
agreement to be entered into by Enzo Biochem and a depositary to be selected at the time of issue (the “depositary”)
and the form of depositary receipt. The form of deposit agreement and the form of depositary receipt will be filed with the SEC.
General
We
may, at our option, elect to issue fractional shares of preferred stock, rather than full shares of preferred stock. In the event
such option is exercised, we may elect to have a depositary issue receipts for depositary shares, each receipt representing a fraction,
to be set forth in the prospectus supplement relating to a particular series of preferred stock, of a share of a particular series
of preferred stock as described below.
The
shares of any series of preferred stock represented by depositary shares will be deposited under a deposit agreement between us
and a bank or trust company that we select. Subject to the terms of the deposit agreement, each owner of a depositary share will
be entitled, in proportion to the applicable fraction of a share of preferred stock represented by such depositary share, to all
the rights and preferences of the preferred stock represented by the depositary share, including dividend, voting, redemption and
liquidation rights.
Depositary Receipts
The
depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of an offering of
the preferred stock.
Withdrawal of Preferred Stock
Upon
surrender of depositary receipts at the office of the depositary and upon payment of the charges provided in the deposit agreement,
a holder of depositary receipts may have the depositary deliver to the holder the whole shares of preferred stock relating to the
surrendered depositary receipts. Holders of depositary shares may receive whole shares of the related series of preferred stock
on the basis set forth in the related prospectus supplement for such series of preferred stock, but holders of such whole shares
will not after the exchange be entitled to receive depositary shares for their whole shares. If the depositary receipts delivered
by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole
shares of the related series of preferred stock to be withdrawn, the depositary will deliver to the holder at the same time a new
depositary receipt evidencing such excess number of depositary shares.
Dividends and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions received for the preferred stock to the record holders
of depositary shares relating to the preferred stock in proportion to the numbers of such depositary shares owned by such holders.
In
the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of
depositary shares entitled thereto, unless the depositary determines that it is not feasible to make distribution of the property.
In that case the depositary may, with our approval, sell such property and distribute the net proceeds from the sale to such holders.
Redemption of Depositary Shares
If
a series of preferred stock represented by depositary shares is subject to redemption, the depositary shares will be redeemed
from the proceeds received by the depositary resulting from the redemption, in whole or in part, of the series of preferred stock
held by the depositary. The redemption price per depositary share will be equal
to the applicable
fraction of the redemption price per share payable with respect to the series of the preferred stock. Whenever we redeem shares
of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares
representing shares of preferred stock redeemed by us. If less than all the depositary shares are to be redeemed, the depositary
shares to be redeemed will be selected by lot or pro rata as may be determined by the depositary.
Voting the Preferred Stock
Upon
receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the
information contained in such notice of meeting to the record holders of the depositary shares relating to such preferred stock.
Each record holder of such depositary shares on the record date, which will be the same date as the record date for the preferred
stock, will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of the preferred
stock represented by such holder’s depositary shares. The depositary will endeavor, insofar as practicable, to vote the amount
of the preferred stock represented by such depositary shares in accordance with such instructions, and we will agree to take all
action which may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will not vote
the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing
such preferred stock.
Amendment and Termination of the
Deposit Agreement
We
and the depositary at any time may amend the form of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement. However, any amendment which materially and adversely alters the rights of the holders of depositary shares
will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then
outstanding. We or the depositary may terminate the deposit agreement only if all outstanding depositary shares have been redeemed,
or there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding
up of Enzo Biochem and such distribution has been distributed to the holders of depositary receipts.
Charges of
Depositary
We
will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements.
We will pay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and such other charges as
are expressly provided in the deposit agreement to be for their accounts.
Miscellaneous
The
depositary will forward to the record holders of the depositary shares relating to such preferred stock all reports and communications
from us which are delivered to the depositary.
Neither
we nor the depositary will be liable if either one is prevented or delayed by law or any circumstance beyond their control in performing
the obligations under the deposit agreement. The obligations of Enzo Biochem and the depositary under the deposit agreement will
be limited to performance in good faith of their duties thereunder, and they will not be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. The depositary may
rely upon written advice of counsel or accountants, or information provided by persons presenting preferred stock for deposit,
holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the depositary,
any such resignation or removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment.
Such successor depositary must be appointed within sixty (60) days after delivery of the notice of resignation or removal
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DESCRIPTION OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and
provisions of the debt securities that we may offer under this prospectus and the related indenture. While the terms we have summarized
below will apply generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular
terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. If we indicate in a prospectus
supplement, the terms of any debt securities we offer under that prospectus supplement may differ from the terms we describe below.
We may offer debt securities
from time to time in one or more offerings under this prospectus. We will issue any such debt securities under an indenture that
we will enter into with a trustee to be named in the indenture. We have filed a form of indenture as an exhibit to the registration
statement of which this prospectus is a part. The indenture will be qualified under the Trust Indenture Act of 1939, as in effect
on the date of the indenture. We use the term “debenture trustee” to refer to the trustee under the indenture.
The following summaries
of material provisions of the debt securities and the indenture are subject to, and qualified in their entirety by reference to,
all the provisions of the indenture applicable to a particular series of debt securities.
General
The indenture provides that
debt securities may be issued from time to time in one or more series. The indenture does not limit the amount of debt securities
that may be issued thereunder, and the indenture provides that the specific terms of any series of debt securities shall be set
forth in, or determined pursuant to, an authorizing resolution, an officers’ certificate and/or a supplemental indenture,
if any, relating to such series.
We will describe in each
prospectus supplement the following terms relating to a series of debt securities:
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the title or designation of the debt securities;
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whether the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt securities;
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any limit upon the aggregate principal amount of the debt securities;
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the date or dates on which the debt securities may be issued and on which we will pay the principal on the debt securities;
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the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates;
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the manner in which the amounts of payment of principal of, premium or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index;
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the currency of denomination of the debt securities;
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if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the place or places where the principal of, premium, and interest on the debt securities will be payable, where debt securities of any series may be presented for registration of transfer, exchange or conversion, and where notices and demands to or upon the Company in respect of the debt securities may be made;
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the form of consideration in which principal of, premium or interest on the debt securities will be paid;
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the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund, amortization or analogous provisions or at the option of a holder of debt securities;
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the dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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whether the debt securities are to be issued at any original issuance discount and the amount of discount with which such debt securities may be issued;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities and, in such case, the depositary for such global security or securities and the terms and conditions, if any, upon which interests in such global security or securities may be exchanged in whole or in part for the individual securities represented thereby;
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provisions, if any, for the defeasance of the debt securities of a series in whole or in part and any addition or change in the provisions related to satisfaction and discharge;
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the form of the debt securities;
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the terms and conditions upon which the debt securities will be so convertible or exchangeable into securities or property of another person, if at all, and any additions or changes, if any, to permit or facilitate such conversion or exchange;
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whether the debt securities will be subject to subordination and the terms of such subordination;
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provisions, if any, granting special rights to holders of the debt securities upon the occurrence of specified events;
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any restriction or condition on the transferability of the debt securities;
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any addition or change in the provisions related to compensation and reimbursement of the trustee which applies to securities of such series;
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any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; and
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any other terms of the debt securities, which may modify or delete any provision of the indenture.
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We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their
maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations
and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the
prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common
stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the
holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection in Event of a Change
of Control or Highly Leveraged Transaction
The indenture provides that
we may not merge or consolidate with or into another entity, or sell other than for cash or lease all or substantially all our
assets to another entity, or purchase all or substantially all the assets of another entity unless we are the surviving entity
or, if we are not the surviving entity, the successor, transferee or lessee entity expressly assumes all of our obligations under
the indenture or the debt securities, as appropriate.
Unless we state otherwise
in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt
securities additional protection in the event we have a change of control or in the event of a highly leveraged transaction (whether
or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The following are events
of default under the indenture with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any for 30 days, when due whether by maturity or called for redemption;
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if we fail to pay a sinking fund installment, if any, when due and our failure continues for 30 days;
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if we fail to observe or perform any other covenant relating to such series contained in the debt securities of such series or the indenture, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur as to us.
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No event of default with
respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default may
constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence
of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other
indebtedness outstanding from time to time.
If an event of default with
respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not
less than a majority in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and
to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities
of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of
and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree for payment
of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal amount
of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the
holders of a majority in principal amount of the debt securities of such series represented at such meeting) the acceleration shall
be deemed to have been waived, rescinded and annulled if all events of default, other than the non- payment of accelerated principal,
premium, if any, and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in
the applicable indenture (including payments or deposits in respect of principal, premium or interest that had become due other
than as a result of such acceleration) and the Company has deposited with the indenture trustee or paying agent a sum sufficient
to pay all amounts owed to the indenture trustee under the indenture, all arrears of interest, if any, on the debt securities,
and the principal and premium, if any, on the debt securities that have become due other than by such acceleration. We refer you
to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
Subject to the terms of
the indenture, if an event of default under the indenture shall occur and be continuing, the debenture trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders
of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred
on the debenture trustee, with respect to the debt securities of that series, provided that, subject to the terms of the indenture,
the debenture trustee need not take any action that it believes, upon the advice of counsel, might involve it in personal liability
or might be unduly prejudicial to the holders not involved in the proceeding.
A holder of the debt securities
of any series will only have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to
seek other remedies if:
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the holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series;
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the holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and
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the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions within 60 days after the notice, request and offer.
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These limitations do not
apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest
on, the debt securities.
We will periodically file
statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and
we may, without the consent of any holders, execute a supplemental indenture to change the applicable indenture with respect to
specific matters, including, among other things:
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to surrender any right or power conferred upon the Company;
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to provide, change or eliminate any restrictions on the payment of principal of or premium, if any, on the debt securities; provided that any such action shall not adversely affect the interests of the holders of debt securities of any series in any material respect;
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to change or eliminate any of the provisions of the indenture; provided that any such change or elimination shall become effective only when there is no outstanding debt security of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision and as to which such supplemental indenture would apply;
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to evidence the succession of another corporation to the Company;
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to evidence and provide for the acceptance of appointment by a successor trustee with respect to one or more series of debt securities and to add or change provisions of the indenture to facilitate the administration of the trusts thereunder by more than one trustee;
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to cure any ambiguity, mistake, manifest error, omission, defect or inconsistency in the indenture or to conform the text of any provision in the indenture or in any supplemental indenture to any description thereof in the applicable section of a prospectus, prospectus supplement or other offering document that was intended to be a verbatim recitation of a provision of the indenture or of any supplemental indenture;
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to add to or change or eliminate any provision of the indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act;
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to make any change in any series of debt securities that does not adversely affect in any material respect the interests of the holders of such debt securities; and
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to supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of debt securities; provided that any such action shall not adversely affect the interests of the holders of debt securities of such series or any other series of debt securities.
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In addition, under the indenture,
the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of
the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series (or, at a meeting
of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of
such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes
only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of
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interest, or any premium payable upon the redemption of any debt securities;
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reducing the principal amount of discount securities payable upon acceleration of maturity;
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making the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
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impairing the right to institute suit for the enforcement of any payment on or after the fixed maturity date of any series of debt securities;
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materially adversely affecting the economic terms of any right to convert or exchange any debt securities; and
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment or waiver; or modifying, without the written consent of the trustee, the rights, duties or immunities of the trustee.
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Except for certain specified
provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series (or, at a meeting
of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of
such series represented at such meeting) may, on behalf of the holders of all debt securities of that series, waive our compliance
with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series
may, on behalf of the holders of all the debt securities of such series, waive any past default under the indenture with respect
to that series and its consequences, other than a default in the payment of the principal of, premium or any interest on any debt
security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Discharge
The indenture provides that
we can elect to be discharged from our obligations with respect to one or more series of debt securities. In order to exercise
our rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations sufficient
to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are
due.
Form, Exchange and Transfer
We will issue the debt securities
of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with a depositary named by us and identified
in a prospectus supplement with respect to that series.
At the option of the holder,
subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus
supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same
series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of
the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of
the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form
of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that
the holder presents for transfer or exchange or
in the indenture, we will make no service charge
for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series.
If we elect to redeem the
debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt
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securities that may be selected for redemption and ending at the close of business on the
day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Debenture Trustee
The debenture trustee, other
than during the occurrence and continuance of an event of default under the indenture, undertakes to perform only those duties
as are specifically set forth in the indenture. Upon an event of default under the indenture, the debenture trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision,
the debenture trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder
of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might
incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date
to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
Unless we otherwise indicate
in the applicable prospectus supplement, we will pay principal of and any premium and interest on the debt securities of a particular
series at the office of the indenture trustee or, at the option of the Company, by wire or check payable to the holder. Unless
we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee our sole
paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement
any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent
in each place of payment for the debt securities of a particular series. All money we pay to a paying agent or the debenture trustee
for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two
years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security
thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt
securities will be governed and construed in accordance with the laws of the State of New York.
DESCRIPTION OF WARRANTS
The following description,
together with the additional information we may include in any applicable prospectus supplements, summarizes the material terms
and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates.
While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms
of any series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement,
the terms of any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant
agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration
statement that includes this prospectus.
General
We may issue warrants for
the purchase of common stock, preferred stock or debt securities in one or more series. We may issue warrants independently or
together with common stock, preferred stock and debt securities, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants by
warrant certificates that we will issue under a separate agreement. We may enter into a warrant agreement with a warrant agent.
If we engage a warrant agent, each warrant agent will be a bank that we select which has its principal office in the United States.
We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series
of warrants.
Before exercising their
warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
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Additional Information
We will describe in the
applicable prospectus supplement the terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant
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agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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a discussion on any material or special United States federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Exercise of Warrants
Each warrant will entitle
the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe
in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants
may exercise the warrants at any time up to 5 p.m., Eastern time, on the expiration date that we set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants
may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified
information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement
the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required
payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or
any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such
exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant
certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will
act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or
trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants.
A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION OF UNITS
We may issue units comprised
of one or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder
of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus
supplement may describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
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the terms of the unit agreement governing the units;
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United States federal income tax considerations relevant to the units; and
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whether the units will be issued in fully registered global form.
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This summary of certain
general terms of units and any summary description of units in the applicable prospectus supplement do not purport to be complete
and are qualified in their entirety by reference to all provisions of the applicable unit agreement and, if applicable, collateral
arrangements and depositary arrangements relating to such units. The forms of the unit agreements and other documents relating
to a particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions
that may be important to you.
PLAN OF DISTRIBUTION
We may sell the securities
through underwriters or dealers, through agents, or directly to one or more purchasers. The accompanying prospectus supplement
will describe the terms of the offering of the securities, including:
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the name or names of any underwriters;
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the purchase price of the securities being offered and the proceeds we will receive from the sale;
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any over-allotment options pursuant to which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
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If underwriters are used
in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at the time of the sale. The obligations of the underwriters
to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the
securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate.
Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus supplement.
We may change from time to time the public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
We may use underwriters with whom we have a material relationship. We will describe such relationships in the prospectus supplement
naming the underwriter and the nature of any such relationship.
We may sell securities directly
or through agents we designate from time to time. We will name any agent involved in the offering and sale of the securities, and
we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise,
our agent will act on a best efforts basis for the period of its appointment.
We may engage in “at
the market offerings” of our common stock, which are offerings into an existing trading market, at other than a fixed price,
on or through the facilities of a national securities exchange or to or through a market maker otherwise than on an exchange.
We may enter into derivative
transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions.
If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of common shares, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of common shares. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will
be identified in the applicable prospectus supplement or a post-effective amendment to this registration statement.
Our common stock is listed
on the New York Stock Exchange. All securities we offer other than common stock will be new issues of securities with no established
trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
We may provide agents and
underwriters with indemnification against civil liabilities related to this offering, including liabilities under the Securities
Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents
and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
Rules of the SEC may limit
the ability of any underwriters to bid for or purchase securities before the distribution of the securities is completed. However,
underwriters may engage in the following activities in accordance with the rules:
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Stabilizing transactions — Underwriters may make bids or purchases for the purpose of pegging, fixing or maintaining the price of the shares, so long as stabilizing bids do not exceed a specified maximum.
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Over-allotments and syndicate covering transactions — Underwriters may sell more shares of our common stock than the number of shares that they have committed to purchase in any underwritten offering. This over-allotment creates a short position for the underwriters. This short position may involve either “covered” short sales or “naked” short sales. Covered short sales are short sales made in an amount not greater than the underwriters’ over-allotment option to purchase additional shares in any underwritten offering. The underwriters may close out any covered short position either by exercising their over-allotment option or by purchasing shares in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market, as compared to the price at which they may purchase shares through the over-allotment option. Naked short sales are short sales in excess of the over-allotment option. The underwriters must close out any naked position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the shares that could adversely affect investors who purchase shares in the offering.
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Penalty bids — If underwriters purchase shares in the open market in a stabilizing transaction or syndicate covering transaction, they may reclaim a selling concession from other underwriters and selling group members who sold those shares as part of the offering.
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Similar to other purchase
transactions, an underwriter’s purchases to cover the syndicate short sales or to stabilize the market price of our securities
may have the effect of raising or maintaining the market price of our securities or preventing or mitigating a decline in the market
price of our securities. As a result, the price of the securities may be higher than the price that might otherwise exist in the
open market. The imposition of a penalty bid might also have an effect on the price of shares if it discourages resales of the
securities.
If commenced, the underwriters
may discontinue any of the activities at any time.
CERTAIN PROVISIONS OF NEW YORK LAW AND OF
THE COMPANY’S CHARTER AND BY-LAWS
The following paragraphs
summarize certain provisions of the New York Business Corporation Law, or NYBCL, and our Certificate of Incorporation, as amended,
and our Amended and Restated By-laws. The summary does not purport to be complete and is subject to and qualified in its entirety
by reference to the NYBCL and to our bylaws, copies of which are on file with the SEC as exhibits to the registration statement
of which this prospectus forms a part. See “Where You Can Find More Information.”
General.
Certain
provisions of our Certificate of Incorporation, as amended, and our Amended and Restated By-laws and New York law could make our
acquisition by a third party, a change in our incumbent management, or a similar change of control more difficult, including:
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an acquisition of us by means of a tender or exchange offer;
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an acquisition of us by means of a proxy contest or otherwise; or
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the removal of a majority or all of our incumbent officers and directors.
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These provisions, which
are summarized below, are likely to discourage certain types of coercive takeover practices and inadequate takeover bids. These
provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors.
We believe that these provisions help to protect our potential ability to negotiate with the proponent of an unfriendly or unsolicited
proposal to acquire or restructure us, and that this benefit outweighs the potential disadvantages of discouraging such a proposal
because our ability to negotiate with the proponent could result in an improvement of the terms of the proposal.
Election and removal
of directors.
Our bylaws provide that the size of the board of directors shall be fixed at five (5) directors and shall be
classified into three classes, as nearly equal as possible as determined by the board of directors. The directors are to be elected
at the annual meeting of the stockholders, with a term expiring at the annual meeting of shareholders held in the third year following
the year of their election or until his successor is elected and qualified. Any director or the entire board of directors may be
removed, with cause, by a the affirmative vote of (i) the holders of 80% of the combined voting power of the then outstanding shares
of stock entitled to vote generally in the election of directors, voting together as a single class and (ii) a majority of such
shares beneficially owned by the persons not affiliated with an interested shareholder.
Stockholder meetings.
Our bylaws provide that the stockholders may not call a special meeting of the stockholders of our company. Instead, special meetings
of the stockholders may be called by the Board of Directors pursuant to a resolution approved by a majority of the entire board
of directors.
Requirements for advance
notification of stockholder nominations and proposals.
Our bylaws establish advance notice procedures with respect to stockholder
proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the
board of directors or a committee of the board.
New York anti-takeover
law.
We are subject to certain “business combination” provisions of Section 912 of the NYBCL and expect to continue
to be so subject if and for so long as we have a class of securities registered under Section 12 of the Securities Exchange Act
of 1934. Section 912 provides, with certain exceptions (which include, among others, transactions with shareholders who became
interested prior to the effective date of an amendment to our Certificate of Incorporation providing that we would be subject to
Section 912 if such corporation did not then have a class of stock registered pursuant to Section 12 of the Exchange Act), that
a New York corporation may not engage in a “business combination” (e.g., merger, consolidation, recapitalization or
disposition of stock) with any “interested shareholder” for a period of five years from the date that such person first
became an interested shareholder unless:
(i) the transaction
resulting in a person becoming an interested shareholder was approved by the board of directors of the corporation prior to that
person becoming an interested shareholder; or
(ii) the business
combination is approved by the holders of a majority of the outstanding voting stock not beneficially owned by such interested
shareholder; or
(iii) the business
combination is approved by the disinterested shareholders at a meeting called no earlier than five years after the interested shareholder’s
stock acquisition date; or
(iv) the business
combination meets certain valuation requirements for the stock of a New York corporation.
An “interested shareholder”
is defined as any person who (a) is the beneficial owner of 20% or more of the outstanding voting stock of a New York corporation
or (b) is an affiliate or associate of a corporation that at any time during the prior five years was the beneficial owner, directly
or indirectly, of 20% or more of the then outstanding voting stock.
A “business combination”
includes mergers, asset sales and other transactions resulting in a financial benefit to the interested shareholder.
The “stock acquisition
date”, with respect to any person and any New York corporation, means the date that such person first becomes an interested
shareholder of such corporation.
No cumulative voting.
Our Certificate of Incorporation, as amended, and our Amended and Restated By-laws do not provide for cumulative voting in the
election of directors.
Limitation of liability.
As permitted by the NYBCL, our Certificate of Incorporation, as amended provides that a director will not be personally liable
to us or our stockholders for damages for any breach of duty in his or her capacity as a director unless a judgment or other final
adjudication adverse to such director establishes that (i) his or her acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law, (ii) such director personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled or (iii) his or her acts violated Section 719 of the NYBCL. As a result of this provision,
we and our stockholders may be unable to obtain monetary damages from a director for breach of his or her duty of care.
Our Certificate of Incorporation,
as amended, and our Amended and Restated By-laws also provide for the indemnification of our directors and officers to the fullest
extent authorized by the NYBCL. Insofar as indemnification for liabilities under the Securities Act may be permitted to directors,
officers or controlling persons of our company pursuant to our Certificate of Incorporation, as amended, our Amended and Restated
By-laws and the NYBCL, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
We have the power to purchase
and maintain insurance on behalf of any person who is or was one of our directors or officers, or is or was serving at our request
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other business against any
liability asserted against the person or incurred by the person in any of these capacities, or arising out of the person’s
fulfilling one of these capacities, and related expenses, whether or not we would have the power to indemnify the person against
the claim under the provisions of the NYBCL. We intend to maintain director and officer liability insurance on behalf of our directors
and officers.
LEGAL MATTERS
The validity of the issuance
of the securities described herein has been passed upon for us by McDermott Will & Emery LLP, New York, New York. Additional
legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable
prospectus supplement.
EXPERTS
The consolidated balance
sheets of Enzo Biochem, Inc. and subsidiaries as of July 31, 2016 and 2015 and the related consolidated statements of operations,
comprehensive income (loss), stockholders’ equity, and cash flows for each of the years in the three-year period ended July
31, 2016, and financial statement schedule for each of the years in the three-year period ended July 31, 2016 have been audited
by EisnerAmper LLP, independent registered public accounting firm, as stated in their reports, which are incorporated herein by
reference, which reports (1) express an unqualified opinion on the financial statements and financial statement schedule, and (2)
express an unqualified opinion on the effectiveness of internal control over financial reporting as of July 31, 2016. Such financial
statements and financial statement schedule have been incorporated herein by reference in reliance on the reports of such firm
given upon their authority as experts in accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION 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 instead of having to repeat the information in this prospectus. The information incorporated by reference
is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the document listed below and any future filings made with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents deemed
to be furnished and not filed in accordance with SEC rules) between the date of this prospectus and the termination of the offering:
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our Annual Report on Form 10-K for the fiscal year ended July 31, 2016 (including the information specifically incorporated by reference into our Annual Report on Form 10-K from our definitive proxy statement) filed with the SEC on October 13, 2016;
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our Quarterly Reports on Form 10-Q for the fiscal quarters ended October 31, 2016, January 31, 2017 and April 30, 2017 filed with the SEC on December 8, 2016, March 13, 2017 and June 8, 2017, respectively;
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our Current Reports on Form 8-K (other than the information furnished pursuant to Item 2.02 or 7.01 thereof or related exhibits furnished pursuant to Item 9.01 thereof) filed with the SEC on September 20, 2016, January 10, 2017, April 17, 2017, June 8, 2017, June 29, 2017, August 2, 2017 and August 16, 2017; and
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the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on December 8, 1999, including any amendment or report filed for the purpose of updating such description.
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This prospectus is part
of a registration statement on Form S-3 we have filed with the SEC under the Securities Act. This prospectus does not contain all
of the information in the registration statement. We have omitted certain parts of the registration statement, as permitted by
the rules and regulations of the SEC. You may inspect and copy the registration statement, including exhibits, at the SEC’s
public reference room or website. Our statements in this prospectus about the contents of any contract or other document are not
necessarily complete. You should refer to the copy of each contract or other document we have filed as an exhibit to the registration
statement for complete information.
You may request a copy of
any or all of the information incorporated by reference, at no cost, by writing or telephoning us at the following address:
Enzo Biochem, Inc.
527 Madison Avenue
New York, New York 10022
(212) 583-0100
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s
public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our filings with the SEC are also available to the public at the SEC’s website
at
http://www.sec.gov
. You may also obtain copies of the documents at prescribed rates by writing to the SEC’s Public
Reference Section at 100 F Street, N.E., Washington, D.C. 20549. Our website is located at
www.enzo.com
. The contents of
our website are not incorporated by reference, are not part of this prospectus and should not be relied upon with respect thereto.
The information in this prospectus
is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS, SUBJECT TO COMPLETION,
DATED September 1, 2017
ENZO
BIOCHEM, INC.
Up to $19,150,000
Common Stock
In accordance with the terms
of our existing sales agreement with Cantor Fitzgerald & Co., we may sell shares of our common stock from time to time through
Cantor Fitzgerald & Co., acting as agent pursuant to this prospectus. This prospectus relates to the shares of common stock
having an aggregate offering price of up to $19,150,000 that are available for issuance as of September 1, 2017, under our existing
sales agreement.
Our common stock is listed
on The New York Stock Exchange under the symbol “ENZ”. On August 31, 2017, the last reported sale price of our common
stock on The New York Stock Exchange was $11.25 per share.
Sales of our common stock,
if any, under this prospectus may be made in sales deemed to be an “at the market offering” as defined in
Rule 415(a)(4)
promulgated
under the Securities Act of 1933, as amended (Securities Act). Cantor Fitzgerald & Co. will act as sales agent
on a best efforts basis and use commercially reasonable efforts to sell on our behalf all of the shares of common stock requested
to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between Cantor Fitzgerald &
Co. and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Cantor Fitzgerald &
Co. will be entitled to compensation at a fixed commission rate of 3.0% of the gross sales price per share sold. In connection
with the sale of our common stock on our behalf, Cantor Fitzgerald & Co. will be deemed to be an “underwriter”
within the meaning of the Securities Act and the compensation of Cantor Fitzgerald & Co. will be deemed to be underwriting
commissions or discounts.
Investing in our securities
involves a high degree of risk. Before making an investment decision, please read “Risk Factors” beginning on page
S-4 of this prospectus and in the documents incorporated by reference into this prospectus.
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 , 2017.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part
of a “shelf” registration statement on Form S-3 that we filed with the Securities and Exchange Commission (SEC).
You should read this
prospectus, the documents incorporated by reference in this prospectus and any free writing prospectus that we have authorized
for use in connection with this offering before making an investment decision. You should also read and consider the information
in the documents referred to in the sections of this prospectus entitled “Where You Can Find More Information” and
“Incorporation of Certain Documents by Reference.”
You should rely only
on the information contained or incorporated by reference in this prospectus and any free writing prospectus that we have authorized
for use in connection with this offering. We have not authorized anyone to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it.
We are not making an
offer to sell the securities covered by this prospectus in any jurisdiction where the offer or sale is not permitted.
The information appearing
in this prospectus, the documents incorporated by reference in this prospectus and any free writing prospectus that we have authorized
for use in connection with this offering is accurate only as of its respective date, regardless of the time of delivery of the
respective document or of any sale of securities covered by this prospectus. You should not assume that the information contained
in or incorporated by reference in this prospectus, or in any free writing prospectus that we have authorized for use in connection
with this offering, is accurate as of any date other than the respective dates thereof. Any statement made in this prospectus or
in any document incorporated by reference herein will be deemed to be modified or superseded to the extent that a statement in
this prospectus or in any other subsequently filed document that is also incorporated by reference in this prospectus modifies
or supersedes that statement.
In this prospectus,
the terms “Enzo Biochem,” “Enzo,” “Company,” “we,” “us,” “our”
and similar terms refer to Enzo Biochem, Inc., a New York corporation, unless the context otherwise requires.
PROSPECTUS SUMMARY
This summary highlights
certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this
prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether
to invest in the securities covered by this prospectus. For a more complete understanding of Enzo Biochem and this offering, we
encourage you to read and consider carefully the more detailed information in this prospectus, including the information incorporated
by reference in this prospectus and the information included in any free writing prospectus that we have authorized for use in
connection with this offering, including the information referred to under the heading “Risk Factors” in this prospectus
beginning on page S-4.
The Company
Overview
Enzo Biochem, Inc. (the “Company” “we”,
“our” or “Enzo”) is a vertically integrated growth-oriented bioscience company focusing on delivering and
applying advanced technology capabilities to produce affordable reliable products and services to allow our customers to meet their
clinical needs. We develop, manufacture and sell our proprietary technology solutions and platforms to clinical laboratories, specialty
clinics and researchers and physicians globally. Enzo’s structure and business strategy represents the culmination of years
of extensive planning and work. The Company now has the unique ability to offer low cost, high performance products and services
in molecular diagnostics, which ideally positions it to capitalize on the reimbursement pressures facing diagnostic labs. Our pioneering
work in genomic analysis coupled with our extensive patent estate and enabling platforms have positioned the Company to continue
to play an important role in the rapidly growing molecular medicine marketplaces.
Enzo technology solutions and platforms and unique operational
structure is designed to reduce overall healthcare costs to both government and private insurers.
Our
proprietary technology platforms reduces our customers’ need for multiple, specialized instruments, and offer a variety of
throughput capabilities together with a demonstrated high level of accuracy and reproducibility. Our genetic test panels are focused
on large and growing markets primarily in the areas of personalized medicine, women’s health, infectious diseases and genetic
disorders.
For example, our AMPIPROBE® technology platform can lead
to the development of an entire line of nucleic acid clinical products that can allow laboratories to offer a complete menu of
services at a cost that allows them to enjoy an acceptable margin. Our technology solutions provide tools to physicians, clinicians
and other health care providers to improve detection, treatment and monitoring of a broad spectrum of diseases and conditions.
In addition, reduced patient to physician office visits translates into lower healthcare processing costs and greater patient
services.
In the course of our research and development activities, we
have built a substantial portfolio of intellectual property assets, comprising 314 issued patents worldwide, and over 146 pending
patent applications, along with extensive enabling technologies and platforms.
Operating Segments
We are comprised of three interconnected operating segments
which have evolved out of our core competencies involving the use of nucleic acids as informational molecules and the use of compounds
for immune modulation and augmented by the previous acquisitions of a number of related companies. Information concerning sales
by geographic area and business segments for the years ended July 31, 2016, 2015 and 2014 is located in Note 15 in the Notes to
Consolidated Financial Statements in our Form 10-K filed October 13, 2016.
Below are brief descriptions of each of our operating segments:
Enzo Clinical
Labs
is a clinical reference laboratory providing a wide range of clinical services to physicians, medical centers, other
clinical labs and pharmaceutical companies. The Company believes having a
College of American Pathologists (“CAP”)
certified medical laboratory located in New York provides us the opportunity to more rapidly introduce cutting edge products and
services to the clinical marketplace. Enzo Clinical Labs offers an extensive menu of molecular and other clinical laboratory tests
or procedures used in patient care by physicians to establish or support a diagnosis, monitor treatment or medication, and search
for an otherwise undiagnosed condition. Our laboratory is equipped with state of the art communication and connectivity solutions
enabling the rapid transmission, analysis and interpretation of generated data. We operate a full service clinical laboratory in
Farmingdale, New York, a network of over 30 patient service centers throughout New York and New Jersey, a free standing “STAT”
or rapid response laboratory in New York City and a full service phlebotomy, in-house logistics department, and information technology
department. Given our license in New York State, we are able to offer testing services to clinical laboratories and physicians
in the majority of states nationwide.
Enzo Life Sciences
manufactures, develops and markets products and tools to clinical research, drug development and bioscience research customers
worldwide. Underpinned by broad technological capabilities, Enzo Life Sciences has developed proprietary products used in the identification
of genomic information by laboratories around the world. We are internationally recognized and acknowledged as a leader in the
development, manufacturing validation and commercialization of numerous products serving not only the clinical research market
but life sciences researchers in the fields of cellular analysis and drug discovery, among others. Our operations are supported
by global operations allowing for the efficient marketing and delivery of our products around the world.
Enzo Therapeutics
is a biopharmaceutical venture that has developed multiple novel approaches in the areas of gastrointestinal, infectious, ophthalmic
and metabolic diseases, many of which are derived from the pioneering work of Enzo Life Sciences. Enzo Therapeutics has focused
its efforts on developing treatment regimens for diseases and conditions for which current treatment options are ineffective, costly,
and/or cause unwanted side effects. This focus has generated a clinical and preclinical pipeline, as well as more than 115 patents
and patent applications.
Our primary sources
of revenue have historically been from the clinical laboratory services provided to the healthcare community and product revenues
and royalty and licensing of Enzo Life Sciences’ products utilized in life science research.
Corporate Information
Our offices are located
at 527 Madison Avenue, New York, New York 10022, and our telephone number is (212) 583-0100. We maintain a website at
www.enzo.com
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Our website and the information contained therein or connected thereto are not incorporated by reference and are not a part of
this prospectus.
THE OFFERING
Common stock offered by us…
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Shares of our common stock having an aggregate offering price of up to $19,150,000.
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Common stock to be outstanding immediately after this offering…
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Up to 48,214,073 shares (as more fully described in the notes following this table), assuming sales of 1,702,222 shares of our common stock in this offering at an offering price of 11.25 per share, which was the last reported sale price of our common stock on The New York Stock Exchange on August 31, 2017. The actual number of shares issued will vary depending on the sales price under this offering.
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Plan of Distribution…
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“At the market offering” that may be made from time to time through our sales agent, Cantor Fitzgerald & Co. See “Plan of Distribution” on page S-10 of this prospectus.
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Use of Proceeds…
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We currently intend to use the net proceeds from this offering, if any, for general corporate purposes, including research and development activities, capital expenditures and working capital. See “Use of Proceeds” on page S-8 of this prospectus.
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Risk Factors…
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Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page S-4 of this prospectus.
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New York Stock Exchange symbol…
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“ENZ”
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The number of shares
of our common stock shown above to be outstanding immediately after this offering is based on 46,511,851 shares outstanding as
of August 31, 2017 and excludes as of such date:
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2,248,513 shares of our common stock subject to outstanding options having a weighted average exercise price of $4.23 per share and 5,688 shares of unvested restricted stock awards outstanding, as of April 30, 2017; and
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Approximately 333,000 shares of our common stock reserved for future issuance pursuant to our existing stock incentive plan.
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RISK FACTORS
Investing in our
common stock involves a high degree of risk. Before purchasing our common stock, you should carefully consider the following risk
factors as well as those discussed under the section entitled “Risk Factors” in our Annual Report on Form 10-K for
the year ended July 31, 2016, and any subsequent Quarterly Report on Form 10-Q or Annual Report on Form 10-K, together with the
other information contained in this prospectus, the documents incorporated by reference and in any free writing prospectus we have
authorized for use in connection with this offering. Each of these risk factors, either alone or taken together, could adversely
affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our common
stock. There may be additional risks that we do not presently know of or that we currently believe are immaterial which could also
impair our business and financial position. If any of the events described below were to occur, our financial condition, our ability
to access capital resources, our results of operations and/or our future growth prospects could be materially and adversely affected
and the market price of our common stock could decline. As a result you could lose some or all of any investment you may have made
or may make in our common stock.
Risks Related to this Offering and our Common Stock
Our stock price has been volatile,
which could result in substantial losses for investors.
Our common stock is
quoted on the New York Stock Exchange, and there has been historical 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:
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fluctuations in our quarterly operating and earnings per share results;;
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the gain or loss of significant contracts;
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the carrying value of our goodwill and intangible assets;
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announcements of technological innovations or new commercial products by our competitors or us;
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loss of key personnel;
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delays in the development and introduction of new products;
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legislative or regulatory changes;
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general trends in the industries we operate;
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recommendations and/or changes in estimates by equity and market research analysts;
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biological or medical discoveries;
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disputes and/or developments concerning intellectual property, including patents and litigation matters;
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public concern as to the safety of new technologies;
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sales of common stock of existing holders;
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securities class action or other litigation;
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developments in our relationships with current or future customers and suppliers; and
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general economic conditions, both in the United States and worldwide.
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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.
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 retained earnings and 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 investors purchased their shares.
Investors in this offering will experience
immediate and substantial dilution in the net tangible book value per share of the common stock they purchase.
Since the price per
share of our common stock being offered is higher than the net tangible book value per share of our common stock, you will suffer
substantial dilution in the net tangible book value of the common stock you purchase in this offering. See the section entitled
“Dilution” in this prospectus for a more detailed discussion of the dilution you will incur if you purchase common
stock in this offering. In addition, we have a significant number of options outstanding. As of April 30, 2017, approximately 333,000
shares of common stock were reserved for future issuance under our stock incentive plan. As of that date, there were also 2,248,513
options to purchase shares of our common stock and 5,688 shares of unvested restricted stock awards outstanding. The exercise of
outstanding options and warrants having an exercise price per share that is less than the offering price per share in this offering
will increase dilution to investors in this offering.
Future sales of shares of our common
stock or the issuance of securities senior to our common stock could adversely affect the trading price of our common stock and
our ability to raise funds in new equity offerings.
We are not restricted
from issuing additional common stock, preferred stock or securities convertible into or exchangeable for common stock. Future sales
of a substantial number of our shares of common stock or equity-related securities in the public market or privately, or the perception
that such sales could occur, could adversely affect prevailing trading prices of our common stock, and could impair our ability
to raise capital through future offerings of equity or equity-related securities. No prediction can be made as to the effect, if
any, that future sales of shares of common stock or the availability of shares of common stock for future sale will have on the
trading price of our common stock. You may experience significant dilution as a result of future equity offerings.
We have broad discretion in the use
of the net proceeds from this offering.
Our management will
have broad discretion in the application of the net proceeds from this offering and could spend the proceeds in ways with which
you may not agree. Accordingly, you will be relying on the judgment of our management with regard to the use of the net proceeds,
and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately.
It is possible that the net proceeds will be invested or otherwise used in a way that does not yield a favorable, or any, return
for the Company.
Adverse capital and credit market
conditions could affect our liquidity.
Adverse capital and
credit market conditions could affect our ability to meet liquidity needs, as well as our access to capital and cost of capital.
The capital and credit markets have experienced extreme volatility and
disruption in recent years. Our results
of operations, financial condition, cash flows and capital position could be materially adversely affected by continued disruptions
in the capital and credit markets.
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:
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a staggered board of directors, so that it would take three successive annual meetings to replace all directors; and
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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.
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SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, the
documents we have filed with the SEC that are incorporated herein and therein by reference and any related free writing prospectus
may contain forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended. These statements are based on our current expectations, assumptions, estimates and projections
about our business and our industry, and involve known and unknown risks, uncertainties and other factors that may cause our results,
levels of activity, performance or achievement to be materially different from any future results, levels of activity, performance
or achievements expressed or implied by the forward- looking statements.
In some cases, you can
identify forward-looking statements by terms such as “anticipate,” “believe,” “could,” “estimate,”
“expect,” “intend,” “may,” “plan,” “potential,” “predict,”
“project,” “should,” “will,” “would” and similar expressions intended to identify
forward-looking statements. While we believe that we have a reasonable basis for each forward-looking statement, we caution you
that these statements are based on a combination of facts and factors currently known by us and our projections of the future,
about which we cannot be certain. We discuss many of these risks, uncertainties and other factors in greater detail under the heading
“Risk Factors” contained in this prospectus. Given these risks, uncertainties and other factors, you should not place
undue reliance on these forward-looking statements. Also, these forward-looking statements represent our estimates and assumptions
only as of the date such forward-looking statements are made. You should read carefully this prospectus, together with the information
incorporated herein by reference as described under the heading “Where You Can Find More Information” in this prospectus,
completely and with the understanding that our actual future results may be materially different from what we expect. We hereby
qualify all of our forward- looking statements by these cautionary statements.
Except as required
by law, we assume no obligation to update these forward-looking statements publicly, or to update the reasons actual results could
differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the
future.
USE OF PROCEEDS
We currently intend
to use the net proceeds from this offering, if any, for general corporate purposes, including research and development activities,
capital expenditures and working capital. Pending the application of the net proceeds, we intend to invest the net proceeds in
short-term, investment grade, interest-bearing securities or cash equivalents.
As of the date of this
prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering, if any.
As a result, our management will have broad discretion regarding the timing and application of the net proceeds from this offering,
if any.
DILUTION
If you invest in our
common stock, you will experience dilution to the extent of the difference between the price per share you pay in this offering
and the net tangible book value per share of our common stock immediately after this offering. Our net tangible book value as of
April 30, 2017 was approximately $77,866,000, or $1.68 per share of our common stock. Net tangible book value per share as of April
30, 2017 is equal to our total tangible assets minus total liabilities, all divided by the number of shares of common stock outstanding
as of April 30, 2017.
After giving effect
to the sale of our common stock in the aggregate amount of $19,150,000 in this offering at an assumed offering price of $11.25
per share, representing the last reported sale price of our common stock on The New York Stock Exchange on August 31, 2017, and
after deducting estimated offering commissions and expenses payable by us, our as adjusted net tangible book value would have been
approximately $96,357,000, or approximately $2.00 per share of common stock, as of April 30, 2017. This represents an immediate
increase in net tangible book value of approximately $0.32 per share to existing stockholders and an immediate dilution of approximately
$9.25 per share to investors in this offering. The following table illustrates this calculation on a per share basis.
Assumed public offering price per share
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$
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11.25
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Net tangible book value per share as of April 30, 2017
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$
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1.68
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Increase in net tangible book value per share attributable to this offering
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$
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0.32
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As adjusted net tangible book value per share as of April 30, 2017, after giving effect to this offering
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$
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2.00
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Dilution per share to new investors purchasing shares in this offering
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$
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9.25
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The table above assumes
for illustrative purposes that an aggregate of 1,702,222 shares of our common stock are sold at a price of $11.25 per share,
representing the last reported sale price of our common stock on The New York Stock Exchange on August 31, 2017, for aggregate
gross proceeds of $19,150,000. The shares sold in this offering, if any, will be sold from time to time at various prices. An increase
of $1.13 per share in the price at which the shares are sold from the assumed offering price of $11.25 per share shown in the
table above, assuming all of our common stock in the aggregate amount of $19,150,000 is sold at that price, would increase our
adjusted net tangible book value per share after the offering to $2.01 per share and would increase the dilution in net tangible
book value per share to new investors in this offering to $10.37 per share, after deducting commissions and estimated aggregate
offering expenses payable by us. A decrease of $1.13 per share in the price at which the shares are sold from the assumed offering
price of $11.25 per share shown in the table above, assuming all of our common stock in the aggregate amount of $19,150,000 is
sold at that price, would decrease our adjusted net tangible book value per share after the offering to $1.99 per share and would
decrease the dilution in net tangible book value per share to new investors in this offering to $8.13 per share, after deducting
commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only.
The above illustration
of dilution per share to investors participating in this offering assumes no exercise of outstanding options to purchase our common
stock. The exercise of outstanding options having an exercise price per share that is less than the offering price per share in
this offering will increase dilution to investors in this offering.
PLAN OF DISTRIBUTION
In accordance with the
terms of our existing Controlled Equity Offering
SM
Sales Agreement with Cantor Fitzgerald & Co., as amended
by its Amendment No. 1 to Sales Agreement, we may sell shares of our common stock from time to time through Cantor Fitzgerald &
Co., acting as agent pursuant to this prospectus. This prospectus relates to the shares of common stock having an aggregate offering
price of up to $19,150,000 that are available for issuance as of August 31, 2017, under our existing sales agreement. The sales
agreement was filed as an exhibit to a current report on Form 8-K filed with the SEC on March 28, 2013, and the amendment was filed
as an exhibit to a current report on Form 8-K filed with the SEC on December 31, 2014 and is incorporated by reference in this
prospectus.
Upon delivery of a placement
notice and subject to the terms and conditions of the sales agreement, Cantor may sell our common stock by any method permitted
by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act.
We may instruct Cantor not to sell common stock if the sales cannot be effected at or above the price designated by us from time
to time. We or Cantor may suspend the offering of common stock upon notice and subject to other conditions.
We will pay Cantor commissions,
in cash, for its services in acting as agent in the sale of our common stock. Cantor will be entitled to compensation at a fixed
commission rate of 3.0% of the gross sales price per share sold. Because there is no minimum offering amount required as a condition
to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at
this time. We estimate that the total expenses for the offering, excluding the aforementioned compensation payable to Cantor under
the terms of the sales agreement will be approximately $85,000.
Settlement for sales
of common stock will occur on the second business day following the date on which any sales are made, or on some other date that
is agreed upon by us and Cantor in connection with a particular transaction, in return for payment of the net proceeds to us. Sales
of our common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or
by such other means as we and Cantor may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar
arrangement.
Cantor will use its
commercially reasonable efforts, consistent with its normal trading and sales practices, to solicit offers to purchase the common
stock shares under the terms and subject to the conditions set forth in the sales agreement. In connection with the sale of the
common stock on our behalf, Cantor will be deemed to be an “underwriter” within the meaning of the Securities Act and
the compensation of Cantor will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification
and contribution to Cantor against certain civil liabilities, including liabilities under the Securities Act.
The offering of our
common stock pursuant to the sales agreement will terminate upon the earlier of (1) the sale of all shares of our common stock
subject to the sales agreement or (2) termination of the sales agreement as permitted therein. We and Cantor may each terminate
the sales agreement at any time upon ten days prior notice.
Cantor and its affiliates
may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates,
for which services they may in the future receive customary fees. To the extent required by Regulation M, Cantor will not engage
in any market making activities involving our common stock while the offering is ongoing under this prospectus.
This prospectus in electronic
format may be made available on a website maintained by Cantor and Cantor may distribute this prospectus electronically.
LEGAL MATTERS
Certain legal matters
in connection with the securities offered hereby will be passed upon for us by McDermott Will & Emery LLP, New York, New York.
Cantor Fitzgerald & Co. is being represented in connection with this offering by Cooley LLP, New York, New York.
EXPERTS
The consolidated balance
sheets of Enzo Biochem, Inc. and subsidiaries as of July 31, 2016 and 2015 and the related consolidated statements of operations,
comprehensive income (loss), stockholders’ equity, and cash flows for each of the years in the three-year period ended July 31,
2016, and financial statement schedule for each of the years in the three-year period ended July 31, 2016 have been audited by
EisnerAmper LLP, independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference,
which reports (1) express an unqualified opinion on the financial statements and financial statement schedule, and (2) express
an unqualified opinion on the effectiveness of internal control over financial reporting as of July 31, 2016. Such financial statements
and financial statement schedule have been incorporated herein by reference in reliance on the reports of such firm given upon
their authority as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the
SEC a registration statement on Form S-3, of which this prospectus is a part, under the Securities Act, to register the shares
of common stock offered by this prospectus. However, this prospectus does not contain all of the information contained in the registration
statement and the exhibits and schedules to the registration statement. Statements in this prospectus concerning any document we
filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive
and are qualified in their entirety by reference to those filings. We encourage you to carefully read the registration statement
and the exhibits and schedules to the registration statement.
We file annual, quarterly
and current reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s
public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our filings with the SEC are also available to the public at the SEC’s website
at
http://www.sec.gov
. You may also obtain copies of the documents at prescribed rates by writing to the SEC’s
Public Reference Section at 100 F Street, N.E., Washington, D.C. 20549. Our website is located at
www.enzo.com
. The
contents of our website are not part of this prospectus and should not be relied upon with respect thereto.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
SEC rules allow us to
“incorporate by reference” into this prospectus much of the information we file with the SEC, which means that we can
disclose important information to you by referring you to those publicly available documents. The information that we incorporate
by reference into this prospectus is considered to be part of this prospectus.
This prospectus incorporates
by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act (in each case, other than those documents or the portions of those documents deemed to be furnished and not filed
in accordance with SEC rules) until the offering of the securities contemplated by this prospectus is terminated or completed:
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our Annual Report on Form 10-K for the fiscal year ended July 31, 2016 (including the information
specifically incorporated by reference into our Annual Report on Form 10-K from our definitive proxy statement) filed with the
SEC on October 13, 2016;
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our Quarterly Reports on Form 10-Q for the fiscal quarters ended October 31, 2016, January 31,
2017 and April 30, 2017 filed with the SEC on December 8, 2016, March 13, 2017 and June 8, 2017, respectively;
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our Current Reports on Form 8-K (other than the information furnished pursuant to Item 2.02 or
7.01 thereof or related exhibits furnished pursuant to Item 9.01 thereof) filed with the SEC on September 20, 2016, January 10,
2017, April 17, 2017, June 8, 2017, June 29, 2017, August 2, 2017 and August 16, 2017; and
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the description of our common stock contained in our registration statement on Form 8-A filed with
the SEC on December 8, 1999, including any amendment or report filed for the purpose of updating such description.
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Because we are incorporating
by reference future filings with the SEC, this prospectus is continually updated and later information filed with the SEC may update
and supersede some of the information included or incorporated by reference in this prospectus. This means that you must look at
all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document
previously incorporated by reference have been modified or superseded.
We will provide without
charge to each person, including any beneficial owners, to whom this prospectus is delivered, upon his or her written or oral request,
a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus but not
delivered with this prospectus. You may request a copy of these documents by writing or telephoning us at the following address:
Enzo Biochem, Inc.
527 Madison Avenue
New York, New York 10022
(212) 583-0100
ENZO BIOCHEM, INC.
Up to $19,150,000
Common Stock
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PROSPECTUS
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, 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Distribution
The following
table lists the costs and expenses payable by the registrant in connection with the sale of the common stock covered by this prospectus
other than any sales commissions or discounts, which expenses will be paid by us. All amounts shown are estimates except the SEC
registration fee.
SEC registration fee
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$
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17,385.00
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Legal fees and expenses
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$
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Accounting fees and expenses
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$
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*
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Printing fees and miscellaneous expenses
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$
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*
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Total
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$
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*These fees are calculated on
the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15.
Indemnification of Directors and Officers
Enzo Biochem,
Inc. is incorporated under the laws of the State of New York. Reference is made to Section 721 of the NYBCL, which enables a corporation
in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director
for violations of the director’s fiduciary duty, except if (1) his or her acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or (2) such director personally gained in fact a financial profit or other
advantage to which or she was not legally entitled.
Reference is
also made to Section 722 of the NYBCL, which provides that a corporation may indemnify any person, including an officer or director,
who is, or is threatened to be made, party to any threatened, pending or completed legal action or proceeding, whether civil or
criminal, other than an action by or in the right of such corporation, by reason of the fact that such person was an officer, director,
employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided such officer, director, employee or agent acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the corporation’s best interest and, for criminal proceedings, had no reasonable cause to believe that his conduct
was unlawful. A New York corporation may indemnify any officer or director in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged
to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses that such officer or director actually and reasonably
incurred.
Article 8 of
the Company’s Certificate of Incorporation, as amended, provides that the Company shall, to the fullest extent permitted
by the provisions of Article 7 of the NYBCL, as the same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and all of the expenses, liabilities or other matters referred
to in or covered by said section, and the indemnification provided for therein shall not be deemed exclusive of any other rights
to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested 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, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such person.
Liability Insurance
We have also
obtained directors’ and officers’ liability insurance, which insures against liabilities that our directors or officers
may incur in such capacities.
Item 16.
Exhibits and Financial Statement Schedules.
(a)
Exhibits
. The following exhibits are included
herein or incorporated herein by reference.
Exhibit
Number
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|
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1.1*
|
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Form of Underwriting Agreement
|
|
|
|
1.2
|
|
Controlled Equity Offering
SM
Sales Agreement, dated March 28, 2013, between Enzo Biochem, Inc. and Cantor Fitzgerald & Co., as amended by the Amendment No. 1 to Sales Agreement, dated December 31, 2014,
(incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K of Enzo Biochem, Inc. filed with the SEC on March 28, 2013,
and by reference to Exhibit 1.1 to the Current Report on
Form 8-K of Enzo Biochem, Inc. filed with the SEC on December 31, 2014)
|
|
|
|
4.1
|
|
Common Stock Specimen Certificate (incorporated by reference to Exhibit 4.6 to the registration statement on Form S-8 of Enzo Biochem, Inc. (No. 333-123712))
|
|
|
|
4.2*
|
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Form of Certificate of Designations of Preferred Stock
|
|
|
|
4.3
|
|
Form of Indenture between Enzo Biochem, Inc. and one or more trustees to be named (incorporated by reference to Exhibit 4.3 to the registration statement on Form S-3 of Enzo Biochem, Inc. (No. 333-190321))
|
|
|
|
4.4*
|
|
Form of Note
|
|
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|
4.5*
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate
|
|
|
|
4.6*
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate
|
|
|
|
4.7*
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate
|
|
|
|
4.8*
|
|
Form of Deposit Agreement
|
|
|
|
4.9*
|
|
Form of Unit Agreement
|
|
|
|
5.1
|
|
Opinion of McDermott Will & Emery LLP, counsel to the registrant
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
23.2
|
|
Consent of McDermott Will & Emery LLP (contained in Exhibit 5.1)
|
|
|
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24.1
|
|
Power of attorney (contained on page II-5)
|
|
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25.1
†
|
|
Form T-1 Statement of Eligibility of Trustee
|
* To be filed by amendment or by a report filed under
the Securities Exchange Act of 1934, as amended, and incorporated herein by reference, if applicable.
†
To be filed separately under electronic
form type 305B2, if applicable.
(b)
Financial Statement Schedules
. None.
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 prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(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 a 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include
any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided,
however
, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the
registrant is relying on Rule 430B:
(A) Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section
10(a) of the Securities Act of 1933, shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii) If the
registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use.
(5) That, for the purpose
of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free
writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes
of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) To file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture
Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the
Act.
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 SEC
such indemnification is against public policy as expressed in the Securities Act of 1933 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 Securities Act of 1933
and will be governed by the final adjudication of such issue.
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 1st day of September, 2017.
|
ENZO BIOCHEM, INC.
|
|
|
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By:
|
/s/ Elazar Rabbani, Ph.D.
|
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Name: Elazar Rabbani, Ph.D.
|
|
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Title: Chairman, Chief Executive Officer and Secretary
|
|
|
(Principal Executive Officer)
|
|
|
|
|
|
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By:
|
/s/ Barry W. Weiner
|
|
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Name: Barry W. Weiner
|
|
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Title: President, Chief Financial Officer, Treasurer and Director
|
|
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(Principal Financial and Accounting Officer)
|
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POWER OF ATTORNEY
KNOW ALL PERSONS BY
THESE PRESENT, that each person whose signature appears below constitutes and appoints Elazar Rabbani and Barry W. Weiner, and
each or either of them, his true and lawful attorney-in-fact and agent, 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
or any abbreviated registration statement and any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities
for which registration is sought) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the SEC, granting unto 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 connection therewith, 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 or substitute, 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 by the following persons in the capacities and on the
dates indicated:
/s/ Elazar Rabbani, Ph.D.
|
|
Chairman, Chief Executive Officer and Secretary
|
|
|
Elazar Rabbani, Ph.D.
|
|
(Principal Executive Officer)
|
|
September 1, 2017
|
|
/s/ Barry W. Weiner
|
|
President, Chief Financial Officer, Treasurer and Director
|
|
September 1, 2017
|
Barry W. Weiner
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Dr. Bruce A. Hanna, Ph.D.
|
|
Director
|
|
September 1, 2017
|
Dr. Bruce A. Hanna, Ph.D.
|
|
|
|
|
|
/s/ Dov Perlysky
|
|
Director
|
|
September 1, 2017
|
Dov Perlysky
|
|
|
|
|
|
|
|
|
|
/s/ Gregory Bortz
|
|
Director
|
|
September 1, 2017
|
Gregory Bortz
|
|
|
|
|
EXHIBIT INDEX
Exhibit
Number
|
|
|
1.1*
|
|
Form of Underwriting Agreement
|
|
|
|
1.2
|
|
Controlled Equity Offering
SM
Sales Agreement, dated March 28, 2013, between Enzo Biochem, Inc. and Cantor Fitzgerald & Co., as amended by the Amendment No. 1 to Sales Agreement, dated December 31, 2014, (incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K of Enzo Biochem, Inc. filed with the SEC on March 28, 2013, and by reference to Exhibit 1.1 to the Current Report on Form 8-K of Enzo Biochem, Inc. filed with the SEC on December 31, 2014)
|
|
|
|
4.1
|
|
Common Stock Specimen Certificate (incorporated by reference to Exhibit 4.6 to the registration statement on Form S-8 of Enzo Biochem, Inc. (No. 333-123712))
|
|
|
|
4.2*
|
|
Form of Certificate of Designations of Preferred Stock
|
|
|
|
4.3
|
|
Form of Indenture between Enzo Biochem, Inc. and one or more trustees to be named (incorporated by reference to Exhibit 4.3 to the registration statement on Form S-3 of Enzo Biochem, Inc. (No. 333-190321))
|
|
|
|
4.4*
|
|
Form of Note
|
|
|
|
4.5*
|
|
Form of Common Stock Warrant Agreement and Warrant Certificate
|
|
|
|
4.6*
|
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate
|
|
|
|
4.7*
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate
|
|
|
|
4.8*
|
|
Form of Deposit Agreement
|
|
|
|
4.9*
|
|
Form of Unit Agreement
|
|
|
|
5.1
|
|
Opinion of McDermott Will & Emery LLP, counsel to the registrant
|
|
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
23.2
|
|
Consent of McDermott Will & Emery LLP (contained in Exhibit 5.1)
|
|
|
|
24.1
|
|
Power of attorney (contained on page II-5)
|
|
|
|
25.1
†
|
|
Form T-1 Statement of Eligibility of Trustee
|
* To be filed by amendment or by a report
filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference, if applicable.
†
To be filed separately
under electronic form type 305B2, if applicable.
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