If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (“Securities
Act”), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
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. ☐
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. ☐
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. ☐
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. ☐
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.
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. ☐
The selling stockholders named
in this prospectus 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 the selling stockholders are not soliciting offers to buy these
securities in any jurisdiction where the offer or sale is not permitted.
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a “shelf” registration
process. Under the shelf registration process, the Selling Stockholders may, from time to time, offer and sell the Shares described in
this prospectus in one or more offerings. Information about the Selling Stockholders may change over time. We will not receive any of
the proceeds from the sale of our Common Stock by the Selling Stockholders under this prospectus, although we will receive proceeds from
any portion of the Warrants that are exercised through the payment of their respective exercise price in cash.
We may also file a prospectus
supplement or post-effective amendment to the registration statement of which this prospectus forms a part that may contain material information
relating to these offerings. The prospectus supplement or post-effective amendment may also add, update, or change information contained
in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable
prospectus supplement or post-effective amendment, you should rely on the prospectus supplement or post-effective amendment, as applicable.
Before purchasing any securities, you should carefully read this prospectus, any post-effective amendment, and any applicable prospectus
supplement, together with the additional information described under the heading “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference.” 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.” 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.
Neither we nor the Selling
Stockholders have authorized anyone to provide you with any information or to make any representations other than those contained in or
incorporated by reference into this prospectus, any post-effective amendment, or any applicable prospectus supplement prepared by or on
behalf of us or to which we have referred you. We and the Selling Stockholders take no responsibility for and can provide no assurance
as to the reliability of any other information that others may give you. The Selling Stockholders will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus,
any post-effective amendment and any applicable prospectus supplement to this prospectus is accurate only as of the date on its respective
cover. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus contains,
and any post-effective amendment or any prospectus supplement may contain, market data and industry statistics and forecasts that are
based on independent industry publications and other publicly available information. We believe this information is reliable as of the
applicable date of its publication, however, we have not independently verified the accuracy or completeness of the information included
in or assumptions relied on in these third-party publications. In addition, the market and industry data and forecasts that may be included
in or incorporated by reference into this prospectus, any post-effective amendment or any prospectus supplement may involve estimates,
assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the
heading “Risk Factors” contained in this prospectus, any post-effective amendment, the applicable prospectus supplement and
otherwise incorporated by reference herein. Accordingly, investors should not place undue reliance on this information.
An investment in our securities
involves certain risks that should be carefully considered by prospective investors. See “Risk Factors.”
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 an integrated diagnostics, clinical
lab, and life sciences company focused on delivering and applying advanced technology capabilities to produce affordable reliable products
and services that enable our customers to meet their clinical needs. Through a connection with the market, we provide advanced biotechnology
solutions to the global community as affordable and flexible quality products and services. We develop, manufacture and sell our proprietary
technology solutions and platforms to clinical laboratories, specialty clinics, researchers and physicians globally. Enzo’s structure
and business strategy represent the culmination of years of extensive planning and work. The Company has the ability to offer low
cost, high performance products and services for diagnostic testing, which ideally positions us 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
develops low cost diagnostic platform products and related services. Our platform development includes automation-compatible reagent systems
and associated products for sample collection and processing through analysis. We develop affordable products and services to improve
healthcare, one of the greatest challenges today. Enzo combines over 40 years of expertise in technology development with assay development
capabilities and diagnostic testing services to create high performance, cost-effective, and open assay solutions. The ability to combine
these assets in one company is uncommon. With our strong intellectual property portfolio integrated with assay development know-how, production,
distribution, validation and services capabilities, we have enabled sustainable products and services for a market that is facing increasing
pressure in costs and reimbursement.
Enzo
technology solutions and platforms and unique operational structure are designed to reduce overall healthcare costs for both government
and private insurers. Our proprietary technology platforms reduce our customers’ need for multiple, specialized instruments, and
offer a variety of high 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.
In
the course of our research and development activities, we have built a substantial portfolio of intellectual property assets, comprised
of approximately 472 issued patents worldwide and over 64 pending patent applications, along with extensive enabling technologies and
platforms.
Operating Segments
Below are brief descriptions
of our two operating segments. For a more detailed description, see Note 11 – Segment Reporting in the Notes to Consolidated Financial
Statements in our Quarterly Report on Form 10-Q filed on June 14, 2023:
Enzo Clinical Services 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 Clinical Laboratory Improvement Amendments of 1988 (“CLIA”) certified and College
of American Pathologists (“CAP”) accredited 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 and 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, New Jersey and Connecticut, two free standing
“STAT” or rapid response laboratories in New York City and Connecticut, an in-house logistics department, and an information
technology department. Under our license in New York State, we are able to offer testing services to clinical laboratories and physicians
nationwide.
The Clinical Laboratory Services
segment is impacted by various risk factors, including among others, loss of a substantial portion of revenues from COVID-19 testing,
reduced reimbursements from third party payers for testing performed and from recent health care legislation.
On March 16, 2023, the Company
entered into an Asset Purchase Agreement with respect to the sale of assets and assignment of certain liabilities of the Clinical Labs
division. The sale is expected to close in July 2023, at which time we will exit the clinical laboratory services business.
Enzo Products manufactures,
develops and markets products and tools for 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. Information regarding our technologies can be found in the “Core Technologies” section of
our most recently filed Form 10-K. 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 also the life sciences markets 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.
Recent Developments
Clinical Labs Purchase Agreement
On March 16, 2023, the Company
filed a Form 8-K indicating that it and Enzo Clinical Labs, Inc. (the “Subsidiary” and, together with the Company, the “Seller”)
entered into an Asset Purchase Agreement (the “Purchase Agreement”) with Laboratory Corporation of America Holdings, a Delaware
corporation (the “Buyer”). Pursuant to the Purchase Agreement, the Seller has agreed to sell substantially all operating assets
and assign certain liabilities of its clinical labs business (the “Business”) to the Buyer which are necessary to operate
the Business in exchange for approximately $146,000,000 in cash (subject to certain adjustments), on and subject to the terms and conditions
set forth therein (such transaction, the “Transaction”).
The Purchase Agreement contains
customary representations, warranties, covenants and termination rights for a transaction of this nature, including, among other things,
customary covenants: (i) relating to the conduct of the Business between the signing of the Purchase Agreement and the closing of
the Transaction and (ii) regarding the efforts of the parties to cause the Transaction to be consummated, including obtaining certain
consents and approvals. The consummation of the Transaction is subject to the satisfaction or waiver of customary closing conditions,
including the expiration or termination of any required waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(“HSR”). The parties to the Purchase Agreement made the filings required under the HSR on March 30, 2023, and the waiting
period under the HSR expired on May 1, 2023 at 11:59 p.m. Eastern time.
The Purchase Agreement also
includes customary termination provisions for both the Company and Buyer and provides that, in connection with the termination of the
Purchase Agreement under specified circumstances, including termination by the Company to accept and enter into a definitive agreement
with respect to an unsolicited Superior Proposal, the Company will be required to pay Buyer a termination fee of $5,000,000 or reimbursement
of Buyer’s expenses of up to $5,000,000.
Subject to the terms and conditions
stated in the Purchase Agreement, Buyer will be obligated to pay a fee to the Company for each day until the closing of the Transaction.
At the closing of the Transaction, such fee will be wholly or partially credited against the purchase price.
On
April 13, 2023, the Company filed a preliminary proxy statement (the “Preliminary Proxy Statement”) and, on April 24, 2023,
the Company filed a definitive proxy statement (the “Definitive Proxy Statement” and, together with the Preliminary Proxy
Statement, the “Proxy Statement”) with the SEC and commenced mailing of the Proxy Statement to the Company’s shareholders
to solicit the approval of the Transaction and adopt the Purchase Agreement at a special meeting of shareholders held on May 22, 2023
(the “Special Meeting”). At the Special Meeting, the Company’s shareholders approved the Transaction and adopted the
Purchase Agreement.
The
sale is expected to close in July 2023, at which time we will exit the clinical laboratory services business. There can be no assurances
that the Purchase Agreement will close and if it does close, the exact proceeds to be received by the Company.
Credit Facility
On
March 31, 2023, the Company entered into a Revolving Loan and Security Agreement (the “Credit Facility”) among the Subsidiary
and Enzo Life Sciences, Inc., as borrowers (the “Borrowers”), the Company and certain of its domestic subsidiaries, as guarantors
(the “Guarantors”), and Gemino Healthcare Finance, LLC (d/b/a SLR Healthcare ABL), as lender.
The
Credit Facility provides for a maximum $8 million revolving line of credit. The commitment under the Credit Facility will expire after
one year and all outstanding borrowings under the Credit Facility will become due and payable at that time. Prior to its expiration, the
Borrowers will prepay and terminate the Credit Facility upon closing of the Purchase Agreement, and a standard termination fee will be
payable.
The
Credit Facility is secured by a first priority perfected security interest in the collateral. The collateral includes substantially all
the U.S. assets of the Borrowers and the Guarantors, including among other assets, cash, receivables, inventory and fixed assets.
Borrowings
under the Credit Facility accrue interest at the rate per annum equal to Term SOFR (Secured Overnight Financing Rate) for a three-month
tenor plus 5.50%. Other fees, such as an unused line fee and a collateral monitoring fee, also apply. The Borrowers borrowed $5.5 million
under the Credit Facility upon the closing thereof.
The
Credit Facility includes customary affirmative and negative covenants for revolving credit facilities of this nature, including certain
limitations on the incurrence of additional indebtedness and liens. In addition, the Credit Facility requires the Borrowers to maintain
certain minimum liquidity levels as of the last day of each calendar month. The levels decline over time, starting at $4 million as of
April 30, 2023, then $3 million as of May 31, 2023 and $2 million as of the end of each month thereafter. On June 12, 2023, SLR and the
Company agreed to a waiver limited to the specific event of default with respect to the minimum liquidity covenant.
The
Credit Facility includes customary events of default for revolving credit facilities of this nature, including failure to pay outstanding
principal or interest, failure of applicable representations or warranties to be correct in any material respects, failure to perform
any other term, covenant or agreement, certain defaults upon obligations under the Employee Retirement Income Security Act, bankruptcy
or a change in control. Such events of default would require the repayment of any outstanding borrowings and the termination of the right
to borrow additional funds under the Credit Facility.
Ransomware Attack
On April 6, 2023, the Company experienced a ransomware
attack that impacted certain critical information technology systems. In response, we promptly deployed containment measures, including
disconnecting our systems from the internet, launched an investigation with assistance from third-party cybersecurity experts, and notified
law enforcement. We adhered to our disaster recovery plan, which enabled us to maintain operations throughout the incident response process.
The Company’s facilities are open, and continue to provide services to patients and partners. The Company has incurred, and may
continue to incur, certain expenses related to this attack, including expenses to respond to, remediate and investigate this matter. Further,
the Company remains subject to risks and uncertainties as a result of the incident, including as a result of the data that was accessed
or exfiltrated from the Company’s network. Additionally, security and privacy incidents have led to, and may continue to lead to,
additional regulatory scrutiny and class action litigation exposure. We are in the process of evaluating the full scope of the costs and
related impacts of this incident. During the disaster recovery, our ability to perform clinical reference testing was severely curtailed
and we were forced to outsource much of the testing to third parties, including Labcorp. This negatively impacted the 2023 period’s
services revenue and increased the cost of outsourcing the testing to third parties.
The Company has identified several purported class
action complaints that have been filed against Enzo Biochem, Inc. and Enzo Clinical Labs, Inc. arising from the recent ransomware attack
and data breach on Enzo’s computer network. All of the actions that we have identified were commenced in the United States
District Court for the Eastern District of New York. The complaints generally allege that Enzo failed to adequately secure and safeguard
the private and confidential information of the class members entrusted to it. The complaints assert various common law claims and
seek money damages, restitution and injunctive relief. To date, neither Enzo Biochem, Inc. nor Enzo Clinical Labs, Inc. has been
served with a copy of the summons and complaint in any of the actions.
Controlled Equity Offering
In May 2023, the Company entered into a sales agreement
(the “Sales Agreement”) with B. Riley Securities, Inc. as sales agent (“Riley”). Under the Sales Agreement, the
Company may offer and sell, from time to time, through Riley, shares of the Company’s common stock, par value $0.01 per share (“Shares”)
having an aggregate offering price of up to $30 million. The Company pays Riley a commission of 3.0% of the aggregate gross proceeds received
under the Sale Agreement. The Company is not obligated to make any sales of Shares under the Sales Agreement. The offering of Shares pursuant
to the Sales Agreement will terminate upon the earlier of (a) the sale of all of the Shares subject to the Sales Agreement or (b) the
termination of the Sales Agreement by Riley or the Company, as permitted therein. To date, there have been no sales of Shares under the
Sales Agreement. In May 2023, the Company filed with the SEC a “shelf” registration and sales agreement prospectus covering
the Sales Agreement and issuance and sale of our Common Stock that may be sold under that agreement in an aggregate amount of up to $30
million. A total of $150 million of securities, including those covered by the Sales Agreement, may be sold under the shelf registration
when it is declared effective.
Private Placement of Securities and Warrants (“Private Placement”)
Securities Purchase
Agreement
On May 19, 2023, the Company
entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with each of the purchasers that are parties
thereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”) and JGB
Collateral, LLC, a Delaware limited liability company, as collateral agent for the Purchasers (the “Agent”). Pursuant to the
Securities Purchase Agreement, the Company agreed to sell to the Purchasers (i) 10% Original Issue Discount Secured Convertible Debentures
with an aggregate principal amount of $7,608,696 and (ii) warrants to purchase up to 1,000,000 shares of the Company’s common stock,
par value $0.01 per share, for an exercise price of $2.31 per share, the average of the three (3) daily volume weighted average prices
of the Company’s common stock as defined in the Securities Purchase Agreement prior to the closing date (the “JBG Warrants”),
subject to adjustments as set forth in the JBG Warrants, for a total purchase price of $7,000,000. The Securities Purchase Agreement contains
customary representations, warranties and covenants. In connection with the Securities Purchase Agreement, the Company and the Purchasers
entered into a Registration Rights Agreement and the Company, certain of the Company’s domestic subsidiaries, the Purchasers and
the Agent entered into a Security Agreement. The transactions contemplated by the Securities Purchase Agreement were consummated on May
19, 2023.
For more information
see the section entitled “Private Placement of Securities.”
Corporate Information
Our offices are located at
81 Executive Blvd., Suite 3, Farmingdale, New York 11735, and our telephone number is (631) 755-5500. 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.
The Offering
| Issuer |
Enzo Biochem, Inc. |
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Shares of Common Stock offered
by the Selling Stockholders |
Up to 3,527,808 shares (the “Shares”). |
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Shares of Common Stock
outstanding prior to this offering |
49,728,084 shares as of June 15, 2023 |
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| Use of proceeds |
We will not receive any proceeds from the resale of the Shares by the Selling Stockholders in this offering. We will, however, receive proceeds from any portion of the Warrants that are exercised through the payment of their respective exercise price in cash. For additional information, refer to the section entitled “Use of Proceeds.” |
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| Terms of this offering |
The Selling Stockholders may sell, transfer or otherwise dispose of any or all of the Shares offered by this prospectus from time to time on the New York Stock Exchange or any other stock exchange, market or trading facility on which the Shares are traded, or in private transactions. Th Shares may be offered and sold or otherwise disposed of by the Selling Stockholders at fixed prices, market prices prevailing at the time of sale, prices related to prevailing market prices, or privately negotiated prices. See the section entitled “Plan of Distribution.” |
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| Risk factors |
An investment in our common stock involves a high degree of risk. See
“Risk Factors” beginning on page 6 of this prospectus, the “Risk Factors” section in our most
recent Annual Report on Form 10-K and any subsequent Quarterly Reports filed on Form 10-Q, and any amendment or update
thereto reflected in subsequent filings with the SEC, which are incorporated by reference herein, and other information included in
this prospectus supplement, the accompanying prospectus and the documents incorporated by reference in this prospectus supplement
and the accompanying prospectus for a discussion of factors you should carefully consider before deciding to invest in our common
stock. |
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| Market for our common stock |
Our Common Stock is traded on the New York Stock Exchange under the symbol “ENZ.” |
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.
Risks Related to the Company and its Recently
Announced Asset Purchase Agreement
The Company may not be able to continue
as a going concern.
During the nine months ended
April 30, 2023, the Company incurred a net loss of $37.1 million and used cash in operating activities of $19.9 million, and had as of
April 30, 2023 a working capital deficit of $10.2 million. The Company believes that based on its fiscal 2023 forecast, its current cash
and cash equivalents level is not sufficient for its foreseeable liquidity and capital resource needs over at least the next twelve (12)
months, which conditions raise substantial doubt about the Company’s ability to continue as a going concern for one year after the
date that the April 30, 2023 unaudited interim financial statements were issued. In response to these conditions, the Company evaluated
and acted upon various financing strategies to obtain sufficient additional liquidity to meet its operating and capital requirements for
the next twelve months following the date of issuance of the unaudited interim consolidated financial statements.
Specifically, the Company
entered into a revolving line of credit for up to $8 million based on eligible receivables in March 2023, sold 10% convertible debentures
and warrants for proceeds of $7 million in May 2023, and as previously disclosed entered into an agreement to sell substantially all the
operating assets and assign certain liabilities of our clinical laboratory business in March, with an expected closing in July 2023. Additionally,
in May 2023, we filed a Form S-3 “shelf” registration statement and sales agreement prospectus covering the offering, issuance
and sale of our Common Stock that can be issued and sold under the sales agreement in an aggregate amount of up to $30 million.
There can be no assurance
that these capital raising strategies will ultimately prove to be successful, and the Company may need to raise additional capital during
the current fiscal year. Our liquidity plans are subject to a number of risks and uncertainties, some of which are outside our control.
The revolving line of credit agreement and the 10% convertible debenture securities are dependent on our closing the asset sale with Labcorp
within a given time frame. Macroeconomic conditions could limit our ability to successfully execute our business plans and therefore adversely
affect our liquidity plans. The April 30, 2023 unaudited interim financial statements do not include any adjustments to reflect the possible
future effects on the recoverability and classification of assets or the amounts and classifications of liabilities that may result should
the Company be unable to continue as a going concern.
There can be no guarantee that the asset
sale will be completed and, if not completed, we may have to file for bankruptcy and liquidation.
The consummation of the Asset
Sale is subject to the satisfaction or waiver of various conditions, including the approval of the Asset Sale by our stockholders, which
we obtained on May 22, 2023. We cannot guarantee that the closing conditions set forth in the Asset Purchase Agreement will be satisfied.
If we are unable to satisfy our closing conditions under the Purchase Agreement or if other mutual closing conditions are not satisfied,
Buyer will not be obligated to complete the Asset Sale. If the Asset Sale is not completed, our board of directors, in discharging its
fiduciary obligations to our stockholders, will evaluate other strategic alternatives that may be available, which alternatives may not
be as favorable to our stockholders as the Asset Sale and may include a bankruptcy and liquidation of the Company.
The Company has incurred and will continue
to incur substantial expenses, including transaction-related costs, pending the asset sale.
Claims, liabilities and expenses
from operations, such as operating costs, salaries, directors’ and officers’ insurance, payroll and local taxes, legal, accounting
and consulting fees and office expenses will continue to be incurred by us during the pendency of the Asset Sale. Further, Enzo has incurred,
and expects to continue to incur, a number of non-recurring transaction-related costs in initiating and completing the Asset Sale. Non-recurring
transaction costs include, but are not limited to, fees paid to Enzo’s financial, legal and accounting advisors, filing fees and
printing costs. These fees and costs have been, and will continue to be, substantial. We cannot estimate what the aggregate of these expenses
will be and these costs may be higher than expected. There can be no assurance of the exact amount of net cash proceeds Enzo will
receive from the Asset Sale or the exact timing at which it will receive such proceeds. Therefore, it is uncertain the extent to which
our financial condition and operations will benefit from or improve as a result of or after the Asset Sale.
The Purchase Agreement also
includes customary termination provisions for both the Company and Buyer and provides that, in connection with the termination of the
Purchase Agreement under specified circumstances, including termination by the Company to accept and enter into a definitive agreement
with respect to an unsolicited Superior Proposal, the Company will be required to pay Buyer a termination fee of $5 million, or reimbursement
of Buyer’s expenses of up to $5 million.
Subject to the terms and conditions
stated in the Purchase Agreement, after shareholder approval of the Transaction, which occurred on May 22, 2023, Buyer is be obligated
to pay a fee to the Company for each day after the date of such approval until the closing of the Transaction. At the closing of the Transaction,
such fee will be wholly or partially credited against the purchase price. On May 31, 2023, the Company received the May portion of the
fee.
There can be no assurance
that the Purchase Agreement will close and that if it does close, the exact proceeds to be received by the Company.
Risks Related to 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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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. |
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.
Except in the case of a potential
distribution of cash in connection with the Clinical Labs disposition discussed elsewhere herein, 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.
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 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.
General Risk Factors
Enzo has concluded that there are material
weaknesses in its internal control over financial reporting, which, if not remediated, could materially adversely affect its ability to
timely and accurately report its results of operations and financial condition. The accuracy of Enzo’s financial reporting depends
on the effectiveness of its internal controls over financial reporting.
Internal controls over financial
reporting can provide only reasonable assurance with respect to the preparation and fair presentation of financial statements and may
not prevent or detect misstatements. Failure to maintain effective internal controls over financial reporting, or lapses in disclosure
controls and procedures, could undermine the ability to provide accurate disclosure (including with respect to financial information)
on a timely basis, which could cause investors to lose confidence in Enzo’s disclosures (including with respect to financial information),
require significant resources to remediate the lapse or deficiency, and expose it to legal or regulatory proceedings. In connection with
our April 30, 2023 unaudited consolidated financial statements, Enzo’s management identified a deficiency, which it considers to
be a “material weakness,” which, could reasonably result in a material misstatement in the Company’s financial statements.
The Company has begun remediation measures during and after the April 30, 2023 period end and continues to assess additional necessary
remediation measures. The material weakness cannot be considered completely remediated until the applicable controls have operated for
a sufficient period of time and management has concluded, through testing, that these controls are operating effectively. Enzo cannot
guarantee that it will be successful in remediating the material weakness it identified or that its internal control over financial reporting,
as modified, will enable it to identify or avoid material weaknesses in the future.
We rely on network
and information systems and other technology whose failure or misuse could cause, and has caused, a disruption of services or loss or
improper disclosure of personal data, business information, including intellectual property, or other confidential information, resulting
in increased costs, loss of revenue or other harm to our business.
Network
and information systems and other technologies, including those related to the Company’s network management, are important to its
business activities. The Company also relies on third party providers for certain technology and “cloud-based” systems and
services that support a variety of business operations. Network and information systems-related events affecting the Company’s systems,
or those of third parties upon which the Company’s business relies, such as computer compromises, cyber threats and attacks, ransomware
attacks, computer viruses, worms or other destructive or disruptive software, process breakdowns, denial of service attacks, malicious
social engineering or other malicious activities, or any combination of the foregoing, as well as power outages, equipment failure, natural
disasters (including extreme weather), terrorist activities, war, human or technological error or malfeasance that may affect such systems,
could result in disruption of the Company’s business and/or loss, corruption or improper disclosure of personal data, business information,
including intellectual property, or other confidential information. In addition, any design or manufacturing defects in, or the improper
implementation of, hardware or software applications the Company develops or procures from third parties could unexpectedly compromise
information security. In recent years, there has been a rise in the number of cyber-attacks and ransomware attacks on companies’
network and information systems, and such attacks have become more sophisticated, targeted and difficult to detect and prevent against.
As a result, the risks associated with such an event continue to increase, particularly as the Company’s digital businesses expand.
The Company’s security measures and internal controls that are designed to protect personal data, business information, including
intellectual property, and other confidential information, to prevent data loss, and to prevent or detect security breaches, have not
always provided, and cannot provide, absolute security and have at times failed and may not be successful in preventing these events from
occurring, particularly given that techniques used to access, disable or degrade service, or sabotage systems change frequently, and any
network and information systems-related events have required and could continue to require the Company to expend significant resources
to remedy such event. Moreover, the development and maintenance of these measures is costly and requires ongoing monitoring and updating
as technologies change and efforts to overcome security measures become more sophisticated. The Company’s cyber risk insurance may
not be sufficient to cover all losses from any future breaches of our systems.
A
significant cyber attack, ransomware attack, failure, compromise, breach or interruption of the Company’s systems, or those of third
parties upon which its business relies, could result in a disruption of its operations, customer, audience or advertiser dissatisfaction,
damage to its reputation or brands, regulatory investigations and enforcement actions, lawsuits, remediation costs, a loss of customers,
advertisers or revenues and other financial losses. If any such failure, interruption or similar event results in the improper disclosure
of information maintained in the Company’s information systems and networks or those of its vendors, including financial, personal,
credit card, confidential and proprietary information relating to personnel, customers, vendors and the Company’s business, including
its intellectual property, the Company could also be subject to liability under relevant contractual obligations and laws and regulations
protecting personal data and privacy. In addition, media or other reports of perceived security vulnerabilities to our systems or those
of third parties upon which the Company’s business relies, even if nothing has actually been attempted or occurred, could also adversely
impact our brand and reputation and materially affect our business.
On
April 6, 2023, the Company experienced a ransomware attack that impacted certain critical information technology systems. The Company
has incurred, and may continue to incur, certain expenses related to this attack and remains subject to risks and uncertainties as a result
of the incident, including as a result of the data that was accessed or exfiltrated from the Company’s network. Additionally, security
and privacy incidents have led to, and may continue to lead to, additional regulatory scrutiny and class action litigation exposure. This
incident severely curtailed our ability to perform clinical reference testing and we were forced to outsource much of the testing to third
parties, including Labcorp, which negatively impacted the 2023 period’s services revenue and increased the cost of outsourcing the
testing to third parties. See “Recent Developments – Ransomware Attack” for additional information.
Cyber security risks and the failure to
maintain the confidentiality, integrity, and availability of our computer hardware, software, and Internet applications and related tools
and functions could result in damage to the Company’s reputation and/or subject the Company to costs, fines, or lawsuits.
The integrity and protection
of our own data, and that of our customers and employees, is critical to the Company’s business. The regulatory environment governing
information, security and privacy laws is increasingly demanding and continues to evolve. Maintaining compliance with applicable security
and privacy regulations may increase the Company’s operating costs and/or adversely impact the Company’s ability to market
its products and services to customers. Although the Company’s computer and communications hardware is protected through physical
and software safeguards, it is still vulnerable to cyber threat actors, fire, storm, flood, power loss, earthquakes, telecommunications
failures, physical or software break-ins, software viruses, and similar events. These events could lead to the unauthorized access, disclosure
and use of non-public information. The techniques used by criminal elements to attack computer systems are sophisticated, change frequently
and may originate from less regulated and remote areas of the world. As a result, the Company may not be able to address these techniques
proactively or implement adequate preventative measures. If the Company’s computer systems are compromised, it could be subject
to fines, damages, litigation, and enforcement actions, customers could curtail or cease using its applications, and the Company could
lose trade secrets, the occurrence of which could harm its business.
FORWARD-LOOKING STATEMENTS
This prospectus, the documents
we have filed with the SEC that are 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.
Forward-looking statements include information concerning possible or assumed future results of operations of our business, the expected
completion and timing of the Transaction and other information relating to the Transaction, including pro forma information regarding
the Company assuming the Transaction is consummated, including our pro forma results of operations and financial condition as reflected
in our unaudited pro forma condensed consolidated financial information incorporated by reference in this prospectus, and may involve
known and unknown risks over which we have no control, including, without limitation: (i) the satisfaction of the conditions to consummate
the Transaction; (ii) the occurrence of any event, change or other circumstance that could give rise to the termination of the Purchase
Agreement; (iii) the outcome of any legal proceedings that may be instituted against us and others following the announcement of the Purchase
Agreement; (iv) the amount of the costs, fees, expenses and charges related to the Transaction; (v) the effect of the announcement of
the Transaction on our customer relationships, operating results and business generally, including the ability to retain key employees;
and (vi) the amount of cash we will hold after the Transaction or our net proceeds from the Transaction. 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 documents we have filed with the SEC that are incorporated by reference herein and any related free writing 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.
USE OF PROCEEDS
All proceeds from the resale
of the Shares of Common Stock offered by this prospectus will belong to the Selling Stockholders. We will not receive any proceeds from
the resale of the Shares of Common Stock by the Selling Stockholders. We will, however, receive proceeds from any portion of the Warrants
that are exercised through the payment of their respective exercise price in cash. We intend to use the proceeds, if any, for general
corporate purposes.
The Selling Stockholders will
pay any underwriting fees, discounts, selling commissions, stock transfer taxes and certain legal expenses incurred by such Selling Stockholder
in disposing of its Shares of Common Stock, and we will bear all other costs, fees and expenses incurred in effecting the registration
of the securities covered by this prospectus, including, without limitation, all registration and filing fees, Nasdaq listing fees and
fees and expenses of our counsel and our independent registered public accountants.
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 June 15, 2023, we had outstanding 49,728,084 shares of common stock and no shares of preferred stock. As of June 15, 2023, we had
approximately 741 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 Equiniti.
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.
PRIVATE
PLACEMENT OF SECURITIES
JGB Private Placement
On May 19, 2023, the Company
entered into a Securities Purchase Agreement with the Purchasers and JGB Collateral, LLC, pursuant to which the Company agreed to sell
to the Purchasers (i) Debentures with an aggregate principal amount of $7,608,696 and (ii) the JGB Warrants, for a total purchase price
of $7,000,000. The Securities Purchase Agreement contains customary representations, warranties and covenants. The transactions contemplated
by the Securities Purchase Agreement were consummated on May 19, 2023.
Debentures
The Debentures bear interest
at a rate of 10% per annum (which interest rate is increased to 18% per annum five days after the occurrence and continuance of an Event
of Default (as defined in the Debentures)), have a maturity date of May 20, 2024 and are convertible, at any time after their issuance
date at the option of the Purchasers, into shares of Common Stock at a conversion price equal to $3.01 per share (the “Conversion
Price”), subject to adjustment as set forth in the Debentures. Following the consummation of the Company’s sale of substantially
all of the assets and business of Enzo Clinical Labs, Inc., a wholly-owned subsidiary of the Company, to Laboratory Corporation of American
Holdings pursuant to the Asset Purchase Agreement, dated March 16, 2023, and as further described in the Company’s definitive Proxy
Statement on Schedule 14A filed with the U.S. Securities and Exchange Commission on April 24, 2023 (the “Asset Sale”), the
Company shall either, at the option of the Company upon written notice delivered to the Purchasers within three (3) trading days after
the consummation of the Asset Sale, (i) prepay $4,000,000 of the outstanding principal amount of the Debentures (to be applied pro rata
among the outstanding Debentures based on the relative outstanding principal balance of each Debenture) or (ii) deposit $4,000,000 in
cash, as collateral for the Company’s obligations, into a deposit account subject to a deposit account control agreement, among
the Company, the depository bank and the Agent and otherwise acceptable to Agent (in its sole absolute discretion) in form and substance.
The Company’s obligations
under the Debentures may be accelerated, at the Purchasers’ election, upon the occurrence of certain customary events of default.
In the event of a default and acceleration of the Company’s obligations, the Company would be required to pay the greater of (i) the outstanding
principal amount of the Debentures, all accrued and unpaid interest, plus the amount of additional interest that would accrue on such
principal through the date of maturity, divided by the conversion price on the date accelerated payment is either (A) demanded (if demand
or notice is required to create an Event of Default) or otherwise due or (B) paid in full, whichever has a lower conversion price, multiplied
by the VWAP on the date the accelerated payment is either (x) demanded or otherwise due or (y) paid in full, whichever has a higher VWAP,
or (ii) 130% of the outstanding principal amount of the Debentures, plus all accrued and unpaid interest, plus the amount of additional
interest that would accrue on such principal through the date of maturity. Such accelerated payment would also include all other amounts,
costs, expenses or liquidated damages due under the Debentures. The Debentures contain customary representations, warranties and covenants
including among other things and subject to certain exceptions, covenants that restrict the Company from incurring additional indebtedness,
creating or permitting liens on assets, amending its charter documents and bylaws, repurchasing or otherwise acquiring more than a de
minimis number of its Common Stock or equivalents thereof, repaying outstanding indebtedness, paying dividends or distributions, assigning
or selling certain assets, making or holding any investments, and entering into transactions with affiliates.
Security Agreement
and Subsidiary Guarantees
In
connection with the Purchase Agreement, on May 19, 2023, the Company, certain of the Company’s domestic subsidiaries (“Guarantors”),
the Purchasers and the Agent entered into a Security Agreement (the “Security Agreement”), pursuant to which the Company and
the Guarantors granted, for the benefit of the Purchasers, to secure the Company’s obligations under the Purchase Agreement and
the Debentures, (i) second-priority liens on certain collateral (the “SLR Collateral”) that secures on a first-priority basis
the Revolving Loan and Security Agreement between the Company, as borrower, and Gemino Healthcare Finance, LLC d/b/a SLR Healthcare ABL,
as lender (the “Credit Facility”), and (ii) first-priority liens on the collateral (the “Non-SLR Collateral” and
together with the Non-SLR Collateral, the “Collateral”) that does not secure the Credit Facility, in each case subject to
permitted liens described in the Indenture. Upon an event of default under the Security Agreement, subject to the security interests under
the Credit Agreement, the Purchasers may, among other things, take possession of the Collateral and enter any premises where the Collateral,
or any part thereof, is or may be placed and remove the Collateral. In addition, on May 19, 2023, the Company and all of the Guarantors
entered into Subsidiary Guarantees (the “Subsidiary Guarantees”), pursuant to which they guaranteed all of the Company’s
obligations under the Purchase Agreement and the Debentures.
JGB Warrants
The JGB Warrants are exercisable
for five years from May 19, 2023, at an exercise price of $2.31 per share, which is the average of three (3) daily VWAPs prior to the
closing date, subject, with certain exceptions, to adjustments in the event of stock splits, dividends, subsequent dilutive offerings
and certain fundamental transactions, as more fully described in the JGB Warrant.
If, at the time a Purchaser
exercises its JGB Warrant, there is no effective registration statement available for an issuance of the shares underlying the JGB Warrant
to the Purchasers, then in lieu of making the cash payment otherwise contemplated to be made to the Company upon the exercise of the JGB
Warrant, the Purchaser may elect to receive upon exercise (either in whole or in part) on a cashless basis the net number of shares of
Common Stock determined according to a specified formula (as set forth in the JGB Warrant).
Registration Rights
Agreement
In
connection with the Purchase Agreement, on May 19, 2023, the Company and the Purchasers entered into a Registration Rights Agreement,
pursuant to which the Company is obligated to register the shares of Company Common Stock issuable upon exercise of the Debentures and
the Warrants by June 19, 2023 (the “Registration Deadline”). If the Company fails to meet the Registration Deadline or maintain
the effectiveness of the Registration Statement for the required effectiveness period, subject to certain permitted exceptions, the Company
will be required to pay liquidated damages to the Purchasers. The Company also agreed, among other things, to indemnify the selling holders
under the Registration Statement from certain liabilities and to pay all fees and expenses incident to the Company’s performance
of or compliance with the Registration Rights Agreement.
The
foregoing descriptions of the terms of the Purchase Agreement, Debentures, Security Agreement, Subsidiary Guarantees, Warrants and Registration
Rights Agreement and the transactions contemplated thereby do not purport to be complete and are qualified in their entirety by reference
to the Purchase Agreement, form of Debenture, Security Agreement, form of Subsidiary Guarantee, form of Warrant and Registration Rights
Agreement, which are incorporated herein by reference.
SELLING
STOCKHOLDERS
The common stock being offered
by the selling shareholders are those issuable to the selling shareholders, upon the conversion of the Debentures and the exercise of
the warrants. For additional information regarding the issuances of Debentures and warrants, see “Private Placement of Securities”
above. We are registering the shares of common stock in order to permit the selling shareholders to offer the shares for resale from time
to time. Except for the ownership of the Debentures and the warrants, the selling shareholders have not had any material relationship
with us within the past three years.
The table below lists the
selling shareholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling shareholders.
The second column lists the number of shares of common stock beneficially owned by each selling shareholder, based on its ownership of
the Debentures and warrants, as of June 15, 2023, assuming the conversion of the Debentures and the exercise of the warrants held by the
selling shareholders on that date, without regard to any limitations on exercises.
The third column lists the
shares of common stock being offered by this prospectus by the selling shareholders.
In accordance with the terms
of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale of the sum of the maximum
number of shares of common stock issuable upon conversion of the Debentures and the exercise of the warrants, determined as if the outstanding
Debentures and warrants were converted or exercised, as applicable, in full as of the trading day immediately preceding the date this
registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination
and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the
warrants. The fourth column assumes the sale of all of the shares offered by the selling shareholders pursuant to this prospectus.
Under the terms of the Debentures
and warrants, a selling shareholder may not convert such Debentures or exercise the such warrants, as applicable, to the extent such conversion
or exercise would cause such selling shareholder, together with its affiliates and attribution parties, to beneficially own a number of
shares of common stock which would exceed 4.99% of our then outstanding common stock following such conversion or such exercise, excluding
for purposes of such determination shares of common stock issuable upon exercise of such Debentures and such warrants which have not been
exercised. The number of shares in the second and fourth columns do not reflect this limitation. The selling shareholders may sell all,
some or none of their shares in this offering. See “Plan of Distribution.”
| Name of Selling Stockholder(1) | |
Number of Shares of Common Stock Beneficially Owned Prior to Offering(2) | | |
Percentage of Common Stock Beneficially Owned Prior to Offering(3)(4) | | |
Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus(5) | | |
Number of Shares of Common Stock Beneficially Owned After Offering(3) | | |
Percentage of Common Stock Beneficially Owned After Offering(4) | |
| JGB Capital, L.P. | |
| 12,599 | | |
| * | | |
| 12,599 | | |
| - | | |
| - | |
| JGB (Cayman) Sussex Ltd. | |
| 1,234,733 | | |
| 2.5 | % | |
| 1,234,733 | | |
| - | | |
| - | |
| JGB Partners, L.P. | |
| 2,280,476 | | |
| 4.6 | % | |
| 2,280,476 | | |
| - | | |
| - | |
| * |
Represents beneficial ownership of less than 1%. |
| (1) |
Information concerning named Selling Stockholders or future transferees, pledgees, assignees, distributees, donees or successors-in-interest of or from any such stockholder or others who later hold any Selling Stockholders’ interests will be set forth in supplements to this prospectus, absent circumstances indicating that the change is material. In addition, post-effective amendments to the registration statement of which this prospectus forms a part will be filed to disclose any material changes to the plan of distribution from the description in the final prospectus. |
| (2) |
Includes shares issuable upon exercise of the Warrants and conversion of the Debentures. |
| (3) |
Beneficial ownership is determined in accordance with the rules and regulations of the SEC. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, securities that are currently convertible or exercisable into shares of our Common Stock, or convertible or exercisable into shares of our Common Stock within 60 days of June 15, 2023, are deemed outstanding. Such shares, however, are not deemed outstanding for the purposes of computing the percentage ownership of any other person. Amounts reported in the fifth column assumes that the Selling Stockholders will sell all of the Shares offered pursuant to this prospectus. |
| (4) |
Based on 49,728,084 shares of Common Stock outstanding
as of June 15, 2023. |
| (5) |
Includes the maximum number of Shares issuable upon exercise of the Warrants and conversion of the Debentures, which Shares are being registered by the registration statement of which this prospectus forms a part. |
PLAN OF DISTRIBUTION
Each Selling Stockholder (the
“Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell any or all of their securities covered hereby on Nasdaq or any other stock exchange, market or trading facility on
which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may
use any one or more of the following methods when selling securities:
| |
● |
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
● |
block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| |
● |
purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| |
● |
an exchange distribution in accordance with the rules of the applicable exchange; |
| |
● |
privately negotiated transactions; |
| |
● |
settlement of short sales; |
| |
● |
in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
| |
● |
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| |
● |
a combination of any such methods of sale; or |
| |
● |
any other method permitted pursuant to applicable law. |
The Selling Stockholders may
also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities
Act”), if available, rather than under this prospectus.
Broker-dealers engaged by
the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a
customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in
compliance with FINRA Rule 2121.
In connection with the sale
of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling
Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and
any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning
of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to
pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus
effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and
without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance
with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities
have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities
will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in
certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market
making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules
and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the Selling
Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them
of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
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 (“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:
| |
● |
an acquisition of us by means of a tender or exchange offer; |
| |
● |
an acquisition of us by means of a proxy contest or otherwise; or |
| |
● |
the removal of a majority or all of our incumbent officers and directors. |
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. 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 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 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. Additionally, our bylaws provide that any incumbent director nominee who
fails to receive a majority of the votes cast in an election that is not a contested election shall promptly tender his or her resignation
to the board of directors for their consideration.
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, 2022 and 2021 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, 2022, and financial
statement schedule for each of the years in the three-year period ended July 31, 2022 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, 2022. 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 information that we file later with the SEC will automatically update and supersede information contained
in this prospectus and any accompanying prospectus supplement. We incorporate by reference the documents listed below that we have previously
filed with the SEC (excluding any portions of any Form 8-K that are not deemed “filed” pursuant to the General Instructions
of Form 8-K):
| |
● |
our Annual Report on Form 10-K for the fiscal year ended July 31, 2022 (including the information specifically incorporated by reference into our Annual Report on Form 10-K from our revised definitive proxy statement on Schedule 14A filed with the SEC on December 21, 2022) filed with the SEC on October 14, 2022 and as amended on November 25, 2022; |
| |
● |
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 October
20, 2022, November 4,
2022, February 3,
2023, March 16,
2023, April 5,
2023, April 13,
2023, May 8,
2023, May 22,
2023, May 22,
2023, May 30,
2023 and June 16, 2023; and |
| |
● |
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. |
We also incorporate by reference
additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the completion
or termination of the offering of the securities contemplated by this prospectus, including all such documents we may file with the SEC
after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information
deemed furnished and not filed with the SEC. Any statements contained in a previously filed document incorporated by reference into this
prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus,
or in a subsequently filed document also incorporated by reference herein, modifies or supersedes that statement.
This prospectus may contain
information that updates, modifies or is contrary to information in one or more of the documents incorporated by reference in this prospectus.
You should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to
provide you with different information. You should not assume that the information in this prospectus is accurate as of any date other
than the date of this prospectus or the date of the documents incorporated by reference in this prospectus.
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.
81 Executive Blvd., Suite 3
Farmingdale, New York 11735
(631) 755-5500
You may also access certain of the documents incorporated
by reference in this prospectus through our website at www.enzo.com. Except for the specific incorporated documents listed above, no information
available on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms
a part.
WHERE YOU CAN FIND MORE INFORMATION
Statements contained in this
prospectus as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we
refer you to the copy of the contract or other document filed as an exhibit to the registration statement. Each of these statements is
qualified in all respects by this reference. We are subject to the information and periodic reporting requirements of the Exchange Act
and we file annual, quarterly and current reports, proxy statements and other information with the SEC. Our filings with the SEC are also
available to the public at the SEC’s website at http://www.sec.gov. 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.
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 | |
$ | 845.12 | |
| Legal fees and expenses | |
$ | 100,000 | |
| Accounting fees and expenses | |
$ | 20,000 | |
| Printing fees and miscellaneous expenses | |
$ | 5,000 | |
| Total | |
$ | 125,845.12 | |
| * |
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 |
|
|
| |
|
|
| 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 Debenture (incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K (File No. 001-09974) filed with the SEC on May 22, 2023) |
| |
|
|
| 4.3 |
|
Form of Warrant (incorporated by reference to Exhibit 4.2 of the Registrant’s Current Report on Form 8-K (File No. 001-09974) filed with the SEC on May 22, 2023) |
| |
|
|
| 5.1 |
|
Opinion of McDermott Will & Emery LLP, counsel to the registrant |
| |
|
|
| 10.1 |
|
Securities Purchase Agreement, dated May 19, 2023, by and among Enzo Biochem, Inc., the purchasers named therein, and JGB Collateral, LLC (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K (File No. 001-09974) filed with the SEC on May 22, 2023) |
| |
|
|
| 10.2 |
|
Registration Rights Agreement, dated May 19, 2023, by and among Enzo Biochem, Inc. and the purchasers named therein (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K (File No. 001-09974) filed with the SEC on May 22, 2023) |
| |
|
|
| 10.3 |
|
Security Agreement, dated May 19, 2023, by and among Enzo Biochem, Inc., each of Enzo Biochem, Inc.’s specified subsidiaries named therein, the purchasers named therein and JGB Collateral, LLC (incorporated by reference to Exhibit 10.3 of the Registrant’s Current Report on Form 8-K (File No. 001-09974) filed with the SEC on May 22, 2023) |
| |
|
|
| 10.4 |
|
Form of Subsidiary Guarantee (incorporated by reference to Exhibit 10.4 of the Registrant’s Current Report on Form 8-K (File No. 001-09974) filed with the SEC on May 22, 2023) |
| |
|
|
| 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) |
| |
|
|
| 107 |
|
Filing Fee Table |
| |
* |
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:
(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
(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 16th day of June, 2023.
| |
ENZO BIOCHEM, INC. |
| |
|
| |
By: |
/s/ Hamid Erfanian |
| |
Name: |
Hamid Erfanian |
| |
Title: |
Chief Executive Officer |
| |
|
(Principal Executive Officer) |
| |
|
| |
By: |
/s/ Patricia Eckert |
| |
Name: |
Patricia Eckert |
| |
Title: |
Interim Chief Financial Officer, |
| |
|
(Principal Accounting Officer) |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENT, that each person whose signature appears below constitutes and appoints Hamid Erfanian and Patricia Eckert, 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/ Hamid Erfanian |
|
Chief Executive Officer |
|
June 16, 2023 |
| Hamid Erfanian |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Patricia Eckert |
|
Interim Chief Financial Officer |
|
June 16, 2023 |
| Patricia Eckert |
|
(Principal Accounting Officer) |
|
|
| |
|
|
|
|
| |
|
Director |
|
June 16, 2023 |
| Elazar Rabbani, Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Bradley Radoff |
|
Director |
|
June 16, 2023 |
| Bradley Radoff |
|
|
|
|
| |
|
|
|
|
| /s/ Ian Walters, M.D. |
|
Director |
|
June 16, 2023 |
| Ian Walters, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Mary Tagliaferri, M.D. |
|
Chair of the Board |
|
June 16, 2023 |
| Mary Tagliaferri, M.D. |
|
|
|
|
II-5
Grafico Azioni Enzo Biochem (NYSE:ENZ)
Storico
Da Ott 2024 a Nov 2024
Grafico Azioni Enzo Biochem (NYSE:ENZ)
Storico
Da Nov 2023 a Nov 2024
