REVISED PRELIMINARY COPY DATED FEBRUARY 11, 2020 — SUBJECT TO COMPLETION
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by the Registrantx ☒
Filed by a Party other than the Registranto ☐
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| Preliminary Proxy Statement |
| Confidential, For Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| Definitive Proxy Statement |
| Definitive Additional Materials |
| Soliciting Material Under Rule 14a-12 |
Enzo Biochem, Inc.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. | ||
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| Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. | ||
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ENZO BIOCHEM, INC.
REVISED PRELIMINARY COPY DATED FEBRUARY 11, 2020—527 Madison AvenueSUBJECT TO COMPLETIONNew York, New York 10022
[•], 2020
Dear All Shareholders of Enzo Biochem, Inc.:
As announced on January 28, 2020, the Enzo board of directors (the “Board”) has made a series of changes to the agenda for the upcoming 2019 Annual Meeting of Shareholders (the “Annual Meeting”) taking into account direct feedback received following significant investor outreach and engagement with our top shareholders, including Harbert Discovery Fund, LP and Harbert Discovery Co-Investment Fund I, LP (together with certain affiliates, “Harbert”). In order to allow shareholders sufficient time to review the accompanying proxy supplement (the “Second Supplement”), the Annual Meeting scheduled for January 31, 2020 will be adjourned and reconvened on February 25, 2020.
As a result of the changes to the agenda and the Board withdrawing Bruce A. Hanna as a director candidate, the director candidates nominated by Harbert (the “Harbert Nominees”) will now run unopposed as candidates for election as Class II Directors. In addition, Enzo is proposing to shareholders: (1) to amend the By-Laws to increase the size of the Board from five to six directors and provide the Board discretion to further increase or decrease the size of the Board between five and seven and (2) if the shareholders approve the Board expansion, to vote to elect Barry W. Weiner as a Class III Director to the Board. The Board intends to appoint a new, highly qualified and experienced, diverse independent director in the near future.
Accordingly, the Company has revised its proxy card to reflect these changes. We encourage you to review the Second Supplement for additional information about the Annual Meeting that has been updated.
Even if you previously submitted a white or blue proxy card, we urge you to fill out and submit the enclosed GOLD proxy card today.TheGOLD proxy card enclosed with the Second Supplement differs from the proxy cards previously furnished to you with the Proxy Statement dated December 5, 2019 (the “Proxy Statement”) or the first supplement to the Proxy Statement dated December 31, 2019 (the “First Supplement”). The enclosedGOLDproxy card reflects the proposal to expand the Board in addition to the Company’s director nominees.
Any proxy or voting instruction form may be revoked at any time prior to its exercise at the Annual Meeting, as described in the Proxy Statement. Only your latest dated and signed proxy card or voting instruction form will be counted. If you have already voted on the previously distributed white proxy card or on the blue proxy card provided by Harbert and you do not submit aGOLDproxy card or voting instruction form, your previously submitted proxy or voting instruction form will still be voted at the Annual Meeting, but you will not be able to vote on the proposal to expand the Board or the election of Mr. Weiner as a Class III Director. If you would like to cast your vote in favor of the proposal to expand the Board or the election of Mr. Weiner, you must fill out and submit the enclosedGOLDproxy card.
If you previously submitted a white or blue proxy card, votes cast for either Mr. Weiner and/or Dr. Hanna will not be counted with respect to the proposal to elect two Class II Directors as neither Mr. Weiner nor Dr. Hanna remain up for election as Class II Directors. Votes cast on the white proxy card will no longer be counted for purposes of electing Mr. Weiner to the Board as Mr. Weiner is now up for election as a director of a different class for a different term. Dr. Hanna no longer stands for election as a director of any class. However, votes cast on any of the other remaining proposals using either of the two white proxy cards will be counted. Furthermore, even though the proposal to elect two Class II Directors has been redesignated as proposal 2, any votes cast in favor of the Harbert Nominees on the blue proxy card provided by Harbert will still be counted.
THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” THE EXPANSION OF THE BOARD AND “FOR” THE ELECTION OF EACH OF REBECCA J. FISCHER AS A
CLASS I DIRECTOR AND BARRY W. WEINER AS A CLASS III DIRECTOR USING THE ENCLOSED GOLD PROXY CARD. THE BOARD MAKES NO RECOMMENDATION AND IS NOT OPPOSING THE HARBERT NOMINEES.
While the Board makes no recommendation on the election of the Harbert Nominees as Class II Directors, the Board is not nominating any opposing candidates, essentially assuring the election of the Harbert Nominees. In accordance with New York law and the By-Laws, directors will be elected by a plurality of the votes cast at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected. Since the Board has not proposed any director candidates to oppose the Harbert Nominees, assuming Harbert or any other shareholder votes for the Harbert Nominees, both will be elected to the Board. However, shareholders voting using the enclosedGOLDproxy card will be unable to cast a vote with respect to the Harbert Nominees and shareholders wishing to vote for the Harbert Nominees must vote on a blue proxy card provided by Harbert.
YOUR VOTE IS IMPORTANT
Your vote at the Annual Meeting is important. To assure that your shares are represented at the Annual Meeting, we urge you to date, sign and return the enclosedGOLD proxy card in the postage-paid envelope provided, or vote by telephone or the Internet as instructed on theGOLD proxy card, whether or not you plan to attend the Annual Meeting. If you previously submitted a proxy card or a voting instruction form for the Annual Meeting, such proxy card or voting instruction form will continue to be valid and will be voted at the Annual Meeting. If your shares are held for your account by a broker or other nominee, you should have already received instructions from the holder of record that you must follow for your shares to be voted.
Please read the Proxy Statement and First Supplement that were previously made available to shareholders and the enclosed Second Supplement in their entirety, as the proposals have been updated in this Second Supplement and, together, they contain all of the information that is important to your decisions in voting at the Annual Meeting.
On behalf of your Board of Directors, we thank you for your continued support.
[•], 2020
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REVISED PRELIMINARY COPY DATED FEBRUARY 11, 2020—SUBJECT TO COMPLETION
NOTICE OF 20192021 ANNUAL MEETING OF SHAREHOLDERS
To be convened on January 31, 2020 and adjourned and reconvenedheld on February 25, 202014, 2022
To All Shareholders of Enzo Biochem, Inc.:
NOTICE IS HEREBY GIVEN that the 20192021 Annual Meeting of Shareholders (the “Annual Meeting”) of Enzo Biochem, Inc., a New York corporation (the(“we” or the “Company”), will convene at The Yale Club of New York City, 50 Vanderbilt Avenue, New York, NY 10017,be held virtually over the internet using the link, www.virtualshareholdermeeting.com/ENZ2022, on January 31, 2020,Monday, February 14, 2022 at 9:00 a.m. New York City time and then immediately adjourn to be reconvened on February 25, 2020, at 9:00 a.m. New York City time at the same location (including any adjournments, postponements or continuations thereof, the “Annual Meeting”), EST, for the following purposes:purposes.
1. | To | ||
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| 2. | If the stockholders approve Proposal 1 to eliminate classification of the board of directors, to elect Hamid Erfanian and Bradley L. Radoff each to serve on our board of directors for a term ending as of our 2022 annual meeting of stockholders, and until each such director’s successor shall have been duly elected and qualified, or if the | |
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| 4. | to ratify the Company’s appointment of EisnerAmper LLP to serve as the Company’s independent registered public accounting firm for the Company’s fiscal year ending July 31, | |
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The accompanying supplement (including all annexes attached thereto,
Only shareholders of record as of the “Second Supplement”) to the proxy statement filed by the Company with the SECclose of business on December 5, 2019 (the “Proxy Statement”) and16, 2021, the first supplement to the Proxy Statement dated December 31, 2019 (the “First Supplement”) provide detailed information about the matters to be considered at the Annual Meeting. As further described in this Second Supplement, the Company will convene and then immediately adjourn—without conducting any business or holding discussions related to the proposals to be voted upon—the Annual Meeting originally scheduled to occur at 9:00 a.m., New York City time, on January 31, 2020, and reconvene at 9:00 a.m. New York City time, on February 25, 2020.
Following significant investor outreach and engagement with our top shareholders, the Board has determined that it is in the best interests of the Company to expand the size of the Board at this time, withdraw Bruce A. Hanna as a director candidate, allow the director candidates nominateddate fixed by Harbert Discovery Fund, LP and Harbert Discovery Co-Investment Fund I, LP (together with certain affiliates, “Harbert”) to run unopposed for the Class II Director positions and, if the shareholders approve the Board expansion, elect Barry W. Weiner to the expanded Board as a Class III Director. The Board also intends to appoint a new, highly qualified independent director in the near future.
Based on feedback received from its shareholders, the Board has added a proposal for consideration at the Annual Meeting to increase the maximum size of the Board from five to six directors and provide the Board discretion to further increase or decrease the size of the Board between five and seven directors. The Board has also changed its recommendations and nominees for election to the Board, withdrawing Bruce A. Hanna as a director candidate and allowing the Harbert Nominees to run unopposed as candidates for election as Class II Directors. If the proposal to increase the size of the Board is approved, shareholders will also be asked to vote on an election proposal to elect Barry W. Weiner as a Class III Director to the Board. Accordingly, the Board has revised its proxy card to reflect these changes. We encourage you to review the Second Supplement for more updated information about the Annual Meeting.
The Board strongly urges you not to sign or return any proxy card sent to you by Harbert. Any proxy or voting instruction form may be revoked at any time prior to its exercise at the Annual Meeting, as described in the Proxy Statement. Only your latest dated and signed proxy card or voting instruction form will be counted. If you have already voted on a previously distributed proxy card or on the blue proxy card provided by Harbert and you do not submit aGOLDproxy card or voting instruction form, your previously submitted proxy or voting instruction form will still be voted at the Annual Meeting, but you will not be able to vote on the proposal to expand the Board or Mr. Weiner as a Class III Director. If you would like to cast your vote in favor of the proposal to expand the Board or the election of Mr. Weiner you must fill out and submit the enclosedGOLDproxy card.
If you previously submitted a white or blue proxy card, votes cast for either Mr. Weiner and/or Dr. Hanna will not be counted with respect to the proposal to elect two Class II Directors as neither Mr. Weiner nor Dr. Hanna remain up for election as Class II Directors. Votes cast on the white proxy card will no longer be counted for purposes of electing Mr. Weiner to the Board as Mr. Weiner is now upthe record date for election asthe meeting, are entitled to notice of, and to vote at, the meeting. As a director of a different class for a different term. Dr. Hanna no longer stands for election as a director of any class. However, votes cast on anyresult of the other remaining proposals using either of the two white proxy cardscoronavirus (COVID-19) outbreak, this annual meeting will be counted. Furthermore, even thougha completely virtual meeting. There will be no physical meeting location. The meeting will be conducted via live webcast. Shareholders will have the proposalsame rights and opportunities to elect two Class II Directors has been redesignatedparticipate in our virtual annual meeting as proposal 2, any votes cast in favorthey would at an in-person meeting. For more information on our virtual annual meeting, including details on how to attend the meeting, see the instructions under “Instructions for the Virtual Annual Meeting” on page 1 of the Harbert Nominees on the blue proxy card provided by Harbert will still be counted.this Proxy Statement.
THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” THE EXPANSION OF THE BOARD AND “FOR” THE ELECTION OF EACH OF REBECCA J. FISCHER AS A CLASS I DIRECTOR AND BARRY W. WEINER AS A CLASS III DIRECTOR USING THE ENCLOSED GOLD PROXY CARD. THE BOARD MAKES NO RECOMMENDATION ON AND IS NOT OPPOSING THE HARBERT NOMINEES.
While the Board makes no recommendation on the election of the Harbert Nominees as Class II Directors, it is not nominating any opposing candidates, essentially assuring the election of the Harbert Nominees. In accordance with New York law and the By-Laws, directors will be elected by a plurality of the votes cast at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected. Since the Board has not proposed any director candidates to oppose the Harbert Nominees, assuming Harbert or any other shareholder votes for the Harbert Nominees, both will be elected to the Board. However, shareholders voting using the enclosedGOLDproxy card will be unable to cast a vote with respect to the Harbert Nominees and shareholders wishing to vote for the Harbert Nominees must vote on a blue proxy card provided by Harbert.
It is extremely important that your shares be represented and voted at the Annual Meeting. Whether or not you plan to attend the Annual Meeting, and regardless of the number of shares of the Company’s common stock, par value $0.01 per share (“Common Stock”), you own, please vote as soon as possible. We urge you to date, sign and return theGOLD proxy card in the envelope provided to you, or to use the telephone or Internet method of voting described on yourGOLD proxy card, even if you plan to attend the Annual Meeting, so that if you are unable to attend the Annual Meeting, your shares can be voted.Voting now will not limit yourAny shareholder of record who submits a proxy card retains the right to change your voterevoke such proxy card by: (i) submitting a written notice of such revocation to the President of the Company so that it is received no later than 5:00 p.m., EST on [ ], 2022; (ii) submitting a duly signed proxy card bearing a later date than the previously signed and dated proxy card to the President of the Company so that it is received no later than 5:00 p.m., EST on February 11, 2022; or to attend(iii) attending the Annual Meeting. If you should be presentMeeting virtually and voting thereat the shares represented by such proxy card. Attendance at the Annual Meeting will not, in and desireof itself, constitute revocation of a completed, signed and dated proxy card previously returned. All such later-dated proxy cards or written notices revoking a proxy card should be sent to voteEnzo Biochem, Inc., 527 Madison Avenue, New York, New York 10022, Attention: Barry W. Weiner, President. If you hold shares of Common Stock in person,street name, you may withdraw your proxy. Ifmust contact the firm that holds your shares are held in the name of a broker, bankto change or other holder of record, follow therevoke any prior voting instructions you received from the holder of record in order to vote your shares. Please note that in order to be permitted entrance to the Annual Meeting you will be asked to present proof that you are a shareholder of the Company as well as valid government-issued picture identification, such as a driver’s license or passport. The use of cameras, recording devices and other electronic devices (including mobile phones) will be prohibited at the Annual Meeting.instructions.
Please read carefully read the enclosed Proxy Statement, and First Supplement that were previously made available to shareholders and the enclosed Second Supplement in their entirety, as the proposals have been updated in the Second Supplement and the Second Supplementwhich explains the proposals to be considered by you and acted upon by you at the Annual Meeting.
The Board has fixed the close of business on December 3, 201916, 2021 as the record date for the determination of holders of record of the Company’s common stockCommon Stock entitled to notice of, and to vote at, the Annual Meeting. The record date has not changed as a result of the changes to the agenda. A list of shareholders of record of the Company as of the record date will remain open for inspection at the continuation ofduring the Annual Meeting until the closing of the polls thereat.
We appreciate your continued interest in the Company. We look forward to greeting as many of our shareholders as possible at the Annual Meeting.
If you have any questions or require any assistance with voting your shares, or if you need additional copies ofabout the proxy materials,procedures for admission to the Annual Meeting, please contact Investor Relations at (212) 583-0100 or our proxy solicitor, Kingsdale Advisors, at:583-0100.
Kingsdale Advisors(888) 518-1554 (toll-free in North America)(416) 867-2272 (outside of North America)email: ENZ@kingsdaleadvisors.com
[•], 2020
| January [ ], 2022 | ||
By Order of the Board of Directors, | ||
/s/ Barry W. Weiner | ||
| Barry W. Weiner | ||
| President |
ALL HOLDERS OF RECORD OF THE COMPANY’S COMMON STOCK (WHETHER THEY
INTEND TO ATTEND THE ANNUAL MEETING OR NOT) ARE STRONGLY
ENCOURAGED TO COMPLETE, SIGN, DATE AND RETURN PROMPTLY THE GOLDPROXY
CARD ENCLOSED WITH THE ACCOMPANYING SECOND SUPPLEMENT.PROXY STATEMENT.
2
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SHAREHOLDER MEETING TO BE CONVENED ON JANUARY 31, 2020 AND ADJOURNED AND RECONVENED ON FEBRUARY 25, 2020ENZO BIOCHEM, INC.
PROXY STATEMENT
2021 ANNUAL MEETING OF SHAREHOLDERS
To be held on February 14, 2022
This NoticeProxy Statement is being furnished in connection with the solicitation of proxies by and on behalf of the Board of Directors (the “Board”) of Enzo Biochem, Inc., a New York corporation (“we” or the “Company”), for use at the 2021 Annual Meeting of Shareholders (the “Annual Meeting”) to be held virtually over the internet using the link, www.virtualshareholdermeeting.com/ENZ2022, on Monday, February 14, 2022 at 9:00 a.m., EST, or any adjournment or adjournments thereof. This Proxy Statement, together with the First Supplement, the enclosed Second Supplement, the Company’s 2019accompanying Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended July 31, 2019,2021 and formthe Proxy Card, are first being mailed to shareholders on or about January [ ], 2022. Only shareholders ofGOLD record as of the close of business on December 16, 2021 are entitled to notice of, and to vote at, the Annual Meeting.
The Board may use the services of the Company’s directors, officers and other regular employees to solicit proxies personally or by telephone and may request brokers, fiduciaries, custodians and nominees to send proxies, proxy statements and other materials to their principals and reimburse them for their out-of-pocket expenses in so doing. The cost of solicitation of proxies, estimated to be approximately $25,000, will be borne by the Company. Each proxy duly executed and returned to the Company is revocable. The procedure a shareholder must follow to revoke its proxy depends on how such shareholder holds its shares. Registered holders of our Common Stock may revoke a previously submitted proxy by submitting another valid later dated proxy or by providing a signed letter of revocation to the Corporate Secretary of the Company before the closing of the polls at the Annual Meeting. Only the latest dated validly executed proxy will count. Shareholders also may revoke any previously submitted proxy by attending the Annual Meeting and voting their shares during the Annual Meeting. Note that simply attending the Annual Meeting without taking one of the above actions will not revoke a proxy. In general, shareholders holding shares in “street name” may revoke previously submitted voting instructions by submitting to their custodian another valid voting instruction or a signed letter of revocation. Shareholders holding shares in “street name” should contact their custodian for detailed instructions on how to revoke their voting instruction and the applicable deadlines.
Instructions for the Virtual Annual Meeting
As a result of the coronavirus (COVID-19) outbreak, the Annual Meeting will be a completely virtual meeting. There will be no physical meeting location. The Annual Meeting will be conducted via live webcast. Shareholders will have the same rights and opportunities to participate in the virtual Annual Meeting as they would at an in-person meeting.
To attend the virtual Annual Meeting, visit www.virtualshareholdermeeting.com/ENZ2022 and enter the 16-digit control number included on your proxy card or voting instruction form. The meeting will start at 9:00 a.m., EST on February 14, 2022. We encourage you to access the virtual Annual Meeting prior to the start time to familiarize yourself with the virtual platform and ensure you can hear the streaming audio. Online access will be available starting at 8:30 a.m., EST on February 14, 2022.
The virtual Annual Meeting platform is fully supported across browsers (Internet Explorer, Firefox, Chrome, and Safari) and devices (desktops, laptops, tablets and cell phones) running the most updated version of applicable software and plugins. Participants should ensure that they have a strong WiFi connection from wherever they intend to participate in the virtual Annual Meeting.
While we strongly encourage you to vote your shares prior to the virtual Annual Meeting, shareholders may also vote during the meeting. Once logged in, you will be able to vote your shares by clicking the “Vote Here!” button.
Shareholders may submit written questions once logged into the virtual Annual Meeting platform. Questions pertinent to meeting matters will be answered during the question and answer portion of the virtual Annual Meeting, subject to a time limit prescribed by the Rules of Conduct that will be posted to the virtual Annual Meeting platform on the day of the meeting. The Rules of Conduct will also provide additional information about the relevancy of questions to meeting matters.
If you encounter any amendments thereto,difficulties accessing the virtual Annual Meeting during the check-in or meeting time, you should call the technical support number that will be posted on the virtual shareholder meeting login page.
Voting Securities and Votes Required
The Board has fixed the close of business on December 16, 2021 as the record date for determination of shareholders entitled to notice of, and to vote at, the Annual Meeting (the “Record Date”). As of the Record Date, the Company had outstanding 48,471,771 shares of Common Stock. Each share of Common Stock entitles the record holder thereof to one vote on each matter brought before the Annual Meeting. No shares of preferred stock were outstanding as of the Record Date. A majority of the outstanding shares of Common Stock, represented in person or by proxy, constitutes a quorum. Rights of appraisal or similar rights of dissenters are not available to shareholders of the Company with respect to any matter to be acted upon at the Annual Meeting.
A shareholder who abstains from voting on any or all proposals will be included in the number of shareholders present at the Annual Meeting for the purpose of determining the presence of a quorum. A “broker non-vote” will also be counted for the purpose of determining the presence of a quorum. A “broker non-vote” occurs when a beneficial owner whose shares are held of record by a broker does not instruct the broker how to vote those shares and the broker does not otherwise have discretionary authority to vote on a particular matter. Brokers are not permitted to vote shares without instructions on proposals that are not considered “routine.” Accordingly, brokers are entitled to vote on Proposal Number 4 (the ratification of the independent registered public accounting firm), which is considered a “routine” matter, but brokers are not entitled to vote on Proposal Number 1 (the Declassification Proposal), Proposal Number 2 (the Director Proposal), or Proposal Number 3 (the Advisory Proposal). In order to avoid a broker non-vote on these proposals, a beneficial owner whose shares are held of record by a broker must send voting instructions to that broker.
The approval of the amendment to the Company’s certificate of incorporation, as amended (“Certificate of Incorporation”), to declassify our board of directors (Proposal 1) will require the affirmative vote of (i) the holders of at least 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 persons not affiliated with an Interested Shareholder (defined in the Certificate of Incorporation). Shareholders may vote “for,” “against” or “abstain” with respect to Proposal 1. Abstentions and broker non-votes will have the same effect as a vote “against” for the purpose of determining whether a supermajority of the Company’s outstanding shares of stock have been voted “for” Proposal 1.
The election of each nominee for Director (Proposal 2), which is an uncontested election, will require the affirmative vote of the majority of the votes cast either “for” or “against” the nominee’s election by holders of shares of Common Stock present, in person or represented by proxy, at the Annual Meeting and entitled to vote on such proposal. This means that the number of votes cast “for” the nominee’s election must exceed the number of votes cast “against” their election in order for that candidate to be elected to serve as a Director of the Company. Shareholders may vote “for,” “against” or “abstain” to vote for the Director-nominee. A properly executed proxy card marked “abstain” and broker non-votes with respect to a Director-nominee will not be voted with respect to the election of that Director-nominee, although they will be counted for purposes of determining whether there is a quorum present at the Annual Meeting for the transaction of business. As a result, such votes will have no effect on the Director election since only votes “for” or “against” a nominee will be counted. An incumbent director who does not receive more votes cast “for” than “against” in his or her election in an uncontested election must tender his or her resignation to our Board and our Board will decide, through a process managed by the Nominating/Governance Committee, whether to accept such resignation or to have such director serve on a holdover basis until a successor is appointed.
The approval of the compensation of the Company’s Named Executive Officers (Proposal 3) will require the affirmative vote of a majority of the votes cast by holders of shares of Common Stock present, in person or represented by proxy, at the Annual Meeting and entitled to vote on such proposal. Shareholders may vote “for,” “against” or “abstain” with respect to Proposal 3. While our Board intends to carefully consider the shareholder vote resulting from Proposal 3, the vote is not binding on us and is advisory in nature. Under the rules of the New York Stock Exchange (“NYSE”), abstentions will be counted as “votes cast” and will have the same effect as a vote “against” for the purpose of determining whether a majority of the votes cast have been voted “for” Proposal 3. Broker non-votes will not be counted as “votes cast” on Proposal 3 and will have no effect on the outcome of the vote with respect to Proposal 3.
4
The ratification and approval of the Company’s appointment of EisnerAmper LLP to serve as the Company’s independent registered public accounting firm for the Company’s fiscal year ending July 31, 2022 (Proposal 4) will require the affirmative vote of a majority of the votes cast by holders of shares of Common Stock present, in person or represented by proxy, at the Annual Meeting and entitled to vote on such proposal. Shareholders may vote “for,” “against” or “abstain” with respect to Proposal 4. Under the rules of the NYSE, abstentions will be counted as “votes cast” and will have the same effect as a vote “against” for the purpose of determining whether a majority of the votes cast have been voted “for” Proposal 4. Proposal Number 4 is considered a “routine” matter and thus brokers are entitled to vote on Proposal Number 4 even if a stockholder does not instruct the broker how to vote. Therefore, we do not expect that there will be any broker non-votes for Proposal 4.
If you are a shareholder whose shares are registered directly in your name with American Stock Transfer & Trust Company, LLC, our transfer agent, and you return a signed Proxy Card without giving specific voting instructions, then the individuals designated as proxy holders on the Proxy Card will vote your shares in accordance with the recommendations of the Board: (i) “FOR” Proposal 1, (ii) “FOR” Proposal 2, (iii) “FOR” Proposal 3 and (iv) “FOR” Proposal 4.
Please vote your proxy so your vote can be counted.
Company shareholders who have questions about matters to be voted on at the annual meeting or who desire additional copies of this Proxy Statement or additional proxy or voting instruction cards should contact:
Enzo Biochem, Inc.
527 Madison Avenue
New York, New York 10022
(212) 583-0100
Attn.: Investor Relations
or
Kingsdale Advisors
(888) 518-1554 (toll-free in North America)
(416) 867-2272 (outside of North America)
e-mail: contactus@kingsdaleadvisors.com
IMPORTANT NOTICE REGARDING AVAILABILITY OF PROXY MATERIALS
This Proxy Statement, the form of proxy card, our 2021 Annual Report to Shareholders and our Annual Report on Form 10-K for our fiscal year ended July 31, 2021, are available free of charge at http://www.enzo.com/corporate/investor-information/enzo-sec-filings. Informationto you on our website does not constitute part of the Company’s proxy solicitation materials.
at www.enzo.com. Shareholders may also obtain a copy of these materials by writing to Enzo Biochem, Inc., 527 Madison Avenue, New York, NYNew York 10022, Attention: Investor Relations.Barry W. Weiner, President. Upon payment of a reasonable fee, shareholders may also obtain a copy of the exhibits to our Annual Report on Form 10-K and Form 10-K/A for our fiscal year ended July 31, 2019. Any request for such materials should be delivered to2021.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Set forth below is information, as of December 16, 2021, the Record Date, concerning stock ownership of all persons known by the Company before February 7, 2020 to facilitate timely delivery.
For information on how to obtain directions to be able to attend the Annual Meeting and vote in person, please write to the Company’s principal corporate office at 527 Madison Avenue, New York, NY 10022, Attention: Investor Relationsown beneficially 5% or call (212) 583-0100 requesting such information.
THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” EXPANSION OF THE BOARD, “FOR” THE ELECTION OF EACH OF REBECCA J. FISCHER AS A CLASS I DIRECTOR, “FOR” THE ELECTION OF BARRY W. WEINER AS A CLASS III DIRECTOR, “FOR” PROPOSAL 5, “FOR” PROPOSAL 6 AND “FOR” PROPOSAL 7 USING THE ENCLOSED GOLD PROXY CARD. THE BOARD MAKES NO RECOMMENDATION ON THE HARBERT NOMINEES. While the Board makes no direct recommendation on the electionmore of the Harbert Nomineesshares of Common Stock of the Company, the executive officers named in the “Summary Compensation Table” as Class II Directors, it is not opposing their candidacy, essentially assuring their election. In accordance with New York law“Named Executive Officers,” all current directors, and the By-Laws,all current directors, are elected by a pluralityexecutive officers and key employees of the
votes cast at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected. Since the Board is not nominating any director candidates to oppose the Harbert Nominees, assuming Harbert or any other shareholder votes for them, both Harbert Nominees will be elected to the Board. However, shareholders voting using the enclosed GOLD proxy card will be unable to cast a vote with respect to the Harbert Nominees and shareholders wishing to vote for the Harbert Nominees must vote on a blue proxy card provided by Harbert.
If you previously submitted a white or blue proxy card, votes cast for either Mr. Weiner and/or Dr. Hanna will not be counted with respect to the proposal to elect two Class II Directors as neither Mr. Weiner nor Dr. Hanna remain up for election as Class II Directors. Votes cast on the white proxy card will no longer be counted for purposes of electing Mr. Weiner to the Board as Mr. Weiner is now up for election Company as a director of a different class for a different term. Dr. Hanna no longer stands for election as a director of any class. However, votes cast on any of the other remaining proposals using either of the two white proxy cards will be counted. Furthermore, even though the proposal to elect two Class II Directors has been redesignated as proposal 2, any votes cast in favor of the Harbert Nominees on the blue proxy card provided by Harbert will still be counted.
Kingsdale Advisors is assisting us with our effort to solicit proxies. Therefore, requests for the above materials can also be made to Kingsdale Advisors through the following channels: (1) by calling (888) 518-1554 (toll-free in North America); (2) by calling (416) 867-2272 (outside of North America); or (3) by emailing ENZ@kingsdaleadvisors.com. Additionally, if you have any questions or require assistance in authorizing a proxy or voting your shares of our common stock or in obtaining any of the above materials, please contact Kingsdale Advisors through one of the three channels listed above. We are not aware of any other business, or any other nominees for election as directors, that may properly be brought before the Annual Meeting.
IF YOU ARE A RECORD HOLDER OF SHARES, OR AN OWNER WHO OWNS SHARES IN “STREET NAME” AND OBTAIN A “LEGAL” PROXY FROM YOUR BROKER, BANK, TRUSTEE OR NOMINEE, YOU STILL MAY ATTEND THE ANNUAL MEETING AND VOTE YOUR SHARES OR REVOKE YOUR PRIOR VOTING INSTRUCTIONS.
Regardless ofgroup, based upon the number of outstanding shares of our common stock that you own, your vote is very important. Thank you for your continued support, interest and investment in Enzo Biochem, Inc.
TABLE OF CONTENTS
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REVISED PRELIMINARY COPY DATED FEBRUARY [11], 2020—SUBJECT TO COMPLETION
SUPPLEMENT TO THE PROXY STATEMENTFOR THE 2019 ANNUAL MEETING OF SHAREHOLDERS
This proxy supplement (including all annexes attached hereto, this “Second Supplement”) supplements, amends and, to the extent inconsistent, supersedes the corresponding information in the Proxy Statement dated December 5, 2019 (the “Proxy Statement”) and the first supplement to the Proxy Statement dated December 31, 2019 (the “First Supplement”) for the 2019 Annual Meeting of Shareholders (the “Annual Meeting”) of Enzo Biochem, Inc. (“Enzo,” “Enzo Biochem” or the “Company”), each as filed with the Securities and Exchange Commission (the “SEC”) and previously furnished to shareholders of the Company in connection with the solicitation of proxies by the Board of Directors of the Company (the “Board”).
To provide shareholders with sufficient time to receive by mail and review this Second Supplement in order to be able to cast their votes on a fully informed basis, the Company will convene and then immediately adjourn—without conducting any business or holding discussions related to the proposals to be voted upon—the Annual Meeting originally scheduled to occur at 9:00 a.m., New York City time, on January 31, 2020, and reconvene at The Yale Club of New York City, 50 Vanderbilt Avenue, New York, NY 10017, at 9:00 a.m., New York City time on February 25, 2020. Only shareholdersCommon Stock as of the close of business on December 16, 2021.
The percentages in the record date for“Percent of Class” column are calculated in accordance with the Annual Meeting, December 3, 2019, willrules of the SEC, under which a person may be entitleddeemed to noticebe the beneficial owner of andshares if that person has or shares the power to vote ator dispose of those shares or has the Annual Meeting.
THIS SECOND SUPPLEMENT CONTAINS IMPORTANT ADDITIONAL INFORMATION AND SHOULD BE READ IN CONJUNCTION WITH THE PROXY STATEMENT AND THE FIRST SUPPLEMENT.
right to acquire beneficial ownership of those shares within 60 days (for example, through the exercise of an option or warrant). The shares shown in the table as beneficially owned by certain individuals may include shares owned by certain members of their respective families. Because of these rules, more than one person may be deemed to be the beneficial owner of the same shares. The inclusion of the shares shown in the table is not necessarily an admission of beneficial ownership of those shares by the person indicated. Except as specifically amended or supplemented by the information contained in this Second Supplement, all information set forth in the Proxy Statement and First Supplement remains accurate and should be considered in casting your vote by proxy or in person at the Annual Meeting.
This Second Supplement is first being furnished to shareholders of Enzo on or about [•], 2020.
Explanatory Note
The Company Intends to Adjourn and Reconvene the Annual Meeting on February 25, 2020
On January 28, 2020, we announced we would delay the Annual Meeting originally scheduled for January 31, 2020 following significant investor outreach and engagement with our top shareholders, including Harbert Discovery Fund, LP and Harbert Discovery Co-Investment Fund I, LP (together with certain affiliates, “Harbert”).
As a result of the changes to the agenda and the Board withdrawing Bruce A. Hanna as a director candidate, the director candidates nominated by Harbert (the “Harbert Nominees”) will now run unopposed as candidates for election as Class II Directors. In addition, Enzo is proposing to shareholders: (1) to amend the By-Laws to increase the size of the Board from five to six directors and provide the Board discretion to further increase or decrease the size of the Board between five and seven and (2) if the shareholders approve the Board expansion, to vote to elect Barry W. Weiner as a Class III Director to the Board. The Board intends to appoint a new, highly qualified independent director in the near future.
Accordingly, the Company has updated its proxy card to include the proposal to expand the size of the Board and reflectotherwise indicated, each of the following Company nominees for election to the Board at the Annual
Meeting: Rebecca J. Fischer (as a Class I Director)persons named has sole voting and contingent upon shareholder approval of the expansion of the Board, Barry W. Weiner (as a Class III Director). We encourage you to review this Second Supplement for additional information about the Annual Meeting that has been updated.
The Board’s previous white Proxy Card has been replaced with the GOLD proxy card
Even if you previously submitted a white or blue proxy card, we urge you to fill out and submit the enclosed GOLD proxy card today. TheGOLDproxy card enclosed with this Second Supplement differs from the proxy cards previously furnished to you with the Proxy Statement and First Supplement in that the enclosedGOLDproxy card reflects the new proposals, the updated order for all of the proposals and the Company’s revised slate of director nominees. Any proxy card or voting instruction form may be revoked at any time prior to its exercise at the Annual Meeting as described in the Proxy Statement. Only your latest dated and signed proxy card or voting instruction form will be counted.If you would like to vote on the expansion of the Board or the election of Barry W. Weiner as a Class III Director, you must fill out and submit the enclosed GOLD proxy card.
If you previously submitted a white or blue proxy card, votes cast for either Mr. Weiner and/or Dr. Hanna will not be countedinvestment power with respect to the proposal to elect two Class II Directors as neither Mr. Weiner nor Dr. Hanna remain up for election as Class II Directors. Votes cast on the white proxy card will no longer be counted for purposes of electing Mr. Weiner to the Board as Mr. Weiner is now up for election as a director of a different class for a different term. Dr. Hanna no longer stands for election as a director of any class. However, votes cast on any of the other remaining proposals using either of the two white proxy cards will be counted. Furthermore, even though the proposal to elect two Class II Directors has been redesignated as proposal 2, any votes cast in favor of the Harbert Nominees on the blue proxy card provided by Harbert will still be counted.
RECOMMENDATIONS OF THE BOARD
THE BOARD URGES SHAREHOLDERS TO VOTE ON THE ENCLOSED GOLD PROXY CARD “FOR” PROPOSAL 1, “FOR” EACH OF THE NOMINEES ON PROPOSALS 3 AND 4 AND “FOR” PROPOSALS 5, 6 AND 7. THE BOARD MAKES NO RECOMMENDATION ON THE HARBERT NOMINEES ON PROPOSAL 2.
While the Board makes no recommendation on the election of the Harbert Nominees as Class II Directors, it is not nominating any opposing candidates, essentially assuring the election of the Harbert Nominees. In accordance with New York law and the By-Laws, directors will be elected by a plurality of the votes cast at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected. Since the Board has not proposed any director candidates to oppose the Harbert Nominees, assuming Harbert or any other shareholder votes for them, both Harbert Nominees will be elected to the Board. However, shareholders voting using the enclosedGOLDproxy card will be unable to cast a vote with respect to the Harbert Nominees and shareholders wishing to vote for the Harbert Nominees must vote on a blue proxy card provided by Harbert.
If your shares are held for you by a broker, bank or nominee, it is critical that you cast your vote by instructing your bank, broker or other nominee using the gold voting instruction form provided on how to vote if you want your vote to be counted at the meeting.
Note Regarding Proxy Materials
If shareholders have any questions, require assistance with voting the enclosedGOLDproxy card, or need additional copies of the proxy materials, please contact:
Kingsdale Advisors(888) 518-1554 (toll-free in North America)(416) 867-2272 (outside of North America)email: ENZ@kingsdaleadvisors.com
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| Name of Beneficial Owner | Amount and Nature of Beneficial Ownership(1) | Percent of Class(2) | ||||||
| Elazar Rabbani, Ph.D. | 2,221,684 | (3) | 4.5 | % | ||||
| Barry W. Weiner | 1,610,975 | (4) | 3.3 | % | ||||
| Dieter Schapfel, M.D. | 174,225 | (5) | * | |||||
| Mary Tagliaferri, M.D. | 38,551 | (6) | * | |||||
| Ian B. Walters, M.D. | 38,551 | (7) | * | |||||
| Hamid Erfanian | 0 | |||||||
| Bradley L. Radoff | 4,254,700 | (8) | 8.8 | % | ||||
| Harbert Management Corp | 5,175,913 | (9) | 10.7 | % | ||||
| Renaissance Technologies, LLC | 3,210,064 | (10) | 6.6 | % | ||||
| James G. Wolf | 3,262,500 | (11) | 6.7 | % | ||||
| Roumell Asset Management, LLC | 2,886,771 | (12) | 5.9 | % | ||||
| All directors, executive officers and key employees as a group (9 persons) | 8,538,376 | (13) | 17.2 | % | ||||
SUPPLEMENTAL DISCLOSURE—BACKGROUND TO THE SOLICITATION
On September 17, 2019, Harbert delivered formal notice to the Company of its intent to nominate the Harbert Nominees for election at the Annual Meeting. Following Harbert’s notice and over the course of several weeks leading up to this Second Supplement, the Company sought to engage constructively with Harbert. While the Company attempted to reach an amicable resolution with Harbert, the Company was unable to reach an agreement that it believes is in the best interests of all shareholders.
On January 21, 2020, the Company reached out to Harbert’s counsel requesting to discuss a potential amicable resolution of the overall proxy contest.
On January 22, 2020, the Company delivered to Harbert’s counsel a proposed term sheet summarizing a potential settlement. The January 22 proposal offered to expand the size of the Board to seven and elect both of Harbert’s nominees and both nominees of the Company to the Board.
On January 25, 2020 and following several days of discussion and negotiation, Harbert countered with a revised term sheet, including atypical and unreasonable demands including: the position of Lead Independent Director, the Chairmanships over two of the three board committees, approval rights over additional directors, and veto rights over any further board expansion as well as forced resignations of both Company nominees (one immediate and one in a year). In addition Harbert demanded expense reimbursement for its entire campaign. The Company offered Harbert the chance to provide a more reasonable counterproposal and Harbert never responded.
On January 28, 2020, the Company issued a press release to announce that the Annual Meeting would be delayed until February 25, 2020. Immediately afterwards, the Company, through counsel, reached out again to Harbert and proposed to re-engage in settlement discussions. The Company never heard back.
On January 31, 2020, the Company filed this preliminary Second Supplement with the SEC.
On February 5, 2020, Harbert filed a lawsuit demanding, among other things,
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(the “Harbert lawsuit”).
On February [11], 2020, the Company filed this revised preliminary Second Supplement with the SEC.
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QUESTIONS AND ANSWERS REGARDING THE ANNUAL MEETING ADJOURNMENT AND THIS SECOND SUPPLEMENT
The following section briefly addresses some questions you may have about the Annual Meeting and this Second Supplement. These questions and answers should be read in conjunction with the questions and answers set forth in the section of the Proxy Statement titled “Information About the Annual Meeting.” Furthermore, please refer to the more detailed information contained elsewhere in this Second Supplement, the First Supplement and the Proxy Statement itself.
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“Number, Qualifications, Election and Terms Term of Office. The number of directors of the Corporation shall be fixed from time to time by the vote of a majority of the entire Board then in office and the number thereof may thereafter by like vote be increased or decreased to such greater or lesser number (not less than three) as may be so provided, subject to the provisions of Section 11 of this Article II. […]”
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| (3) | Includes (i) 358,050 shares of Common Stock issuable upon the |
| (4) | Includes (i) 318,450 shares of Common Stock issuable upon the exercise of options which are exercisable within 60 days from the Record Date, (ii) 6,638 shares of Common Stock that Mr. Weiner holds as custodian for certain of his children, and (iii) 46,671 shares of Common Stock held in the Company’s 401(k) plan. |
| (5) | Includes (i) 116,266 shares of Common Stock issuable upon the exercise of options which are exercisable within 60 days from the Record Date, and (ii) 22,124 shares of Common Stock held in the Company’s 401(k) plan. This individual is considered a key employee. |
| (6) | Includes 38,551 shares of Common Stock issuable upon the exercise of options which are exercisable within 60 days from the Record Date. |
| (7) | Includes 38,551 shares of Common Stock issuable upon the exercise of options which are exercisable within 60 days from the Record Date. |
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| (9) | The address of Harbert Management Corp. is 2100 Third Avenue North, Suite 600, Birmingham, AL 35203. This information is based solely on a Schedule 13D filed on October 28, 2021. |
| (10) | The address of Renaissance Technologies, LLC is 800 Third Avenue, New York, NY 10022. This information is based solely on a Schedule 13F filed on September 30, 2019. |
| (11) | The address of James G. Wolf is 105, Flyway Drive, Kiawah Island, SC 29455. This information is based solely on a Schedule 13D filed on November 15, 2021. |
| (12) | The address of Roumell Asset Management, LLC is 2 Wisconsin Circle, Suite 700 Chevy Chase, MD 20815. This information is based solely on a Schedule 13D filed on September 30, 2021. |
| (13) | Includes 1,050,734 shares of Common Stock issuable upon the exercise of options which are exercisable within 60 days from the Record Date. |
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PROPOSAL 1—APPROVAL OF THE AMENDMENT TO THE BY-LAWS TO INCREASE THE SIZE OF THE BOARD
Currently, Article 13 of the Company’s Certificate of Incorporation provides that the Board shall be divided into three classes of directors, elected to serve staggered terms of three years each, which means that only one class of the directors serving on the Board is elected each year. The Board proposeshas declared advisable and recommends that shareholdersapproved and is asking our stockholders to approve and adopt an amendment to the By-LawsCompany’s Certificate of Incorporation to increaseeliminate the maximum numberclassified structure of our Board. If the amendment is approved, all directors elected at and after this 2021 Annual Meeting will be elected for one-year terms (the “Declassify Amendment”).
The Board recommends that our stockholders approve and adopt the Declassify Amendment that is the subject of this Proposal 1 as it will permit the stockholders to vote on the election of directors on the Board to six and provide that the Board will have discretion to increase or decrease the size of the Board within the range of five and seven directors.every year. If this proposalProposal 1 is approved, the BoardCompany’s Certificate of Incorporation will havebe amended to revise Article 13 authorizing the authorityclassified board structure.
The Purposes and General Effect of the Amendment
In order to reduceoptimize our corporate governance practices, the Board has determined that it is advisable and in the Company’s and our stockholders’ best interests to five directors upon unanimous written consent or by a vote ofadopt the majority the entire Board. Ifproposed Declassify Amendment and declassify the Board starting with the election of directors at the Annual Meeting. The Board recognizes that many investors believe that the election of directors is set at seven directors,the primary means for stockholders to influence the Company’s practices and policies and hold management accountable for implementing those practices and policies. Similarly, many investors believe that a minimum of four directors must voteclassified structure may reduce directors’ accountability to reducestockholders because such a structure does not enable stockholders to express their approval or other views on each director’s performance on an annual basis. Upon thoughtful consideration and consistent with the size of the Board to five directors. If the Board is set at six directors, a minimum of four directors must vote in favor of the reduction. If the vote is evenly split for and against such reduction, the size of the Board will not be reduced.
Based upon feedback received from our shareholders,stockholders, the Board believesdetermined that it is advisable and in the best interests of the Company and its stockholders to expand the size of the Board at this time. Increasing the number of directors on the Board offers the Company the ability to enhance the diversity, range of experience, expertise and independence of its directors, which will createpropose a greater ability for the Board to bring in fresh perspectives in order to address the growing complexity and opportunity in our business.
The expansion of the Board requires an amendment to the By-Laws. This amendment consists of amending Article II, Section 9 of the By-Laws, which refers to the organizationdeclassification of the Board. The textBoard believes that declassification of the revised Section 9 marked withBoard supports the proposed amendment is below:
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Consequently, following the 1988 amendments to the By-Laws, Article II Section 2 no longer contained any provision regarding the size of the Board. The full text of Article II, Section 2 following the 1988 amendment is as follows:
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Moreover, in connection with the aforementioned By-Law amendments, the shareholders approved certain amendments to the Charter in 1988, requiring that any further amendment to Article II Section 2 require the approval of shares representing 80% of the Company’s outstanding shares.stockholders a meaningful voice in electing directors and shaping the Company’s practices and policies.
Since the amendments in 1988, no further amendments to Article II Section 2 were approved by the shareholders. The Board took action to unilaterally amend Article II Section 2 in 2010 and 2013. However, these amendments conflict with the 80% supermajority shareholder approval requirement contained in the Charter. Under NY BCL § 601(b), the Charter of the Company controls where it conflicts with the By-Laws. Because each of these actions were in direct violation of the Charter, both the 2010 and 2013 amendments to Article II Section 2 had no legal effect. As a consequence of the foregoing, Article II Section 2 has remained, in fact, unchanged since the 1988 amendments. Therefore, the By-Laws do not speak to the size of the Board.
If approved by our shareholders,stockholders approve this amendment will become effective immediately. Harbert’s lawsuit against the Company demands, among other things, that proposalProposal 1 be subject to the 80% supermajority vote requirement. The Company strongly disagrees with Harbert’s position. Assuming a quorum is present at the Annual Meeting, the two individuals nominated for election to our Board in Proposal 2 will serve for a one-year term until the 2022 Annual Meeting of shareholders. If our stockholders do not approve this Proposal 1, we will continue to have a classified Board structure and our stockholders will instead be asked to elect the two director nominees to Class I and for three year terms, as described in Proposal 2. The Declassify Amendment would not change the present number of directors or the Board’s authority to change that number and to fill any vacancies or newly created directorships.
If this Proposal 1 is approved and adopted by our stockholders at the Annual Meeting, the Company will cause the Declassify Amendment to become effective by filing a certificate of amendment tosetting forth the By-LawsDeclassify Amendment with the Department of State, Division of Corporations of the State of New York.
The Proposed Amendment
If this Proposal 1 is approved and adopted by our stockholders at the Annual Meeting, the paragraph (a) of Article 13 of the Company’s Certificate of Incorporation will be approved if it receives the affirmative vote of a majorityamended as follows (marked to show changes; for reference only):
(a) The Directors of the votes present in person or by proxyCorporation, other than those who may be elected by the holders of shares entitledany series, of Preferred Stock under specified circumstances, shallbe classified, with respect to hold office until its successor is elected and qualified. At each annual meeting of the shareholders of the Corporation beginning with the annual meeting of shareholders in 2022, the successors of thevote therein. Abstentions will have the same effecttime for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the By-Laws of the Corporation, one class to be originally elected for a vote against this proposal. Broker non-votes, if any, willterm expiring at the annual meeting of shareholders to be held in 1989, another class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1990, and another class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1991, with each class toclass ofdirectors whose term expires at the meeting shall be elected to hold office for a term expiring at the annual meeting of shareholders held in thethird year following the year of their election. Election of directors need not be countedby ballot unless the By-Laws of the Corporation so provide.
As a result, the provision in the Certificate of Incorporation for a classified board would be eliminated.
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Conforming Amendment to Bylaws
In addition, our Board has conditionally approved a conforming amendment (the “Conforming Bylaw Amendment”) to our Amended and Restated Bylaws, as votes castamended (“Bylaws”), which currently provide (i) in Section 2 of Article II that directors shall be divided into three (3) classes and shall hold office for a term expiring at the annual meeting of shareholders held in the third year following the year of their election; and (ii) in Section 17 of Article II that Outside Director (as defined in the Bylaws) shall be limited to a maximum of three three-year terms, whether consecutively or in total, plus any portion of an earlier three-year term that such purposes.
Outside Director may have been appointed to serve . If this proposalProposal 1 is
“Section 2. Number, Election and Terms. The number of directors constituting the Board shall be fixed at five (5). The directors, other than those who may be elected by the holders of any class or series of stock having a preference over another class or series of stock as to dividends or upon liquidation, shallbe classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as determined by the Board, one class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1989, another class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1990, and another class to be originally elected for a term expiring at the annual meeting of shareholders to be held in 1991, with each class tohold office until its successor is elected and qualified. At each annual meeting of the shareholders of the Corporation beginning with the annual meeting of shareholders in 2022, the successors of theclass ofdirectors whose term expires at the meeting shall be elected to hold office for a term expiring at the annual meeting of shareholders held in thethird year following the year of their election. Directors need not be residents of the State of New York, shareholders of the Corporation or citizens of the United States. Unless provided otherwise by law, any director may be removed at any time, with or without cause, at a special meeting of the shareholders called for that purpose.”
“Section 17. Term Limits. Notwithstanding anything herein to the contrary, the total cumulative length of time that any Outside Director may serve on the Board shall be limited to a maximum of nine yearsthree three-year terms, whether consecutively or in total, plus any portion of an earlierthree-yearterm that such Outside Director may have been appointed to serve. Notwithstanding the foregoing, the Board may extend by unanimous agreement theterm limit as set forth above for an Outside Director for up to three yearsone additional three year term. An “Outside Director” shall mean a member of the Corporation’s Board who is not an officer or employee of the Corporation.
As a result, the provision in the Bylaws for classes of directors would be eliminated and the Conforming Bylaw Amendment would become effective.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE Declassification Proposal.
PROPOSAL 2
ELECTION OF DIRECTORS
Board Nominees for Election at the Annual Meeting, this amendment will become effective immediately
If Proposal 1 is approved and shareholders will be presented withadopted by the opportunity to vote to fillstockholders at the seat arising from such vacancy as described further in Proposal 4 to this Second Supplement. In accordance with New York law and the By-Laws, the vacancy will be filled by a pluralityAnnual Meeting, each of the votes casttwo (2) director nominees named below, upon election, will serve for a one-year term ending at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected.
Additionally, the Board intends to appoint a new, highly qualified independent director to join the Board in the near future by the next annual meeting of shareholders. Pursuant to the By-Laws, the Board has the authority to fill the vacancy created by a newly created directorshipshareholders or until their successors are elected and qualified. If Proposal 1 is not approved and adopted by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board is present.
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” PROPOSAL 1 TO AMEND THE BY-LAWS TO INCREASE THE SIZE OF THE BOARD.
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PROPOSAL 2—ELECTION OF CLASS II DIRECTORS
The Board has three staggered classes of directors, each of which serves for a term of three years. Atstockholders at the Annual Meeting, the Board’seach director nominee will serve as a Class II Directors will be electedI Director to hold officesoffice for a term of three years or until their successors are elected and qualified.
As disclosed Unless otherwise instructed, the shares represented by validly submitted proxy cards will be voted “FOR” the election of the below-listed Board nominees to serve as directors of the Company. Our management has no reason to believe that the below-listed Board nominees will not be candidates or will be unavailable for election at the date of the Annual Meeting. However, in Harbert’s definitivethe event that the below-listed Board nominees should become unable or unwilling to serve as directors of the Company, the proxy cards will be voted for the election of such alternate person as shall be designated by the directors of the Company in their judgment. If any alternate person is designated by the directors of the Company to serve as director-nominees, the Company will publicly notify shareholders by press release and will promptly distribute to shareholders revised proxy materials (including a revised proxy card) that (i) identify each such substitute nominee, (ii) disclose whether such substitute nominee has consented to being named in the revised proxy statement filedand to serve if elected and (iii) include certain other disclosure required by applicable federal proxy rules and regulations with the SEC on December 6, 2019 (the “Harbert Proxy Statement”), Harbert has proposed two nominees for election as Class II Directors. The Board has not proposed any director nomineesrespect to oppose the Harbert Nominees.each such substitute nominee.
The total cumulative length of time that any “Outside Director” (a member of the Board who is not an officer or employee of the Company (an “Outside Director”)Company) may serve on the Board is limited to a maximum of three, three-year terms, whether consecutively or in total, plus any portion of an earlier three-year term that such Outside Director may have been appointed to serve. The term limit set forth above may be extended for up to a maximum of one additional term if such individual is re-nominatedrenominated by the unanimous agreement of the Board.
Vote Required
In accordance with New York law If Proposal 1 is approved and adopted by the By-Laws, directorsstockholders at the Annual Meeting, Outside Directors will be elected by a plurality ofsubject to the votes cast atsame term limits, but the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votesperiods will be elected. A properly executedmeasured by terms lasting one year.
Cooperation Agreement
On January 3, 2022, we entered into a Cooperation Agreement (the “Cooperation Agreement”) with Bradley L. Radoff and certain affiliated entities (collectively, the “Radoff Group”) to settle a potential proxy card marked“WITHHOLD” and broker non-votes, if any, with respectcontest pertaining to the election of a director nominee will be counted for purposes of determining if there is a quorumdirectors at the 2021 Annual Meeting, but will not be considered to have been voted “FOR”or “AGAINST” any director nominee. Withhold votes and broker non-votes, if any, will have no effect on the outcomeMeeting. The Radoff Group beneficially owned approximately 8.9% of the election.outstanding shares of our common stock as of January 3, 2022.
THE BOARD MAKES NO RECOMMENDATION REGARDING THE ELECTION OF THE CLASS II DIRECTORS OF THE COMPANY.
Pursuant to the Cooperation Agreement, on January 3, 2022, the Board appointed each of Hamid Erfanian and Bradley L. Radoff (collectively, the “Appointees”) to the Board to fill vacancies, with each to serve until the Company’s next annual meeting of shareholders or until his earlier death, resignation, disqualification or removal. The vacancies were created by the resignations of Dov Perlysky and Rebecca Fischer from the Board and each of its committees, which resignations also occurred on January 3, 2022.
Under Rule 14a-4(d)(1) of the Securities Exchange Act of 1934, a proxy mayCooperation Agreement, so long as the Radoff Group has not confer authoritybreached the Cooperation Agreement, the Company agreed to vote for any personnominate the Appointees for election to the board unlessBoard at the 2021 Annual Meeting. Further, pursuant to the Cooperation Agreement, the Radoff Group has agreed, until the earlier of (x) the date that person has consentedis thirty (30) calendar days prior to be named in the proxy statement and to serve if elected. Sincedeadline for the Harbert Nominees have not consented to be named insubmission of shareholder nominations for the Company’s proxy statement,2022 annual meeting of shareholders votingpursuant to theGOLD proxy card may not vote on Company’s Amended and Restated Bylaws, as amended, or (y) the electiondate that is one hundred twenty (120) calendar days prior to the first anniversary of the Harbert Nominees. However, since2021 Annual Meeting (the “Standstill Period”), not to take the Board is not nominatingfollowing actions, among others: (1) solicit proxies, (2) join any director candidates to oppose the Harbert Nominees, and assuming Harbert”group” or any other shareholder votes for them, both Harbert Nominees will be elected to the Board. Shareholders who nonetheless wish to cast votes in favor of the Harbert Nominees must do so by voting on a blue proxy card provided by Harbert.
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PROPOSAL 3—ELECTION OF CLASS I DIRECTOR
The Board has three staggered classes of directors, each of which servesarrangement, (3) submit nominations for a term of three years. Our Board, uponcontested election, (4) propose or publicly comment on any extraordinary transactions involving the recommendation of our Nominating/Governance Committee, voted on December 23, 2019Company, (5) acquire, announce an intention to nominate Ms. Fischer for election at the Annual Meetingacquire, offer or propose to serve as a replacement for incumbent Class I Director Mr. Bortz effective upon Ms. Fischer’s acceptance of such appointment. Mr. Bortz tendered his resignation immediately prioracquire, or agree to Ms. Fischer’s acceptance. Ms. Fischer has also been appointed to the Audit, Compensation and Nominating/Governance Committees and serves as Chair of the Audit Committee. At the Annual Meeting, the Board’s Class I Director will be elected to hold office for a term of two yearsacquire, directly or until their successor is elected and qualified. Unlessindirectly, by purchase or otherwise, instructed, the shares represented by validly submitted proxy cards will be voted “FOR” the election of Ms. Fischer to serve as a Class I Director of the Company. Ms. Fischer has consented to being named in this Second Supplement and to serve as a Class I Directorany security of the Company if elected. The Board has no reasonthat would result in the Radoff Group beneficially owning 9.9% or more of the then outstanding Common Stock, (6) except as expressly provided within the Agreement, grant any proxy, consent or other authority to believe that Ms. Fischer will not be a candidatevote with respect to any matter or will be(7) encourage or support any other stockholder to take any of the foregoing actions.
If any of the Radoff Appointees is unable to serve as a Class I Director. However, in the event that Ms. Fischer should become unable or unwilling to servedirector, resigns as a Class I Director,director or is removed as a director during the proxy cards will be votedStandstill Period, the Radoff Group may recommend another individual for the election of such alternate person as shall be designated by the directors currently serving on the Board. If any alternate person is designated by the directors currently onappointment to the Board who meets certain criteria, including qualifying as “independent” under the rules of the New York Stock Exchange, among others.
In addition, the Company agreed to serve as a Class I Director nominee,seek the approval of the Company’s shareholders at the 2021 Annual Meeting of an amendment to the Certificate of Incorporation to declassify the structure of the Board such that directors standing for election at and subsequent to the 2021 Annual Meeting shall stand for election to one-year term. Pursuant to the Cooperation Agreement, the Radoff Group has agreed to appear in person or by proxy at the 2021 Annual Meeting and all subsequent stockholder meetings during the Standstill Period and to vote all of the Common Stock beneficially owned by it in accordance with the Board’s recommendations with respect to (1) nominees to the Board, (2) the Charter Proposal or (3) any other matter at each such subsequent stockholder meeting, subject to certain exceptions.
In addition, the Company and the Radoff Group have agreed that the Company will publicly notify shareholders by press releasereimburse the Radoff Group for its reasonable documented expenses, including legal fees, up to $150,000 incurred in connection with the Agreement and will promptly distributeall related matters.
Accordingly, each of Messrs. Erfanian and Radoff were appointed as directors pursuant to shareholders revised proxy materials (includingthe Cooperation Agreement.
For additional details regarding the terms of the Cooperation Agreement, including a revisedGOLD proxy card)copy of the Cooperation Agreement, please see the Current Report on Form 8-K that (i) identifies such substitute nominee, (ii) discloses whether such substitute nominee consented to being named inwe filed with the revised proxy statementSEC on January 3, 2022.
Biographical Information for Nominees
DIRECTOR NOMINEES TO SERVE UNTIL
THE 2022 OR 2024 ANNUAL MEETING, IF ELECTED:
| Year First | ||||||||
| Became a | ||||||||
| Name | Age | Director | ||||||
| Hamid Erfanian | 52 | 2021 | ||||||
| Bradley L. Radoff | 48 | 2021 | ||||||
Hamid Erfanian is the Company’s Chief Executive Officer as of November 2021 and to serve as a director of the Company if elected,since January 2022. Mr. Erfanian has over 28 years of experience as a seasoned healthcare executive specializing in the diagnostic, medical devices, and (iii) includes certain other disclosures requiredlife sciences industry. Prior to his appointment as Chief Executive Officer of the Company, Mr. Erfanian was most recently Chief Commercial Officer of EUROIMMUN, a PerkinElmer Company. He previously served as Chief Executive Officer of its US subsidiary, a position he held from June 2014 through August 2021. Prior to EUROIMMUN, Mr. Erfanian held executive and senior positions at several notable diagnostics companies including Diagnostica Stago, Beckman Coulter, and Abbott Laboratories. Earlier in his career, Mr. Erfanian worked at leading diagnostic laboratory testing companies, Quest Diagnostics and Laboratory Corporation of America. He received his Bachelor’s Degree in Science and Mathematics from North Dakota State University and a Masters of Business Administration from the Cox School of Business at Southern Methodist University.
We believe that Mr. Erfanian’s qualifications to serve on the Board are demonstrated by applicable federal proxy ruleshis experience at EUROIMMUN, his ability with regards to diagnostics commercialization and regulations with respecthis keen understanding of the global biotech market.
Bradley L. Radoff has been a director of the Company since January 2022. Mr. Radoff is currently chair of the Company’s Audit Committee and a member of the Company’s Nominating/ Governance Committee and Compensation Committee. Mr. Radoff is a private investor and has also served as Principal of Fondren Management LP, a private investment management company, since 2005. Mr. Radoff previously served as a Portfolio Manager at Third Point LLC, a registered investment advisory firm, from 2006 to such substitute nominee(s).
Set forth below is Ms. Fischer’s age2009. He also served as Managing Director of December 31, 2019, her offices with us, if any, her principal occupations or employment for the past five years, the length of her tenureLonestar Capital Management LLC, a registered investment advisory firm, from 2003 to 2004. Mr. Radoff also previously served as a director and the names of other public companies in which she serves orCitadel Investment Group LLC, a global financial institution, from 2000 to 2003. Mr. Radoff has served as a memberdirector of VAALCO Energy, Inc. (NYSE:EGY), a Texas-based independent energy company, since June 2020, and Harte Hanks, Inc. (NASDAQ: HHS), a leading global customer experience company, since May 2021. Mr. Radoff previously served as a director of Support.com, Inc. (formerly NASDAQ:SPRT), a leading provider of cloud-based software and services, from June 2016 until its merger in September 2021, and Pogo Producing Company (formerly NYSE:PPP), an oil and gas exploration, development and production company, from March 2007 until the completion of its sale to Plains Exploration & Production Company in November 2007. Mr. Radoff graduated summa cum laude with a B.S. in Economics from The Wharton School at the University of Pennsylvania. The Radoff Group believes that Mr. Radoff’s financial and investment expertise together with his perspective as a significant shareholder of the board of directors.
Biographical Information for the Nominee
CLASS I DIRECTOR NOMINEE TO SERVE UNTILTHE 2021 ANNUAL MEETING, IF ELECTED:
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Name | Age | Year First | ||||||||||||
Rebecca J. Fischer |
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| 52 |
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| 2019 | ||||||||
REBECCA J. FISCHERwas appointedCompany will make him a valuable addition to the Board effective as of December 30, 2019. She is currently the Chief Financial Officer of Bellevue Hospital, the world-renowned flagship institution for New York City Health and Hospitals, with over 900 licensed beds and an operating budget of more than $950 million. She began her career at Bellevue as Associate Director in 2003, became Associate Executive Director in 2011, was promoted to Deputy CFO in 2016 and then promoted to CFO in 2017. In her role as CFO of Bellevue, Ms. Fischer is responsible for managing a team of financial managers and 400 other professionals. Her team oversees budgeting, revenue enhancement, utilization, financial reporting, cash management productivity improvement and affiliate relations with the NYU School of Medicine. She is also a key advisor to the hospital’s CEO and other members of the C-level team on strategic planning and resource allocation. In both her strategic and day-to-day responsibilities, Ms. Fischer is directly involved in guiding Bellevue and its leaders through complex government and private reimbursement practices. At Bellevue and throughout the HHC, she is viewed as a subject matter expert on optimal ways for hospitals to deliver the highest quality care at a time of enormous technological change and financial pressure. Ms. Fischer received her undergraduate degreecum laude from Cornell University and her Master of Public Administration in Health Policy and Management from New York University, where she was a recipient of the Robert F. Wagner, Jr. Fellowship.Board.
We believe that Ms. Fischer’sMr. Radoff’s qualifications to serve on ourthe Board are demonstrated by herhis professional background, experience, at Bellevue, her strengths at problem solvingother current and her keen understandingpast board positions and finance background, making him well qualified as a member of how to
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successfully navigate the intersection of investment spending with an unwavering commitment to science and innovation.
Vote Required
In accordance with New York law and the By-Laws, directors will be elected by a plurality of the votes cast at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected. A properly executed proxy card marked“WITHHOLD” and broker non-votes, if any, with respect to the election of a director nominee will be counted for purposes of determining if there is a quorum at the Annual Meeting, but will not be considered to have been voted “FOR”or “AGAINST” any director nominee. Withhold votes and broker non-votes, if any, will have no effect on the outcome of the election.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF MS. REBECCA J. FISCHERTHE ABOVE-NAMED BOARD NOMINEES TO SERVE AS A CLASS I DIRECTORDIRECTORS OF THE COMPANY.
The persons named as proxies intend to vote the proxies “FOR”“FOR” the election of Ms. Fischerthis nominee unless you indicate on the proxy card a vote “AGAINST” or “ABSTAIN” to “WITHHOLD” your vote with respect to eitherthe nominee. If for some reason anythe director nominee is unable to serve, or for good cause will not serve if elected, the persons named as proxies may vote for a substitute nominee recommended by the Board. If anya substitute nominees arenominee is designated, we will file an amended proxy statement that, as applicable, identifies the substitute nominees, discloses that such nominees have consented to being named in the revised proxy statement and to serve if elected, and includes certain biographical and other information about such nominees required by SEC rules.
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PROPOSAL 4—IF THE SHAREHOLDERS APPROVE PROPOSAL 1, ELECTION OFCLASS III DIRECTORDIRECTORS WHO ARE CONTINUING IN OFFICE:
The Board has three staggered classes of directors, each of which serves for a term of three years. If shareholders approve Proposal 1Class III: Term to Expire at the 2023 Annual Meeting in 2024
| Year First | ||||||
| Became a | ||||||
| Name | Age | Director | ||||
| Elazar Rabbani, Ph.D. | 78 | 1976 | ||||
| Ian Walters, M.D. | 54 | 2020 | ||||
Class II: Term to Expire at the Board’s Class III Director will be elected to hold office for a term of one year or until their respective successor is elected2022 Annual Meeting in 2023
| Year First | ||||||
| Became a | ||||||
| Name | Age | Director | ||||
| Mary Tagliaferri, M.D. | 54 | 2020 | ||||
DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES
The current directors, executive officers and qualified. Unless otherwise instructed, the shares represented by validly submitted proxy cards will be voted “FOR” the election of the below-listed Board nominee to serve as a Class III Director of the Company. The below-listed nominee has consented to being named in the Proxy Statement and this Second Supplement and to serve as a Class III Directorkey employees of the Company if elected. The Board has no reason to believe that the below-listed Board nominees will not be candidates or will be unable to serve as Class III Directors. However,and its subsidiaries are identified in the event that either of the below-listed Board nominees should become unable or unwilling to serve as a Class III Director, the proxy cards will be voted for the election of such alternate person as shall be designated by the directors currently on the Board. If any alternate person is designated by the directors currently on the Board to serve as a Class III Director nominee, the Company will publicly notify shareholders by press release and will promptly distribute to shareholders revised proxy materials (including a revisedGOLD proxy card) that (i) identifies such substitute nominee, (ii) discloses whether such substitute nominee consented to being named in the revised proxy statement and to serve as a director of the Company if elected, and (iii) includes certain other disclosures required by applicable federal proxy rules and regulations with respect to such substitute nominee.table below.
| Name | Age | Year Became a Director, Executive Officer or Key Employee | Position | |||
| Hamid Erfanian(1) | 52 | 2021 | Chief Executive Officer and Director | |||
| Barry W. Weiner | 71 | 1977 | President and Treasurer | |||
| David Bench | 48 | 2019 | Chief Financial Officer | |||
| Dieter Schapfel, M.D. | 58 | 2014 | Chief Medical Director, Enzo Clinical Labs | |||
| Kara Cannon | 53 | 2018 | Chief Commercial Officer | |||
| Elazar Rabbani, Ph.D. | 78 | 1976 | Director and Secretary | |||
| Mary Tagliaferri, M.D | 54 | 2020 | Chair of the Board | |||
| Ian B. Walters, M.D. | 54 | 2020 | Director | |||
| Bradley L. Radoff | 48 | 2021 | Director |
| (1) | Mr. Erfanian started his tenure as our Chief Executive Officer on November 8, 2021. Dr. Rabbani served as Chief Executive Officer during our entire fiscal year ended July 31, 2021. |
Biographical Information for NomineeRegarding Other Directors, Executive Officers and Key Employees
CLASS III DIRECTOR NOMINEE TO SERVE UNTILTHE 2020 ANNUAL MEETING, IF ELECTED:
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Name | Age | Year First | ||||||||||||
Barry W. Weiner |
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| 69 |
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| 1972 | ||||||||
BARRY W. WEINER is the Company’s President Principal Accounting Officer and a director andTreasurer as well as founder of the Company. He has served as the Company’s Chief Financial Officer until December 22, 2019 and President since 1996, and previously held the positionpositions of Director, Chief Financial Officer and Executive Vice President. Before his employment with Enzo Biochem, he worked in several managerial and marketing positions at the Colgate Palmolive Company. Mr. Weiner is a member of the New York Biotechnology Association. He received his Bachelor of Arts degree in Economics from New York University and his Master of Business Administration in Finance from Boston University.
DAVID BENCH has been the Chief Financial Officer for Enzo Biochem since December 2019. Mr. Bench has over 23 years of financial experience as a Chief Financial Officer, investment banker, research analyst, and financial advisor. He most recently served as Chief Financial Officer of ELLKAY, LLC, a healthcare information technology company servicing diagnostic laboratories, electronic medical record providers, payers, hospital/health systems and ambulatory practices. Mr. Bench was also Founder and President of DBC Group, Corp., an advisory and consulting firm based in New York City, where he assisted both public and private global corporations with cash flow management, operational performance, strategic growth planning, capital structure, valuation analysis, as well as budgeting and expense control. He previously held the position of senior investment banker at Arete Wealth Management, where he covered the telecommunications, media and technology industries. Earlier in his career, Mr. Bench was a Vice President of Institutional Equity Research at Arnhold and S. Bleichroeder in New York and in the Mergers & Acquisitions Group within the Investment Banking division of Lazard Fréres L.L.C. He received his Bachelor’s degree in Economics from Brandeis University and his Master’s degree in International Economics and Finance from the International Business School at Brandeis University. Mr. Bench received his Series 7, 63, 79, 86, and 87 securities licenses from the Financial Industry Regulatory Authority (FINRA).
DIETER SCHAPFEL, M.D. is the Chief Medical Director for Enzo Clinical Labs and has been employed with the Company since 2012, initially as a consulting pathologist. Dr.Schapfel served as Medical Director of Pathology at Southside Hospital–North Shore/Long Island Jewish Health System from 2006 to 2012. He served as a staff pathologist at Huntington Hospital from January 2004 to June 2006. Dr. Schapfel served as director of Pathology and Medical Affairs and the College of American Pathologists director of Pathology, Dublin, Ireland and Farmingdale, New York for Icon Laboratories from February 2002 to October 2003. Dr. Schapfel is a graduate of the State University of New York at Stony Brook, College of Medicine, where he also served his residency. He is a diplomat of the American Board of Pathology with certification in Anatomic and Clinical Pathology and is also a diplomat of The National Board of Medical Examiners.
KARA CANNON is Corporate Vice President of Commercial Operations and has been employed with the Company since 2011. She is responsible for strategic and tactical marketing, sales, manufacturing and general management of the operations. Ms. Cannon previously held executive positions at Pall Corporation, where she focused on commercial operations within the areas of diagnostics, biotechnology and biosciences. She has also held marketing and technical positions at Dynal Biotech (now ThermoFisher Scientific). She has had extensive experience in the marketing and selling of innovative platforms for the diagnostics markets, as well as, the development and execution of strategic plans for the growth and sustainability of diagnostic-related businesses. Ms. Cannon holds a BA from Franklin and Marshall College.
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ELAZAR RABBANI, Ph.D., is an Enzo Biochem founder and has served on the Company’s Board since its inception in 1976 and as Secretary since November 2009. Dr. Rabbani also served as the Company’s Chief Executive Officer from 1976 until November 2021 and Chairman from 1976 until January 2022. Dr. Rabbani has authored numerous scientific publications in the field of molecular biology, in particular, nucleic acid labeling and detection. He is also the lead inventor of many of the Company’s pioneering patents covering a wide range of technologies and products. Dr. Rabbani received his Bachelor of Arts degree from New York University in Chemistry and his Ph.D. in Biochemistry from Columbia University. He is a member of the American Society for Microbiology.
We believe that Mr. Weiner’sDr. Rabbani’s qualifications to serve on ourthe Board are demonstrated by his deepextensive knowledge of our businessesindustry and his accomplishments over the last 44 years, including building our intellectual property estate and the industries incommercialization of technology, which we are involved, along with his experience in finance, management and marketing, includinghas generated significant revenues for the identification of acquisition targets, business development and partnering and raising capital.
Vote Required
In accordance with New York law and the By-Laws, directors will be elected by a plurality of the votes cast at the shareholder meeting. This means that the director candidate receiving the highest number of “FOR” votes will be elected. A properly executed proxy card marked“WITHHOLD” and broker non-votes, if any, with respect to the election of a director nominee will be counted for purposes of determining if there is a quorum at the Annual Meeting, but will not be considered to have been voted “FOR”or “AGAINST” any director nominee. Withhold votes and broker non-votes, if any, will have no effect on the outcome of the election.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF MR. WEINER TO SERVE AS A CLASS III DIRECTOR OF THE COMPANY.
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The persons named as proxies intend to vote the proxies “FOR” the election of Mr. Weiner unless you indicate on the proxy cardIan B. Walters, M.D. has been a vote to “WITHHOLD” your vote with respect to either nominee. If for some reason any director nominee is unable to serve, or for good cause will not serve if elected, the persons named as proxies may vote for a substitute nominee recommended by the Board. If any substitute nominees are designated, we will file an amended proxy statement that, as applicable, identifies the substitute nominees, discloses that such nominees have consented to being named in the revised proxy statement and to serve if elected, and includes certain biographical and other information about such nominees required by SEC rules.
DIRECTORS WHO ARE CONTINUING IN OFFICE
Class I: Term to Expire at the 2021 Annual Meeting in 2022
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Name | Age | Year First | ||||||||||||
Dov Perlysky |
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| 57 |
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| 2012 | ||||||||
Class III: Term to Expire at the 2020 Annual Meeting in 2021
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Name | Age | Year First | ||||||||||||
Elazar Rabbani, Ph.D |
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| 76 |
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| 1976 | ||||||||
DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES
The current directors, executive officers and key employees of the Company since November 25, 2020. Mr. Walters is currently chair of the Company’s Compensation Committee and its subsidiaries are identifieda member of the Company’s Nominating/ Governance Committee and Audit Committee. Dr. Walters is an experienced entrepreneur and drug developer with leadership in the table below.development of over 30 drugs in multiple therapeutic areas involving diverse technologies, leading to five new oncology drug approvals. His previous roles include Executive Director of Global Oncology Clinical Research, and Business Development for Bristol-Myers Squibb and Medical Director at Millennium Pharmaceuticals. Dr. Walters is currently CEO and Director of Portage Biotech, a publicly traded clinical stage biopharmaceutical company developing an innovative portfolio of immuno-oncology assets. He is also founder of seven of Portage’s portfolio companies. Dr. Walters holds an MBA from the Wharton School of the University of Pennsylvania. He received his MD at the Albert Einstein College of Medicine and completed doctoral training in experimental medicine at The Rockefeller University. Dr. Walters has been the lead author or contributor to approximately 60 journal publications.
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Name | Age | Year Became | Position | |||||||||||||
Elazar Rabbani, Ph.D |
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| 76 |
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| 1976 | Chairman of the Board, Chief Executive | |||||||||
Barry W. Weiner(1) |
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| 69 |
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| 1977 | President, Treasurer and Director | |||||||||
David A. Bench |
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| 47 |
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| 2019 | Chief Financial Officer | |||||||||
Dieter Schapfel, M.D |
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| 56 |
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| 2014 | Chief Medical Director, Enzo Clinical Labs | |||||||||
Kara Cannon |
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| 51 |
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| 2018 | Corporate Vice President, Commercial | |||||||||
Bruce A. Dey |
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| 61 |
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| 2014 | Vice President of Sales, Enzo Clinical Labs | |||||||||
Dov Perlysky |
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| 57 |
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| 2012 | Director | |||||||||
Bruce A. Hanna, Ph.D.(1) |
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| 76 |
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| 2017 | Director | |||||||||
Rebecca J. Fischer(1) |
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| 52 |
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| 2019 | Director | |||||||||
We believe that Dr. Walter’s qualifications to serve on the Board are demonstrated by his professional background, experience in the healthcare field, and other current and past board and management positions, making him well qualified as a member of our Board. MARY TAGLIAFERRI, M.D., has been a director of the Company since November 17, 2020. Dr. Tagliaferri is currently Chair of the Company’s Board of Directors, chair of the Company’s Nominating/Governance Committee and a member of both the Company’s Audit Committee and Compensation Committee. Dr. Tagliaferri has been serving on the board of directors of RayzeBio, Inc., a biotechnology company, since October 2021. Dr. Tagliaferri has been serving as Senior Vice President and Executive Clinical Fellow for Nektar Therapeutics, a Nasdaq-listed company, since March 2020 and previously served as Chief Medical Officer from November 2017 to March 2020, Senior Vice President, Clinical Development from April 2017 to October 2017 and Vice President of Clinical Development from January 2015 to March 2017. Dr. Tagliaferri served as Consultant for InterMune from March 2014 to December 2014. Dr. Tagliaferri served as Chief Medical Officer of Kanglaite, Inc. from October 2012 to April 2014. Dr. Tagliaferri was the co-founder of Bionovo, Inc. and served as its Chief Medical Officer, Chief Regulatory Officer, Secretary and Treasurer and a member of the Board of Directors from February 2002 to June 2012 and President from May 2007 to June 2012. Dr. Tagliaferri received her Bachelor of Science Degree in Agricultural Economics and Business Management from Cornell University in 1988, Post Baccalaureate Degree in Science from Bryn Mawr College in 1996, Master of Science Degree, Oriental Medicine from the American College of Traditional Chinese Medicine, San Francisco, California in 1995 and Medical Degree from the University of California, San Francisco in 2002. Dr. Tagliaferri completed her residency in internal medicine at Alameda County Medical Center, Oakland, California, in 2003 and a research fellowship in translational science at the University of California, San Francisco in 1999. She has contributed to approximately 70 publications. We believe that Dr. Tagliaferri’s qualifications to serve on the Board are demonstrated by her professional background, experience in the healthcare field and past board position, making her well qualified as a member of our Board. |
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Family Relationships
There are no family relationshipsrelationship of first cousins or closer, among the Company’s directors nominees for director and executive officers, by blood, marriage or adoption, except that Dr. Elazar Rabbani and Barry W. Weiner are brothers-in-law.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF MS. FISCHER AS A CLASS I DIRECTOR OF THE COMPANY AND “FOR” THE ELECTION OF MR. WEINER AS A CLASS III DIRECTOR OF THE COMPANY. THE BOARD MAKES NO RECOMMENDATION ON THE HARBERT NOMINEES.Shareholders voting usingDirector Independence
Dr. Mary Tagliaferri, Dr. Ian B. Walters, and Mr. Radoff qualify as “Independent Directors” under the enclosedGOLD proxy card willcriteria established by the NYSE.
CORPORATE GOVERNANCE
Corporate Governance Review and Shareholder Engagement
The Board and management are committed to responsible corporate governance to ensure that the Company is managed for the long-term benefit of its shareholders. To that end, for the past three years the Company has conducted regular outreach to its top shareholders as part of its commitment to be unableresponsive to cast a voteshareholder concerns. In 2021, we engaged with many of our top institutional shareholders that collectively own over 60% of our Common Stock. During the past year, as in prior years, the Board and management have reviewed and updated, as appropriate, the Company’s corporate governance policies and practices, including the Company’s Amended and Restated By-Laws, as amended (the “By-Laws”), incorporating feedback received during the course of the Company’s engagements, which have become more focused on Board and governance matters over the past year. In an effort to further its commitment to responsible corporate governance, the Board:
| ● | adopted a Diversity Policy with respect to the evaluation of director nominees; and |
| ● | amended its Lead Independent Director Charter to strengthen the duties of the Lead Independent Director role. |
Corporate Governance Policies and Practices
The Company has a variety of policies and practices to foster and maintain responsible corporate governance, including the following:
Corporate Governance Guidelines - The Board adopted Corporate Governance Guidelines, which collect in one document many of the corporate governance practices and procedures that had evolved over the years. These guidelines address the duties of the Board, director qualifications and selection process, Board operations, Board committee matters and continuing education. The guidelines also provide for annual self-evaluations by the Board and its committees. The Board reviews these guidelines on an annual basis. The guidelines are available on the Company’s website at www.enzo.com and in print by contacting Investor Relations at (212) 583-0100.
Corporate Code of Business Conduct and Ethics - The Company has a Code of Business Conduct and Ethics that applies to all of the Company’s employees, officers and members of the Board. The Code of Business Conduct and Ethics is available on the Company’s website at www.enzo.com and in print by contacting Investor Relations at (212) 583-0100.
Board Committee Charters - Each of the Company’s Audit, Compensation and Nominating/ Governance Committees has a written charter adopted by the Board that establishes practices and procedures for such committee in accordance with applicable corporate governance rules and regulations. The charters are available on the Company’s website at www.enzo.com and in print by contacting Investor Relations at (212) 583-0100.
Diversity Policy - As part of the Company’s commitment to improved governance and in connection with the Company’s shareholder engagement program, the Board adopted a diversity policy in 2019. The Nominating/Governance Committee shall consider diversity in its evaluation of candidates for Board membership in accordance with this policy. To reflect this policy, the Nominating/Governance Committee seeks to include diverse candidates in all director searches, taking into account diversity of age, gender, race, culture, business experience, education, skills, character and judgment, including by affirmatively instructing any search firm retained to assist the Nominating/Governance Committee in identifying director candidates, to seek to include diverse candidates from traditional and non-traditional candidate groups.
Director Term Limits - The total cumulative length of time an Outside Director may serve on the Board is limited to a maximum of three, three-year terms, whether consecutively or in total, plus any portion of an earlier three-year term that such Outside Director may have been appointed to serve. The term limit set forth above may be extended for a maximum of one additional term if such individual is re-nominated by the unanimous agreement of the Board. Our Board has conditionally approved an amendment to our Bylaws whereby, if Proposal 1 is approved and adopted by the stockholders at the Annual Meeting, then the total cumulative length of time an Outside Director may serve on the Board is limited to a maximum of nine years, whether consecutively or in total, plus any portion of an earlier term that such Outside Director may have been appointed to serve.
Lead Independent Director Charter - As part of the Company’s ongoing commitment to improved governance and in connection with the Company’s shareholder engagement program, the Company amended the Lead Independent Director Charter in 2019 to strengthen the duties of the Lead Independent Director role. The duties of the Lead Independent Director, as set forth in the amended Lead Independent Director Charter, among other things, are to:
| ● | develop the agendas for and serve as chairman of the executive sessions of the independent directors of the Company; |
| ● | serve as principal liaison between the independent directors of the Company and the Chairman of the Board and between the independent directors and senior management; |
| ● | approve the agendas for Board meetings; |
| ● | call meetings of the independent directors; |
| ● | approve the appropriate schedule of Board meetings; advise the Chairman of the Board as to the quality, quantity and timeliness of the information submitted by the Company’s management that is necessary or appropriate for the independent directors to effectively and responsibly perform their duties; |
| ● | ensure that independent directors have adequate opportunities to meet and discuss issues in executive sessions without management present; if the Chairman of the Board is unable to attend a Board meeting, act as chairman of such Board meeting; |
| ● | ensure that he or she may be available for consultation and direct communication with major shareholders, if deemed appropriate, and act as a contact for other interested persons, if other Company spokespersons are not available; |
| ● | share with other directors, as he or she deems appropriate, letters and other communications and contact that he or she receives; |
| ● | and perform such other duties as the Board shall from time to time delegate. |
In addition, the Lead Independent Director may require information relating to any matter be distributed to the Harbert Nominees and shareholders wishing to vote for the Harbert Nominees must vote on a blue proxy card provided by Harbert.
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If you previously submittedThe Lead Independent Director Charter, as amended, is available on the Company’s website at www.enzo.com, and in print by contacting Investor Relations at (212) 583-0100.
Director Independence Requirements
The Board believes that a whitemajority of its members should be independent, non-employee directors. The Board adopted the following “Director Independence Standards,” which are consistent with criteria established by the NYSE, to assist the Board in making these independence determinations:
No director can qualify as independent if he or blue card, votes cast for either Mr. Weiner and/she has a material relationship with the Company outside of his or Dr. Hanna willher service as a director of the Company. A director is not be countedindependent if, within the preceding three years:
| ● | the director was an employee of the Company; |
| ● | an immediate family member of the director was an executive officer of the Company; |
| ● | the director was affiliated with or employed by a present or former internal or external auditor of the Company; |
| ● | an immediate family member of the director was affiliated with or employed in a professional capacity by a present or former internal or external auditor of the Company; |
| ● | the director, or an immediate family member of the director, received more than $120,000 per year in direct compensation from the Company, other than director and committee fees and pension or other forms of deferred compensation for prior services (provided such compensation is not contingent in any way on continued service); |
| ● | the director, or an immediate family member of the director, was employed as an executive officer of another company where any of the Company’s executives served on that company’s compensation committee of the board of directors; |
| ● | the director was an executive officer or employee, or an immediate family member of the director was an executive officer, of another company that made payments to, or received payments from, the Company for property or services in an amount which, in any single fiscal year, exceeded the greater of $1 million or two percent (2%) of such other company’s consolidated gross revenues; |
| ● | the director, or an immediate family member of the director, was an executive officer of another company that was indebted to the Company, or to which the Company was indebted, where the total amount of either company’s indebtedness to the other was five percent (5%) or more of the total consolidated assets of the company he or she served as an executive officer; or |
| ● | the director, or an immediate family member of the director, was an officer, director or trustee of a charitable organization where the Company’s annual discretionary charitable contributions to the charitable organization exceeded the greater of $1 million or two percent (2%) of that organization’s consolidated gross revenues. |
The Board has reviewed all material transactions and relationships among each director, and any member of his or her immediate family, and the Company, its senior management and its independent auditors. Based on this review and in accordance with respectits independence standards outlined above, the Board has affirmatively determined that all of the non-employee directors are independent as such term is defined by the NYSE.
Board Leadership Structure and Role in Risk Oversight
During the fiscal year ended July 31, 2021, Elazar Rabbani, Ph.D., served as the Company’s Chairman of the Board, Chief Executive Officer, and Secretary. He served as Chairman and Chief Executive Officer since the Company’s inception in 1976 and as Secretary since November 2009. On October 18, 2021, the Company announced the appointment of Hamid Erfanian to the proposalposition of Chief Executive Officer, which appointment commenced on November 8, 2021. In addition, the Company had a Lead Independent Director from October 2005 until January 2022, when Dr. Mary Tagliaferri was appointed the Company's Chair of the Board. Dr. Tagliaferri qualifies as an “Independent Director” under the criteria established by the NYSE and the Company and thus, after her appointment, the Board decided not to elect two Class II Directorsfill the role of Lead Independent Director.
The Company believes that this structure promotes effective oversight, strengthens our Board’s independent leadership, and supports our commitment to enhancing shareholder value and strong governance.
As described above, three of the Company’s five directors are independent. In addition, all of the directors on each of the Audit Committee, Compensation Committee and Nominations and Corporate Governance Committee are independent directors and each of these committees is led by a committee chair. The committee chairs set the agendas for their committees and report to the full Board. All of the independent directors are highly accomplished and experienced business people in their respective fields, have demonstrated leadership in significant enterprises and are familiar with board processes. The Company’s independent directors bring experience, oversight and expertise from outside the Company and industry.
Additionally, the Company had a Lead Independent Director from October 2005 until January 2022, whose duties, among other things, are to approve the agendas for all Board meetings, call and lead the executive sessions of the independent directors of the Company, be available for engagement with major shareholders, serve as neither Mr. Weiner norliaison between the independent directors of the Company on one hand and senior management on the other hand, advise the Chairman of the Board as to the quality, quantity and timeliness of the information submitted by management to the independent directors; and perform such other duties as the Board shall from time to time delegate. Because Dr. Hanna remain upTagliaferri, the Company's Chair of the Board., qualifies as an “Independent Director” under the criteria established by the NYSE and the Company, the Board has decided not to fill the role of Lead Independent Director at this time.
While the Board is responsible for overseeing the Company’s risk management, the Board has delegated many of these functions to the Audit Committee. Under its charter, the Audit Committee is responsible for discussing the Company’s major financial risk exposures, the guidelines and policies by which risk assessment and management is undertaken, and the steps management has taken to monitor and control risk exposure with management and the independent auditors. In addition to the Audit Committee’s work in overseeing risk management, the full Board regularly engages in discussions regarding the most significant risks that the Company is facing and how those risks are being managed. The Board also receives risk management updates directly from the Company’s senior management and from the chair of the Audit Committee. The Board believes that the work undertaken by the Audit Committee, the full Board and the Chairman of the Board, enables the Board to effectively oversee the Company’s risk management function.
Board Nomination Policies and Procedure
The Nominating/Governance Committee is responsible for identifying, evaluating and recommending candidates for election as Class II Directors. Votes castto the Board, with due consideration for recommendations made by other Board members, the Chief Executive Officer and other sources, including shareholders. The total cumulative length of time that any Outside Director may serve on the white cardBoard is limited to a maximum of three three-year terms, whether consecutively or in total, plus any portion of an earlier three-year term that such Outside Director may have been appointed to serve. The term limit set forth above may be extended for a maximum of one additional term if such individual is renominated by the unanimous agreement of the Board. The Nominating/Governance Committee also considers the appropriate balance of experience, skills and characteristics desirable among the members of the Board to maintain a diverse Board. The independent members of the Board review the Nominating/Governance Committee candidates and nominate candidates for election by the Company shareholders. The Nominating/Governance Committee will no longerconsider candidates for election to the Board recommended by shareholders of the Company. The procedures for submitting shareholder recommendations are explained below under “Shareholder Proposals.”
Directors must also possess the highest personal and professional ethics, integrity and values and be countedcommitted to representing the long-term interests of all shareholders. Board members are expected to diligently prepare for, purposesattend and participate in Board and applicable committee meetings. Each Board member is expected to ensure that other existing and future commitments do not materially interfere with the member’s service as a director.
The Nominating/Governance Committee also reviews whether a potential candidate will meet the Company’s independence standards and any other director or committee membership requirements imposed by law, regulation or NYSE rules.
The Nominating/Governance Committee will consider, among other factors, the following to evaluate recommended nominees:
| ● | the Board’s current composition, including expertise, diversity, balance of management and non-management directors; |
| ● | independence and other qualifications required or recommended by applicable laws, rules and regulations (including NYSE requirements) and the Company’s policies and procedures; and |
| ● | the general qualifications of potential nominees, including, but not limited to: personal integrity, loyalty to the Company and concern for its success and welfare; experience with strategy and policy setting; high-level leadership experience in business; breadth of knowledge about issues affecting the Company; an ability to work effectively with others; sufficient time to devote to the Company; and freedom from conflicts of interest. |
Director candidates recommended to the Nominating/Governance Committee are subject to full Board approval and subsequent election by the shareholders. The Board is also responsible for electing directors to fill vacancies on the Board that occur due to retirement, resignation, expansion of electing Mr. Weinerthe Board or other reasons between the annual meetings of shareholders. The Nominating/Governance Committee may retain a recruitment firm, from time to time, to assist in identifying and evaluating director candidates. When a firm is used, the Nominating/Governance Committee provides specified criteria for director candidates, tailored to the needs of the Board at that time, and pays the firm a fee for these services. Suggestions for director candidates are also received from Board members, management, shareholders and may be solicited from professional associations as well.
Board Committees
All members of each of the Company’s three standing committees - Audit, Compensation and Nominating/Governance - are required to meet the Company’s Director Independence Standards as well as the independent director standards established by NYSE. See below for a description of the responsibilities of the Board’s standing committees.
Executive Sessions of Non-Management Directors
The Board periodically holds meetings of only the independent directors without management or other board members present.
Board Access to Independent Advisors
The Board as a whole, and each of the Board committees separately, has authority to retain and terminate such independent consultants, counselors or advisors to the Board as each shall deem necessary or appropriate.
Communications with the Board
Direct Communications - Any interested party desiring to communicate with the Board or with any director regarding the Company may write to the Board or the Secretary c/o Elazar Rabbani, Office of the Secretary, Enzo Biochem, Inc., 527 Madison Avenue, New York, New York 10022. The Office of the Secretary will forward all such communications to the director(s). Interested parties may also submit an email by filling out the email form on the Company’s website at www.enzo.com. Moreover, any interested party may contact the non-management directors of the Board by emailing the Lead Independent Director or asking the Chairman to share information with the non-management members.
Annual Meeting - The Company encourages its directors to attend the annual meeting of shareholders each year. All directors attended the Annual Meeting of Shareholders held in January 2021.
Meetings of the Board and its Committees
During the fiscal year ended July 31, 2021, there were eighteen formal meetings of the Board, and several informal meetings. None of the directors attended less than 75% of the meetings of the Board (including committee meetings).
Currently, the Board has a Nominating/Governance Committee, an Audit Committee and a Compensation Committee. The Nominating/Governance Committee had one formal meeting, the Audit Committee had four formal meetings and the Compensation Committee had one formal meeting. Each of the committees also had informal meetings.
The Audit Committee was established by and among the Board for the purpose of overseeing the accounting and financial reporting processes of the Company and audits of the financial statements of the Company as defined in Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Audit Committee is authorized to review proposals of the Company’s auditors regarding the annual audit, recommend the engagement or discharge of the auditors, review recommendations of such auditors concerning accounting principles and the adequacy of internal controls and accounting procedures and practices, review the scope of the annual audit, approve or disapprove each professional service or type of service other than standard auditing services to be provided by the auditors, and review and discuss the audited financial statements with the auditors. The current members of the Audit Committee are Mr. WeinerRadoff, Dr. Tagliaferri and Dr. Walters. Mr. Radoff has been the Chair of the Committee since January 2022. The Board has determined that each of the Audit Committee members is now upindependent, as defined in the NYSE’s listing standards and applicable SEC Rules. The Board has further determined that Ms. Fischer is an “audit committee financial expert” as such term is defined under Item 407(d)(5)(ii) of Regulation S-K promulgated under the Exchange Act, and that each director is financially literate as required under the NYSE listing standards.
The Compensation Committee has the power and authority to (i) establish a general compensation policy for the officers and employees of the Company, including to establish and at least annually review executive officers’ salaries and non-equity incentive compensation plan program and levels of officers’ participation in the benefit plans of the Company, (ii) prepare any reports that may be required by the regulations of the SEC or otherwise relating to officer compensation, (iii) approve any increases in directors’ fees, (iv) grant stock options and/or other equity instruments authorized by senior executives for non-executive officers and (v) exercise all other powers of the Board with respect to matters involving the compensation of employees and the employee benefits of the Company as shall be delegated by the Board to the Compensation Committee. The current members of the Compensation Committee are Mr. Radoff, Dr. Tagliaferri and Dr. Ian B. Walters. The Board has determined that each member of the Compensation Committee is independent, as defined in the NYSE listing standards. Dr. Walters has been the Chairman of the Compensation Committee since January 2021.
The Nominating/Governance Committee has the power to recommend to the Board prior to each annual meeting of the shareholders of the Company: (i) the appropriate size and composition of the Board; and (ii) nominees: (1) for election to the Board for whom the Company should solicit proxies; (2) to serve as proxies in connection with the annual meeting of shareholders; and (3) for election to all committees of the Board other than the Nominating/Governance Committee. The Nominating/Governance Committee will consider nominations from the shareholders, provided that they are made in accordance with the By-Laws. When evaluating prospective director candidates, the Nominating/Governance Committee conducts individual evaluations against the criteria stated in the Nominating and Corporate Governance guidelines. All director candidates, regardless of the source of their nomination, are evaluated using the same criteria. The current members of the Nominating/Governance Committee are Mr. Radoff, Dr. Walters and Dr. Tagliaferri, who has been Chair of the committee since January 2021.
AUDIT COMMITTEE REPORT
In connection with the preparation and filing of the Company’s Annual Report on Form 10-K for its fiscal year ended July 31, 2021:
| 1. | The Audit Committee reviewed and discussed the audited financial statements and related footnotes with management and EisnerAmper LLP, the current independent registered public accounting firm. Management represented to the Audit Committee that the Company’s financial statements were prepared in accordance with U.S. generally accepted accounting principles (“GAAP”); |
| 2. | The Audit Committee discussed with the independent registered public accountants matters required to be discussed under the Public Company Accounting Oversight Board (the “PCAOB”) Auditing Standard No. 1301, Communications with Audit Committees; |
| 3. | The Audit Committee reviewed the written disclosures and the letter from the independent registered public accountants required by the applicable requirements of the PCAOB, as may be modified or supplemented, regarding the independent registered public accounting firm’s communication with the Audit Committee concerning independence and discussed with EisnerAmper LLP their independence; |
| 4. | The Audit Committee discussed with the Company’s independent registered public accountants the overall scope and plans for its audit. The Audit Committee met with the independent registered public accountants with and without management present, to discuss the results of their examinations, their evaluations of the Company’s internal controls, and the overall quality (and not merely the acceptability) of the Company’s accounting principles and financial reporting, the reasonableness of significant estimates and judgments, and the disclosures in the Company’s financial statements, including the disclosures relating to critical accounting policies. The Audit Committee held four formal meetings during the fiscal year ended July 31, 2021 with the independent registered public accounting firm; and |
| 5. | Based on the review and discussions referred to above, the Audit Committee recommended to the Board that the audited financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended July 31, 2021 for filing with the SEC. We also selected EisnerAmper LLP as the independent registered public accounting firm for fiscal 2022. The Board is recommending that shareholders ratify that selection at the Annual Meeting. |
Submitted by the members of the Audit Committee on October 4, 2021:
Rebecca J. Fischer, Chair
Dov Perlysky
Dr. Mary Tagliaferri
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
It is the responsibility of the Nominating/Governance Committee to consider questions of possible conflicts of interest of directors and of the Company’s senior executives, which includes the consideration of all transactions required to be disclosed pursuant to the SEC’s related person disclosure requirements. In addition, the Board has a Related Persons Policy which states that all related person transactions shall be in the best interests of the Company and, unless different terms are specifically approved or ratified by disinterested members of the Board, must be on terms that are (i) no less favorable to the Company than would be obtained in a similar transaction with an unaffiliated third party under the same or similar circumstances, or (ii) generally available to substantially all employees of the Company. In addition, if any non-material or material related person transaction relates to any executive officer or director, it must be reviewed by the Nominating/Governance Committee who shall determine whether the transaction is in compliance with the Company’s Related Person Policy.
Enzo Clinical Labs, Inc., a subsidiary of the Company (“Enzo Lab”), leases a facility located in Farmingdale, New York from Pari Management Corporation (“Pari”). Pari is owned equally by Elazar Rabbani, Ph.D., a director and Secretary of the Company; Shahram K. Rabbani, a former officer and former director of the Company; and Barry Weiner, the President and Treasurer of the Company, and his wife. The lease originally commenced on December 20, 1989, was amended and extended in October 2015 and now terminates on March 31, 2027. During the fiscal year ended July 31, 2021, Enzo Labs paid approximately $1,815,000 to Pari with respect to such facility and future payments are subject to cost of living adjustments.
The non-interested members of the Board, at the time of the execution of the lease and each extension, reviewed and approved the transaction in accordance with the Company’s procedures for reviewing related party transactions. The Nominating/Governance Committee obtained a third-party appraisal to determine the value of the lease. Based on that appraisal, the Company, which has guaranteed Enzo Lab’s obligations to Pari under the lease, believes that the existing lease terms are as favorable to the Company as it would be to an unaffiliated party.
CODE OF BUSINESS CONDUCT AND ETHICS
The Company has adopted a Code of Business Conduct and Ethics (as such term is defined in Item 406 of Regulation S-K). The Code of Business Conduct and Ethics is available on the Company’s website at www.enzo.com, and in print by contacting Investor Relations at (212) 583-0100. The Code of Business Conduct and Ethics applies to the Company’s employees, officers and members of the Board. The Code of Business Conduct and Ethics has been designed to deter wrongdoing and to promote:
| ● | Honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; |
| ● | Full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the SEC and in other public communications made by the Company; |
| ● | Compliance with applicable governmental laws, rules and regulations; |
| ● | The prompt internal reporting or violations of the Code of Business Conduct and Ethics to an appropriate person or persons identified in the Code of Business Conduct and Ethics; and |
| ● | Accountability for adherence to the Code of Business and Conduct and Ethics. |
COMPENSATION OF DIRECTORS
Each Outside Director receives an annual director’s fee of $30,000. The Lead Independent Director receives an additional annual director’s fee of $25,000. Each Outside Director who serves on a Board committee also receives an annual fee of $7,500. The Chairman of the Audit Committee receives an additional annual fee of $20,000 and the Chairman of the Compensation Committee and the Chairman of the Nominating/Governance Committee each receive an additional annual fee of $10,000. The Outside Directors receive either stock options or restricted stock units following the Annual Meeting, provided such person is a director of the Company at such time. The annual number of stock options or restricted stock units that the Outside Directors will be granted will not exceed a different class forfair market value of $100,000 at the time of grant. Either the stock options or restricted stock units shall be subject to a different term. Dr. Hanna no longer stands for election astwo-year vesting period; provided that at the time any non-employee director ceases to be a director of any class. However, votes cast on anythe Company (other than due to such director’s resignation), such non-employee director’s stock options and restricted stock units will become fully vested at such time. The equity instruments are granted at the Black-Scholes value in the case of options, or at the market price of the other remaining proposals using eitherCommon Stock on the date of grant in the case of restricted stock units. Stock options have a term of up to five (5) years. The Company reimburses directors for their travel and related expenses in connection with attending meetings of the two white proxy cards will be counted. Furthermore, even thoughBoard and Board-related activities. Independent directors may also receive additional compensation for attendance at additional meetings and other extraordinary matters.
Director Compensation Table
The following table sets forth the proposalinformation concerning compensation earned during our fiscal year ended July 31, 2021 by all non-employee Directors (table format below):
| Name | Fees Earned or Paid in Cash | Restricted Stock/Stock Options Awards(1) | Change in Pension Value and Non-Qualified Deferred Compensation Earnings | All Other Compensation | Total | |||||||||||||||
| Dov Perlysky(2) Lead Independent Director | $ | 90,000 | $ | 100,000 | — | — | $ | 190,000 | ||||||||||||
Rebecca J. Fischer(2) Director | $ | 85,000 | $ | 100,000 | — | — | $ | 185,000 | ||||||||||||
| Mary Tagliaferri, M.D. Director | $ | 80,400 | $ | 100,000 | — | — | $ | 180,400 | ||||||||||||
Ian B. Walters, M.D. Director | $ | 75,000 | $ | 100,000 | — | — | $ | 175,000 | ||||||||||||
| (1) | Represents the grant fair value on the respective grant date for the fiscal year ended July 31, 2021, in accordance with accounting authoritative guidance. The assumptions used in calculating these amounts are set forth in Note 12 to the Company’s consolidated financial statements for the fiscal year ended July 31, 2021, included in the Company’s Annual Report on Form 10-K for the fiscal year ended July 31, 2021 filed with the SEC on November 12, 2021. |
| (2) | Mr. Perlysky and Ms. Fischer resigned from the Board in January 2022. |
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COMPENSATION OF EXECUTIVE OFFICERS
Summary Compensation Table
The following table sets forth summary information concerning compensation awarded to, elect two Class II Directors has been redesignated as proposal 2, any votes cast in favorpaid to or earned by each of our named executive officers for each of the Harbert Nominees on the blue proxy card provided by Harbert will still be counted.
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| Name and Principal Position | Year | Base Pay Salary(1) | Option Awards(2) | Performance Stock Units Award(3) | Non-Equity Incentive Plan Compensation(4) | All Other Compensation(5) | Total | |||||||||||||||||||||
| Elazar Rabbani, Ph.D. | 2021 | $ | 611,000 | $ | - | $ | - | $ | - | (8) | $ | 197,621 | $ | 808,621 | ||||||||||||||
| Director and Secretary, | 2020 | $ | 611,000 | $ | 112,400 | $ | 69,740 | $ | 500,000 | (9) | $ | 194,661 | $ | 1,487,801 | ||||||||||||||
| Former Chairman and Chief Executive Officer (6) | ||||||||||||||||||||||||||||
| Barry W. Weiner | 2021 | $ | 542,000 | $ | - | $ | - | $ | - | (8) | $ | 181,518 | $ | 723,518 | ||||||||||||||
| President and Treasurer, Former Chief Financial Officer (7) | 2020 | $ | 542,000 | $ | 101,000 | $ | 55,600 | $ | 375,000 | (9) | $ | 177,949 | $ | 1,251,607 | ||||||||||||||
| Dieter Schapfel, M.D. | 2021 | $ | 330,000 | $ | 72,131 | $ | - | $ | - | (8) | $ | 14,032 | $ | 416,163 | ||||||||||||||
| Chief Medical Director, | 2020 | $ | 330,000 | $ | 49,000 | $ | 29,260 | $ | 60,000 | $ | 13,532 | $ | 481,792 | |||||||||||||||
| Enzo Clinical Labs | ||||||||||||||||||||||||||||
| (1) | Base salaries set as of January 1 each year. |
| (2) | Represent the fair market value of incentive stock option awards granted to Named Executive Officers and Key Employees on the date of grant, calculated in accordance with FASB ASC Topic 718 for all awards of stock options granted during the relevant fiscal year. Assumptions used in the calculation of these amounts are included in Note 12 to the Notes to Consolidated Financial Statements in our Annual Report on Form 10-K for the year ended July 31, 2021. |
| (3) | Represents the grant date fair value of performance stock units granted in the applicable year, calculated in accordance with ASC 718. The amount included in 2020 for the performance stock unit awards are calculated based on the closing market price of the Company’s common stock and the probable satisfaction of the performance conditions for such awards as of the date of grant. Assuming the highest level of performance is achieved for the 2020 performance share unit awards, the maximum value of these awards at the grant date would be as follows: Dr. Rabbani-$104,610; Mr. Weiner-$83,490; and Dr. Schapfel-$43,890. Assumptions used in the calculation of these amounts are included in Note 12 to the Notes to Consolidated Financial Statements in our Annual Report on Form 10-K for the year ended July 31, 2021. |
| (4) | Represents awards accrued under the Pay for Performance Plan for the years ended July 31, 2021 and 2020. |
| (5) | See the “All Other Compensation” chart for additional information. |
| (6) | Dr. Rabbani served as Chief Executive Officer during our entire fiscal year ended July 31, 2021 and until November 8, 2021 when Mr. Hamid Erfanian started his tenure as our Chief Executive Officer. |
| (7) | Barry W. Weiner served as Chief Financial Officer during our fiscal year ended July 31, 2020 until December 2019 when Mr. David Bench started his tenure as our Chief Financial Officer. |
| (8) | The fiscal year 2021 non-equity incentive plan compensation is not calculable at this time, as amounts remain subject to determination by our Board of Directors. Such amounts are expected to be determined in January 2022. |
| (9) | The fiscal year 2020 non-equity incentive plan compensation for Elazar Rabbani and Barry Weiner of $500,000 and $375,000 respectively, was settled in the form of 190,114 and 142,586 shares of three year restricted common stock, respectively in lieu of cash on January 11, 2021, at the closing price of $2.63 per share. |
All Other Compensation
The following table contains information regarding each component of “All Other Compensation” in the Summary Compensation Table to the Named Executive Officers and Key Employees for the fiscal years ended July 31, 2021 and 2020.
| Year | 401(k)(1) | Life Insurance(2)(3) | Medical and Disability Insurance(4) | Personal Use of Auto(5) | Total All Other Compensation | |||||||||||||||
| Elazar Rabbani, Ph.D. | 2021 | $ | 13,000 | $ | 105,212 | $56,499 | $ | 22,910 | $ | 197,621 | ||||||||||
| 2020 | $ | 12,500 | $ | 105,212 | $54,038 | $ | 22,910 | $ | 194,661 | |||||||||||
| Barry W. Weiner | 2021 | $ | 13,000 | $ | 100,623 | $40,625 | $ | 27,270 | $ | 181,518 | ||||||||||
| 2020 | $ | 12,500 | $ | 100,623 | $39,966 | $ | 24,860 | $ | 177,949 | |||||||||||
| Dieter Schapfel, M.D. | 2021 | $ | 13,000 | $ | 1,032 | — | — | $ | 14,032 | |||||||||||
| 2020 | $ | 12,500 | $ | 1,032 | — | — | $ | 13,532 |
| (1) | Represents Company matches under our 401(k) plan. |
| (2) | Represents premiums of term policies of which the Named Executive Officers or other party is the beneficiary. |
| (3) | Represents the contractual payment for life insurance reimbursement for Dr. Rabbani and Mr. Weiner. |
| (4) | Represents supplemental medical and disability benefits costs. |
| (5) | Represents the personal use of Company-provided auto or car allowance. |
Employment Agreements
Mr. Barry Weiner and Dr. Elazar Rabbani (each, an “Executive”) are parties to employment agreements with the Company, effective May 4, 1994, as subsequently amended (the “Employment Agreements”). Each Executive also receives a non-equity incentive plan bonus - the amount of which shall be determined by the Compensation Committee and/or the Board based on approved financial and non-financial objectives. Each Employment Agreement provides that, in the event of termination of employment by the Executive for “good reason,” or a termination of employment by the Company without “cause”, change in control or nonrenewal, as such terms are defined in the Employment Agreement, each Executive shall be entitled to receive: (i) a lump sum in an amount equal to three years of the Executive’s base annual salary; (ii) a lump sum in an amount equal to the annual bonus paid by the Company to the Executive for the last fiscal year of the Company ending prior to the date of termination multiplied by three; (iii) insurance coverage for the Executive and his dependents, at the same level and at the same charges to the Executive as immediately prior to his termination, for a period of three (3) years following his termination from the Company; (iv) all accrued obligations, as defined therein; and (v) with respect to each incentive pay plan (other than stock option or other equity plans) of the Company in which the Executive participated at the time of termination, an amount equal to the amount the Executive would have earned if he had continued employment for three additional years. If the Executive is terminated by reason of his disability, he shall be entitled to receive, for three years after such termination, his base annual salary less any amounts received under a long-term disability plan. If the Executive’s employment with the Company is terminated by reason of his death, his legal representatives shall receive the balance of any remuneration due him under the terms of his Employment Agreement. The Employment Agreements were amended on January 5, 2017 and automatically renew for successive two-year periods unless notice is given to the Company within 180 days of the end of such successive term.
Dieter Schapfel, M.D. is an “at will” employee and not party to any employment agreement.
Benefits and All Other Compensation
We maintain broad-based benefits that are provided to all employees, including health and dental insurance, group life insurance and a 401(k) plan. Named Executive Officers and Key Employees are eligible to participate in our employee benefit plans. The annual Company match for our Named Executive Officers and other employees is up to $13,000 if over 50 years old, or limited to 50% of the maximum contribution made.
Certain of our Named Executive Officers may be entitled to benefits that are not otherwise available to all of our employees, including supplemental health, life insurance and disability benefits. We do not provide post-retirement health coverage to our Named Executive Officers or our employees. Our health and insurance plans are substantially the same among all management levels at the Company. Dr. Rabbani and Mr. Weiner are provided life insurance benefits in connection with their total compensation arrangements.
In particular circumstances, we may provide relocation allowances when executives first join us. The purpose of this program is to attract talented executives outside our geographic area. Certain Named Executives Officers and Key Employees are provided use of a Company-owned vehicle for business and personal use or provided a car allowance.
Severance and Change in Control Benefits
Pursuant to Employment Agreements entered into with Dr. Rabbani and Mr. Weiner, these executives are entitled to specified benefits in the event of the termination of their employment under specified circumstances, including termination for good reason, termination for cause, and termination following a change of control of our Company (as defined in each executive’s Employment Agreement). We have provided more information about these benefits in the description of the Employment Agreements above.
Dieter Schapfel, M.D. is an “at will” employee and not party to any agreement with the Company that provides for severance or change of control benefits other than certain equity award agreements that provide for the acceleration of unvested awards upon Dr. Schapfel’s termination after a change of control.
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Outstanding Equity Awards at Fiscal Year End—July 31, 2021
The following table sets forth summary information regarding the outstanding equity awards made to the Named Executive Officers and Key Employees at July 31, 2021.
| Options Awards | Performance Stock Awards | |||||||||||||||||||||
| Name | Number of Securities Underlying Unexercised Options Exercisable | Number of Securities Underlying Unexercised Options Unexercisable(1) | Option Exercise Price | Options Expiration Date | Equity Incentive Plan; Number of Unearned Shares, Units or Other Rights That Have Not Vested(2) | Equity Inventive Plan Awards; Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested(3) | ||||||||||||||||
| Elazar Rabbani, Ph.D. | 75,000 | — | $ | 7.07 | 1/5/2022 | — | — | |||||||||||||||
| 90,000 | — | $ | 4.42 | 7/31/2023 | — | — | ||||||||||||||||
| 128,000 | — | $ | 2.80 | 1/3/2024 | 25,000 | (4) | $ | 122,250 | ||||||||||||||
| 65,000 | 65,000 | $ | 2.20 | 2/24/2025 | 31,700 | (5) | $ | 155,013 | ||||||||||||||
| Barry W. Weiner | 65,000 | — | $ | 7.07 | 1/5/2022 | — | — | |||||||||||||||
| 80,000 | — | $ | 4.42 | 7/31/2023 | — | — | ||||||||||||||||
| 115,000 | — | $ | 2.80 | 1/3/2024 | 20,000 | (4) | $ | 97,800 | ||||||||||||||
| 58,450 | 58,450 | $ | 2.20 | 2/24/25 | 25,300 | (5) | $ | 123,717 | ||||||||||||||
| Dieter Schapfel, M.D. | 27,000 | — | $ | 7.07 | 1/5/2022 | — | — | |||||||||||||||
| 35,000 | — | $ | 4.42 | 7/31/2023 | — | — | ||||||||||||||||
| 17,333 | — | $ | 2.80 | 1/3/2024 | — | $ | — | |||||||||||||||
| 18,467 | 36,933 | $ | 2.20 | 2/24/25 | 10,500 | (4) | $ | 51,345 | ||||||||||||||
| 18,467 | 36,933 | $ | 2.63 | 1/11/26 | 13,300 | (5) | $ | 65,037 | ||||||||||||||
| (1) | Each option award vests in equal amounts on the first, second and third anniversaries of the award which was January 5, 2017 for the options granted at $7.07 per share, July 31, 2018 for the options granted at $4.42 per share, January 3, 2019 for the options granted at $2.80 per share, February 24, 2020 for the options granted at $2.20 per share, and January 11, 2021 for the options granted at $2.63 per share. For Dr. Rabbani and Mr. Weiner, options vest in equal amounts on the first and second anniversary dates. |
| (2) | The number of unearned performance stock options (“PSUs”) in this column is based on awards made during the 2019 and 2020 fiscal years and equals the target number of PSUs that may be earned based on the Company’s Revenue and Adjusted EBITDA during the 2020 through 2022, and 2021 through 2023 fiscal year periods. |
| (3) | Calculated using the closing market price of the Common Stock on July 31, 2021 of $3.26 per share after applying the maximum relative total shareholder return (TSR) modifier. |
| (4) | Represents PSUs granted on January 3, 2019 that will vest, subject to the achievement of threshold performance goals for the fiscal years 2020-2022 performance period, on October 15, 2022, the third anniversary of the grant measurement date. |
| (5) | Represents PSUs granted on February 24, 2020 that will vest, subject to the achievement of threshold performance goals for the fiscal years 2020-2023 performance period, on October 19, 2023, the third anniversary of the grant measurement date. |
ADVISORY VOTE ON THE COMPANY’S NAMED EXECUTIVE
OFFICER COMPENSATION
The Exchange Act, and more specifically, Section 14A of the Exchange Act, which was added under the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted in July 2010, requires that we provide shareholders with the opportunity to vote to approve, on a nonbinding advisory basis, the compensation of our Named Executive Officers as disclosed in thethis Proxy Statement in accordance with the SEC’s rules (commonly referred to as “Say-on-Pay”).
At our 2011 and 2017 annual meeting of shareholders, a majority of our shareholders who voted supported an annual vote on our executive compensation and, in response, our Compensation Committee determined to hold an annual vote on the matter. As such, the next shareholder advisory vote on executive compensation will occuris occurring at the Company’s 2020 Annual Meeting. We are pleased that two leading proxy advisory firms at the last meeting supported the company’s executive compensation approach. As such, the approach has remained unchanged.
Our compensation program for Named Executive Officers is intended to link compensation to performance; to provide competitive compensation levels to attract, retain and reward executives; and to align management’s interests with those of our clients and shareholders. The compensation provided to the Named Executive Officers is dependent on the Company’s financial, operational and strategic performance and the Named Executive Officer’s individual performance. It is intended to drive creation of long-term shareholder value.
We encourage shareholders to read the “Compensation Discussion and Analysis” section of the Proxy Statement, the2021 Summary Compensation Table and the other related tables and disclosure for a detailed description of the fiscal year 20192021 compensation of our Named Executive Officers. The Compensation Committee and the Board believe that the policies and procedures articulated in the “Compensation Discussion and Analysis” are effective in achieving our goals and that the compensation of our Named Executive Officers reported in thethis Proxy Statement appropriately reflects our results during the fiscal year.
The vote on this resolution is not intended to address any specific element of compensation; rather, the advisory vote relates to the overall compensation of our Named Executive Officers. This vote is advisory, which means that it is not binding on the Company, the Board or the Compensation Committee. However, we value the opinion of our shareholders and the Board and the Compensation Committee will review the voting results and will take into account the outcome of the vote when considering future compensation decisions for the Named Executive Officers.
Accordingly, we ask our shareholders to vote on the following resolution:
“RESOLVED, that the Company’s shareholders approve, on a nonbinding advisory basis, the compensation paid to the Company’s Named Executive Officers, as disclosed in the Company’s Proxy Statement for the Annual Meeting of Shareholders pursuant to the compensation disclosure rules of the SEC, including the Compensation Discussion and Analysis, the Summary Compensation Table and the other related compensation tables and narrative discussion.”
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOUA VOTE “FOR” APPROVINGSUPPORTING THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICER COMPENSATION AS DISCLOSED IN THE PROXY STATEMENT PURSUANT TO THE COMPENSATION DISCLOSURE RULES OF THE SEC.
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RATIFICATION OF APPOINTMENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee of the Board has selected and the Board has appointed EisnerAmper LLP, an independent registered public accounting firm (“EisnerAmper”), to audit the Company’s financial statements for the fiscal year ending July 31, 2020.2022. The Company is submitting its selection of EisnerAmper for ratification by the shareholders at the Annual Meeting. A representative of EisnerAmper is expected to be present at the reconvening of the Annual Meeting, on February 25, 2020, will have the opportunity to make a statement and is expected to be available to respond to appropriate questions. EisnerAmper has served as our independent registered public accounting firm since April 19, 2013.
Although the selection and appointment of an independent registered public accounting firm is not required to be submitted to a vote of shareholders, the Board deems it desirable to obtain the shareholders’ ratification and approval of this appointment. If the appointment is not ratified by shareholders, then the adverse vote will be considered as an indication to the Audit Committee that it should consider selecting another independent registered public accounting firm for the following fiscal year, but the Audit Committee is not required to do so. Even if the appointment is ratified, the Audit Committee, in its discretion, may select a new independent registered public accounting firm at any time during the year if it believes that such a change would be in the Company’s best interest.
In making its recommendation to ratify the appointment of EisnerAmper as the Company’s independent registered public accounting firm for the fiscal year ending July 31, 2020,2022, the Audit Committee has considered whether the services provided by EisnerAmper are compatible with maintaining the independence of EisnerAmper.
Principal Accountant Fees and Services
EisnerAmper billed the Company for services for fiscal years 20192021 and 2018,2020, as set forth in the table below. The fees listed are aggregate fees for services performed for the year—regardless of when the fee was actually billed.
|
|
|
| |||||||||||
| FY 2019 | FY 2018 | ||||||||||||
Audit Fees |
|
| $ |
| 548,318 |
|
| $ |
| 550,900 | ||||
Audit-related Fees |
|
| 38,681 |
|
| 38,752 | ||||||||
Tax Fees |
|
| — |
|
| — | ||||||||
All Other Fees |
|
| — |
|
| — | ||||||||
|
|
|
|
| ||||||||||
Total |
|
| $ |
| 586,999 |
|
| $ |
| 589,652 | ||||
| FY 2021 | FY 2020 | |||||||
| Audit Fees | $ | 465,000 | $ | 519,000 | ||||
| Audit-related Fees | 95,900 | 40,040 | ||||||
| Tax Fees | - | - | ||||||
| All Other Fees | - | - | ||||||
| Total | $ | 560,900 | $ | 559,040 | ||||
Audit Fees—Consists of fees for professional services necessary to perform an audit or review in accordance with the Public Company Accounting Oversight Board, including services rendered for the audit of our annual financial statements (including services incurred with rendering an opinion under Section 404 of the Sarbanes-Oxley Act of 2002) and quarterly reviews of the Company’s interim financial statements.
Audit-Related Fees—EisnerAmper performed certain Audit services for an employee benefit plan for the years ended December 31, 20192021 and 2018,2020, for which the Company is the plan sponsor; these fees were $38,681$41,600 and $38,752,$40,040, respectively. EisnerAmper performed other Audit-Related services during the fiscal year ended July 31, 2021; the fees for these services were $54,000.
Tax Fees—There were no tax fees for fiscal years 20192021 and 2018.2020.
All Other Fees—There were no other fees for fiscal years 20192021 and 2018.2020.
Pre-Approval Policies and Procedures—The Audit Committee has adopted a policy that requires advance approval of all audit, audit-related, tax services and other services performed by the independent registered public accounting firm. The policy provides for pre-approval by the Audit Committee of specifically defined audit and non-audit services.
Unless the specific service has been previously pre-approved with respect to that year, the Audit Committee must approve the permitted service before the independent auditor is engaged to perform it. The Audit Committee has delegated to the Chair of the Audit Committee authority to approve
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permitted services, provided that the Chair reports any decisions to the Audit Committee at its next scheduled meeting.
THE BOARD UNANIMOUSLY RECOMMENDS ATHAT YOU VOTE “FOR” PROPOSAL 6 RELATING TO THE RATIFICATION OF THE COMPANY’S APPOINTMENT OF EISNERAMPER TO SERVELLP AS THE COMPANY’S INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMAUDITORS FOR THE FISCAL YEAR ENDING JULY 31, 2020.
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The Board proposes and recommends that shareholders approve an amendment to the By-Laws for the election of directors by an affirmative vote of the majority of the votes cast in uncontested director elections. Our By-Laws currently defer to New York Corporate law, which provides that the Company’s directors are elected pursuant to a “plurality voting” standard, under which director nominees who receive the greatest number of votes cast in favor of their election at the annual meeting of shareholders are elected to the Board, up to the maximum number of directors to be filled at that meeting. This means that, currently, a nominee may be elected to the Board whether or not a majority of the votes cast are in favor of his or her election.
Under the proposed majority voting standard, for a nominee to be elected to the Board in an “uncontested election,” the number of votes cast “FOR” the nominee’s election must exceed the number of votes cast “AGAINST” their election. Abstentions would not be considered votes cast “FOR” or “AGAINST” a nominee. An “uncontested election” is generally any meeting of shareholders at which the number of nominees does not exceed the number of directors to be elected. In all director elections other than uncontested elections, which we refer to as “contested elections,” the plurality voting standard would still apply.
In recent years, many public companies have eliminated plurality voting in uncontested elections and adopted “majority voting” by-laws or standards that provide shareholders with more influence over the outcome of uncontested director elections. As part of the ongoing review of our corporate governance, our Board determined that it is in the best interest of the Company and our shareholders to implement a majority voting standard in uncontested director elections. The Board concluded that the adoption of a majority vote standard will reinforce the Board’s accountability to our shareholders, by requiring that a nominee must obtain more “FOR” votes than “AGAINST” votes in order to be elected.
The Board believes, however, that the plurality vote standard should continue to apply in contested director elections. If a majority vote standard is used in a contested election, fewer candidates could be elected to the Board than the number of authorized board seats. Accordingly, we will retain plurality voting in contested elections.
We will also implement conforming amendments to our By-Laws to address the treatment of “holdover” terms for any incumbent directors who fail to be re-elected under majority voting. Under New York law, even if an incumbent director does not receive the vote required for re-election, that director will continue to serve as a “holdover director” until a successor is elected and qualified. Our amendments to our By-Laws will require an incumbent director who does not receive more votes cast “FOR” than “AGAINST” his or her election in an uncontested election to tender his or her resignation to the Board and the Board will decide, through a process managed by the Nominating/Governance committee, whether to accept such resignation or to have such director serve on a holdover basis until a successor is appointed.
The implementation of a majority voting standard requires an amendment to the By-Laws. This amendment consists of amending Article 1, Section 9 of the By-Laws, which refers to voting standards. The text of the revised section marked with the proposed amendment is below:
Section 9. Voting. Except as otherwise provided by statute, the Certificate of Incorporation, or any certificate duly filed in the office of the Department of State of the State of incorporation, each holder of record of shares of stock of the Corporation having voting power shall be entitled at each meeting of the shareholders to one vote for every share of such stock standing in his name on the record of shareholders of the Corporation on the date fixed by the Board as the record date for the determination of the shareholders who shall be entitled to notice of and to vote at such meeting; or if such record date shall not have been so fixed, then at the close of business on the day next preceding the day on which notice thereof shall be given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; or each shareholder entitled to vote at any meeting of the shareholders may authorize another person or persons to act for him by a proxy signed by such shareholder or his attorney-in-fact. Any such proxy shall be delivered to the secretary of such meeting at or prior to the time designated in the order
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|
If approved by our shareholders, this amendment will become effective at close of the Annual Meeting. Assuming a quorum is present at the Annual Meeting, the amendment to the By-Laws will be approved if it receives the affirmative vote of a majority of the votes present in person or by proxy by the holders of shares entitled to vote therein. Abstentions will have the same effect as a vote against this proposal. Broker non-votes, if any, will not be counted as votes cast for such purposes.
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” PROPOSAL 7 TO AMEND THE BY-LAWS TO IMPLEMENT MAJORITY VOTING IN UNCONTESTED DIRECTOR ELECTIONS.
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Except as discussed in thethis Proxy Statement, First Supplement and this Second Supplement, the Board does not know of any matters that are to be properly presented at the Annual Meeting other than those stated in the Notice of Annual Meeting of Shareholders and referred to in thethis Proxy Statement, First Supplement and this Second Supplement.Statement.
If other matters properly come before the Annual Meeting, it is the intention of the persons named in the enclosed proxy card to vote thereon in accordance with their best judgment. Moreover, the Board reserves the right to adjourn or postpone the Annual Meeting for failure to obtain a quorum, for legitimate scheduling purposes or based on other circumstances that, in the Board’s belief, would cause such adjournments or postponements to be in the best interests of all Enzo shareholders.
Participants
ANNUAL REPORT
The Notice that you received in the Company’s Solicitation
Under applicable SEC regulations, each ofmail contains instructions on how to access both the Company’s directors and certain executive officers and other employees of the Company are deemedAnnual Report to be “participants” in this proxy solicitation. Please refer to the sections of the Proxy Statement, the First Supplement and this Second Supplement entitled “Security Ownership of Certain Beneficial Owners and Management” and the section of the Proxy Statement “Certain Information Regarding Participants in this Proxy Solicitation” for information about our directors and certain of our executive officers who may be deemed to be participants in the solicitation. Except as described in the Proxy Statement, First Supplement and this Second Supplement, there are no agreements or understandings between the Company and any such participants relating to employment with the Company or any future transactions.
Forward-Looking Statements
This Second Supplement contains “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act, and Section 21E of the Exchange Act. These forward-looking statements are predictions and generally can be identified by use of statements that include phrases such as “plan,” “expect,” “will,” “should,” “could,” “anticipate,” “intend,” “project,” “estimate,” “guidance,” “possible,” “continue” and other similar terms and phrases, including references to assumptions and forecasts of future results. Forward-looking statements are not guarantees of future performance and involve known and unknown risks, uncertainties and other factors that may cause the actual results to differ materially from those anticipated at the time the forward-looking statements are made. These risks include, but are not limited to, those described in “Risk Factors” and elsewhere inShareholders, which includes the Company’s Annual Report on Form 10-K for theits fiscal year ended July 31, 20192021 and subsequent filings with the SEC. These factors should be considered carefully and readers are cautioned notthis Proxy Statement.
The Company will provide, without charge to place undue reliance on such forward-looking statements. No assurance can be given that the future results coveredeach person being solicited by the forward-looking statements will be achieved. Except as required by applicable law, all information contained herein is as of the date of this Second Supplement, and the Company does not intend to update this information.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE SHAREHOLDER MEETING TO BE CONVENED ON JANUARY 31, 2020 AND ADJOURNED AND RECONVENED ON FEBRUARY 25, 2020
The Notice of Annual Meeting of Shareholders, the Proxy Statement, the First Supplement, this Second Supplement,upon request, a copy of its 2021 Annual Report to Shareholders, which includes the Company’s 2019 Annual Report on Form 10-K and Form 10-K/A for theits fiscal year ended July 31, 2019, and form ofGOLD proxy card, and any amendments thereto, are available free of charge at http://www.enzo.com/corporate/investor-information/enzo-sec-filings. Information on our website does not constitute part of the Company’s proxy solicitation materials.
Shareholders may also obtain a copy of these materials by writing to Enzo Biochem, Inc., 527 Madison Avenue, New York, NY 10022, Attention: Investor Relations.2021. Upon payment of a reasonable fee, shareholders may also obtain a copy of the exhibits to our Annual Report on Form 10-K and Form 10-K/A for our fiscal year ended July 31, 2019. Any request for2021. All such materialsrequests should be delivereddirected to the Company before February 7, 2020 to facilitate timely delivery.
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For information on how to obtain directions to be able to attend the Annual Meeting and vote in person, please write to the Company’s principal corporate office atBarry W. Weiner, President, Enzo Biochem, Inc., 527 Madison Avenue, New York, NY 10022, Attention: Investor Relations or call (212) 583-0100 requesting such information.New York 10022.
THE BOARD UNANIMOUSLY RECOMMENDS VOTING “FOR” PROPOSAL 1, “FOR” THE ELECTION OF THE NOMINEES UNDER PROPOSALS 3 AND 4 AND “FOR” PROPOSALS 5, 6 AND 7 USING THE ENCLOSED GOLD PROXY CARD. THE BOARD MAKES NO RECOMMENDATION ON PROPOSAL 2.Shareholders voting using the enclosedGOLD proxy card will be unable to cast a vote with respect to the Harbert Nominees and shareholders wishing to vote for the Harbert Nominees must vote on a blue proxy card provided by Harbert.
EVEN IF YOU PREVIOUSLY SUBMITTED A WHITE PROXY CARD, WE URGE YOU TO FILL OUT THE ENCLOSED GOLD PROXY CARD TODAY. ONLY YOUR LATEST DATED PROXY CARD WILL BE COUNTED.ENZO WEBSITE
If you previously submitted a white or blue card, votes cast for either Mr. Weiner and/or Dr. Hanna will not be counted with respect to the proposal to elect two Class II Directors as neither Mr. Weiner nor Dr. Hanna remain up for election as Class II Directors. Votes cast on the white card will no longer be counted for purposes of electing Mr. Weiner to the Board. Dr. Hanna no longer stands for election as a director of any class as Mr. Weiner is now up for election as a director of a different class for a different term. However, votes cast on any of the other remaining proposals using either of the two white proxy cards will be counted. Furthermore, even though the proposal to elect two Class II Directors has been redesignated as proposal 2, any votes cast in favor of the Harbert Nominees on the blue proxy card provided by Harbert will still be counted.
Kingsdale Advisors is assisting us with our effort to solicit proxies. Therefore, requests for the above materials can also be made to Kingsdale Advisors through the following channels: (1) by calling (888) 518-1554 (toll-free in North America); (2) by calling (416) 867-2272 (outside of North America); or (3) by emailing ENZ@kingsdaleadvisors.com. Additionally, if you have any questions or require assistance in authorizing a proxy or voting your shares of our Common Stock or in obtaining any of the above materials, please contact Kingsdale Advisors through one of the three channels listed above. We are not aware of any other business, or any other nominees for election as directors, that may properly be brought before the Annual Meeting.
IF YOU ARE A RECORD HOLDER OF SHARES, OR AN OWNER WHO OWNS SHARES IN “STREET NAME” AND OBTAINS A “LEGAL” PROXY FROM YOUR BROKER, BANK, TRUSTEE OR NOMINEE, YOU STILL MAY ATTEND THE ANNUAL MEETING AND VOTE YOUR SHARES OR REVOKE YOUR PRIOR VOTING INSTRUCTIONS.
Regardless of the number of shares of our Common Stock that you own, your vote will be very important. Thank you for your continued support, interest and investment in Enzo Biochem, Inc.
WHERE YOU CAN FIND MORE INFORMATION
In addition to the information about the Company and its subsidiaries contained in thethis Proxy Statement, the First Supplement and this Second Supplement, additional information about the Company can be found on our website located at www.enzo.com,, including information about our management team, products and services and our corporate governance practices.
The corporate governance information on our website includes the Company’s Corporate Governance Guidelines, the Code of Business Conduct and Ethics, and the charters of each of the committeesCommittees of the Board. These documents can be accessed at www.enzo.com.www.enzo.com. Printed versions of our Corporate Governance Guidelines, our Code of Conduct and the charters for our Board committeesCommittees can be obtained, free of charge, by writing to the Company at: 527 Madison Avenue, New York, NY 10022, Attention: Investor Relations.
We are also required to file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our SEC filings are also available to the public at the SEC’s website at www.sec.gov. You also may obtain free copies of the documents we file with the SEC by
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going to our website, the address of which is http://www.enzo.com/corporate/investor-information/enzo-sec-filings. The information provided on our website is not part of the Proxy Statement, the First Supplement and this Second Supplement, and therefore is not incorporated by reference.
Shareholders are entitled to express their views regarding the topics raised in the Proxy Statement, the First Supplement and this Second Supplement or other matters directly to the Company through written communications sent directly to the attention of the Board, any individual director or the “non-employee directors” as a group, by written communications addressed in care of Enzo Biochem, Inc., 527 Madison Avenue, New York NY 10022, Attention: Investor Relations.Attn: Barry W. Weiner, President.
This information about Enzo’sthe Company’s website and its content, together with other references to the website made in thethis Proxy Statement, the First Supplement and this Second Supplement, is for informationinformational purposes only and the content of the Company’s website is not deemed to be incorporated by reference in thethis Proxy Statement First Supplement and this Second Supplement or otherwise filed with the SEC.
SHAREHOLDER PROPOSALS
Shareholder Proposals for the 2022 Annual Meeting
Proposals of shareholders intended to be included in the Company’s Proxy Statement and form of proxy for use in connection with the Company’s 2022 Annual Meeting must be received by the Company’s Secretary at the Company’s principal executive offices at 527 Madison Avenue, New York, New York 10022, Attention: Elazar Rabbani, Secretary, no later than [ ], 2022 (120 calendar days preceding the one-year anniversary of the date this Proxy Statement was first mailed to our shareholders for the Annual Meeting), and must otherwise satisfy the procedures prescribed by Rule 14a-8 under the Exchange Act. It is suggested that any such proposals be submitted by certified mail with return receipt requested.
Pursuant to Rule 14a-4 under the Exchange Act, shareholder proxies obtained by our Board in connection with our Annual Meeting will confer on the proxies and attorneys-in-fact named therein discretionary authority to vote on any matters presented at such annual meeting which were not included in the Company’s Proxy Statement in connection with such annual meeting, unless notice of the matter to be presented at such annual meeting is provided to the Company’s Secretary before [ ], 2022 (the 45th day preceding the one-year anniversary of the date this Proxy Statement was first mailed to our shareholders for the Annual Meeting).
Director Nominations
Under the By-Laws, shareholders intending to nominate one or more candidates for election to our Board at our 2022 Annual Shareholder Meeting may do so only if written notice of the intent to make such nomination(s) has been given, either by personal delivery or by United States mail, postage prepaid, to the Secretary of the Company, at the Company’s principal executive offices at 527 Madison Avenue, New York, New York 10022, Attention: Elazar Rabbani, Secretary, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the earlier of the date of such annual meeting or the corresponding date on which the immediately preceding year’s annual meeting of shareholders was held. Such notice must contain all of the information required by the By-Laws, including, without limitation, all information that would be required in connection with such nomination(s) under the SEC’s proxy rules if such nomination were the subject of a proxy solicitation and the written consent of each nominee for election to our Board named therein to serve if elected. The chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the By-Laws.
The contents and sending of this Second SupplementProxy Statement have been approved by all of the directors of the Company.
Dated as of the [•] day of [•] 2020.2022.
ENZO BIOCHEM, INC. | ||
Barry W. Weiner | ||
| President |
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ANNEX A CERTAIN INFORMATION REGARDING PARTICIPANTS IN THIS PROXY SOLICITATION
Other Contracts, Arrangements and Understandings with Participants
Except as otherwise set forth in the Proxy Statement, the First Supplement and this Second Supplement, to the best of the Company’s knowledge: (i) none of the participants in the Company’s solicitation of proxies is, or was within the past year, a party to any contract, arrangement or understanding with any person with respect to any securities of the Company, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits or the giving or withholding of proxies; (ii) neither any of the participants nor any of their respective associates has any arrangement or understanding with any person with respect to any future employment by the Company or its affiliates, or with respect to any future transactions to which the Company or any of its affiliates will or may be a party; and (iii) no participant knows of any arrangements, including any pledge by any person of securities of the Company or any of the Company’s parents and the operation of which may at a subsequent date result in a change in control of the Company.
Beneficial Ownership of the Common Stock by Associates of Participants
To the best of the Company’s knowledge, other than as set forth in the Proxy Statement, the First Supplement and this Second Supplement, none of the participants in the Company’s solicitation of proxies has any “associates” (as defined in Rule 14a-1 under the Exchange Act) who beneficially own any shares of the Company’s Common Stock.
Beneficial Ownership of Securities of the Company’s Subsidiaries
To the best of the Company’s knowledge, other than as set forth in the Proxy Statement, the First Supplement and this Second Supplement, none of the participants in the Company’s solicitation of proxies beneficially owns, directly or indirectly, any securities of any parent or subsidiary of the Company.
Other Proceedings
There are no material proceedings to which the participants or any of his or her associates is a party adverse to the Company or has a material interest adverse to the Company.
Miscellaneous Information Concerning Participants
Except as described in the Proxy Statement, the First Supplement and this Second Supplement, none of the participants (i) beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, any shares or other securities of the Company or any of the Company’s subsidiaries; (ii) owns any securities of the Company of record but not beneficially; (iii) has purchased or sold any of such securities within the past two years; or (iv) is, or within the past year was, a party to any contract, arrangement or understanding with any person with respect to any such securities. No part of the purchase price or market value of any of the Company’s securities owned by any participant is represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding such securities. Except as disclosed in the Proxy Statement, the First Supplement and this Second Supplement, none of the participants’ associates beneficially owns, directly or indirectly, any of the Company’s securities. Other than as disclosed in the Proxy Statement, the First Supplement and this Second Supplement, neither the Company nor any of the participants has any substantial interests, direct or indirect, by security holding or otherwise, in any matter to be acted upon pursuant to the Proxy Statement, the First Supplement and this Second Supplement or is or has been within the past year a party to any contract, arrangement or understanding with any person with respect to any of the Company’s securities, including, but not limited to, joint ventures, loan or option agreements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits or the giving or withholding of proxies. Other than as set forth in the Proxy Statement, the First Supplement and this
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Second Supplement, none of the Company, the participants or any of their affiliates has had or will have a direct or indirect material interest in any transaction or series of similar transactions since the beginning of the Company’s last fiscal year or any currently proposed transactions, or series of similar transactions, to which the Company or any of the Company’s subsidiaries was or is to be a party in which the amount involved exceeds $120,000.
Other than as set forth in the Proxy Statement, the First Supplement and this Second Supplement, none of the Company, any of the participants or any of their affiliates has any arrangements or understandings with any person with respect to any future employment by the Company or the Company’s affiliates or with respect to any future transactions to which the Company or any of its affiliates will or may be a party.
Other than as set forth in the Proxy Statement, the First Supplement and this Second Supplement, there are no material legal proceedings in which any of the directors or executive officers of the Company is a party adverse to the Company or any of its subsidiaries, or proceedings in which such directors or executive officers have a material interest adverse to the Company or any of its subsidiaries. Other than as set forth in the Proxy Statement, the First Supplement and this Second Supplement, none of the Company or any of the other participants has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the past ten years.
Our Certificate of Incorporation and the By-Laws also provide that we shall indemnify and hold harmless each person who serves at any time as a director, officer, employee or agent of the Company from and against any and all claims, judgments and liabilities to which such person shall become subject by reason of the fact that he is or was a director, officer, employee or agent of the Company and shall reimburse such person for all legal and other expenses reasonably incurred by him or her in connection with any such claim or liability. We also have the power to defend such person from all suits or claims in accord with New York law. The rights accruing to any person under our Certificate of Incorporation and the By-Laws do not exclude any other right to which any such person may lawfully be entitled, and we may indemnify or reimburse such person in any proper case, even though not specifically provided for by our Certificate of Incorporation and the By-Laws.
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Questions? Need Help Voting?
Please contact our Strategic Shareholder Advisor and Proxy Solicitation Agent, Kingsdale Advisors
CONTACT US:
Kingsdale Advisors
1-888-518-1554 (toll-free in North America)
(416) 867-2272 (outside of North America)
email: ENZ@kingsdaleadvisors.com
REVISED PRELIMINARY COPY DATED FEBRUARY 11, 2020 — SUBJECT TO COMPLETIONe-mail: contactus@kingsdaleadvisors.com
Form of Gold Proxy
ENZO BIOCHEM, INC.
YOUR VOTE IS IMPORTANT
Please take a moment now to vote your shares of Enzo Biochem,Inc. common stock for the upcoming Annual Meeting ofShareholders.
YOU CAN VOTE TODAY IN ONE OF THREE WAYS:
OR
OR
▼ TO VOTE BY MAIL, PLEASE DETACH PROXY CARD HERE AND RETURN IN THE POSTAGE-PAID ENVELOPE PROVIDED ▼
x Please mark your vote as indicated in this example
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
The Board of Directors recommends you vote “FOR” Proposal 1, “FOR” all of the nominees under Proposals 3 and 4 and “FOR”Proposals 5, 6 and 7.30
NOTE: Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, trustee, guardian, custodian or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer.
GOLD
PROXY
REVISED PRELIMINARY COPY DATED FEBRUARY 11, 2020 — SUBJECT TO COMPLETION
PLEASE VOTE TODAY!SEE REVERSE SIDEFOR THREE EASY WAYS TO VOTE.
▼ TO VOTE BY MAIL, PLEASE DETACH PROXY CARD HERE, SIGN, DATE AND RETURN IN THE POSTAGE-PAID ENVELOPE PROVIDED ▼
THIS PROXY IS SOLICITED ON BEHALF OFTHE BOARD OF DIRECTORS OF ENZO BIOCHEM, INC.
2019 ANNUAL MEETING OF SHAREHOLDERS
The undersigned hereby appoints Dov Perlysky and Barry W. Weiner or any of the foregoing, as proxies, each with full power of substitution, revoking all proxies previously given, and hereby authorizes them to represent and to vote, as designated on the reverse side of this form, all shares of common stock of Enzo Biochem, Inc. that the undersigned would be entitled to vote if personally present at the 2019 Annual Meeting of Shareholders to be convened at 9:00 a.m. on January 31, 2020 and immediately adjourned and reconvened on February 25, 2020 at 9:00 a.m. at The Yale Club of New York City, 50 Vanderbilt Avenue, New York, NY 10017 including any adjournments, postponements or continuations thereof, (the “Annual Meeting”).
This proxy, when properly executed, will be voted in the manner specified on the reverse side.IF THIS PROXY IS EXECUTED, BUT NO INSTRUCTION IS GIVEN, THIS PROXY WILL BE VOTED “FOR” PROPOSAL 1, “FOR” ALL OF THE NOMINEES UNDER PROPOSALS 3 and 4 AND “FOR” PROPOSALS 5, 6 and 7. Since the Harbert Nominees have not consented to be named in the Company’s proxy statement and proxy card, this proxy will not be voted on Proposal 2. However, since the Board is not nominating any director candidates to oppose the Harbert Nominees, assuming Harbert or any other shareholder votes for them, both Harbert Nominees will be elected to the Board.Shareholders who nonetheless wish to cast votes in favor of the Harbert Nominees must do so by voting on a blue proxy card provided by Harbert. The proposals are more fully described in the Proxy Statement, First Supplement and Second Supplement. If a matter is not timely submitted pursuant to Rule 14a-4(c)(1), the proxies appointed in this proxy card will have discretionary authority to vote with respect to any such matter subsequently and properly raised at the Annual Meeting. Only shareholders of record as of the close of business on December 3, 2019, may vote at the Annual Meeting.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD, USING THE ENCLOSED ENVELOPE.
YOUR VOTE IS IMPORTANT - PLEASE VOTE TODAY
Continued and to be signed and dated on reverse side