February 7, 2020
Kai Haakon E. Liekefett, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Re: Enzo Biochem, Inc.
Preliminary Proxy Statement filed on January 31, 2020
Definitive Additional Materials filed on February 7, 2020
Definitive Additional Materials filed on January 29, 2020
Definitive Additional Materials filed on January 8, 2020
File No. 001-09974
Dear Mr. Liekefett:
We have reviewed the filings above and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand the
disclosure.
Please respond to this letter by amending the proxy statement or by
providing the
requested information. If you do not believe our comments apply to the
Company's facts and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to the proxy statement and the
information you provide
in response to this comment, we may have additional comments. All defined terms
used in this
letter have the same meaning as in the preliminary proxy statement unless
otherwise indicated.
Preliminary Proxy Statement Supplement filed January 31, 2020
General
1. We note disclosure on page 50 of the Company's definitive proxy
statement filed on
December 5, 2019 that "...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"
(emphasis added).
With a view towards disclosure, please explain the difference between
adjourning an
annual meeting and postponing an annual meeting, describe what
procedural
requirements, if any, apply in order to (1) adjourn an annual meeting or
(2) postpone an
annual meeting and which term adjourn or postpone applies to the
Company's
reference in its January 28, 2020 press release (filed on January 29,
2020 as Definitive
Kai Haakon E. Liekefett, Esq.
Sidley Austin LLP
February 7, 2020
Page 2
Additional Materials under the cover of Schedule 14A) to "delay[ing]"
the meeting until
February 25. Please also advise whether the board can unilaterally
postpone, adjourn or
delay an annual meeting. Also disclose the consequences of adjourning a
meeting as
opposed to postponing or delaying a meeting under New York law and the
Company's
governing documents. For example, please advise whether postponing or
delaying the
meeting would have required the Company to (1) reopen the advance notice
window and
allow parties to submit new proposals and (2) provide new notice to
shareholders.
Finally, please advise whether, under New York law and the Company's
governing
documents, and assuming sufficient shares were represented at the
meeting such that
quorum could have been established, the Board could have unilaterally
adjourned the
meeting (1) without a shareholder vote or (2) if holders of the majority
of shares present
in person or by proxy at the annual meeting objected to such
adjournment.
2. Please advise us what date the Company had notified Broadridge that the
annual meeting
date was moved to February 25, 2020.
3. With a view towards disclosure, please advise why, given the disclosure
in the January
28, 2020 press release (filed on January 29, 2020 as Definitive
Additional Materials
under the cover of Schedule 14A) that the Company was delaying the
annual meeting
until February 25, 2020, the Company determined it necessary to hold the
January 31
meeting in order to immediately adjourn to February 25, as opposed to
simply postponing
the meeting until February 25 without holding a meeting on January 31.
Include in such
response a discussion of any applicable requirements under New York law
or the
Company's governing documents that obligated the Company to hold the
January 31
meeting followed by an immediate adjournment as opposed to simply
postponing the
meeting without any further action of the Company. Please also indicate
if (1) any
shareholders other than the Company's directors, executive officers,
employees, their
affiliates or any of their family members were in attendance at the
January 31 meeting,
and (2) quorum was established.
4. Please provide us on a supplemental basis a copy of the Company's
Certificate of
Incorporation, including all amendments thereto, including:
the Certificate of Incorporation
Certificate of Incorporation, as amended on March 17, 1980
Certificate of Amendment of the Certificate of Incorporation as
amended on June
16, 1981; and
Certificate of Amendment to the Certificate of Incorporation as
of July 22, 1988.
Letter to Shareholders
5. Disclosure here and in the Notice to Shareholders indicates that "[i]f
you have already
voted on the previously distributed white proxy card and you do not
submit a GOLD
proxy card or voting instruction form, your previously submitted proxy
or voting
Kai Haakon E. Liekefett, Esq.
Sidley Austin LLP
February 7, 2020
Page 3
instruction form will still be voted at the Annual Meeting." Please
supplement the
disclosure in these locations to indicate the same applies with respect
to a previously
submitted blue proxy card provided by Harbert.
6. Disclosure in the letter to shareholders (page 3) indicates that
"[w]hile 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..." Similar disclosure appears in the Notice of Annual
Meeting (page
6) and on pages 7, 10, 17 and 22. Please revise the disclosure in each
of these locations
to indicate that (1) shareholders voting the GOLD proxy card will be
unable to cast a vote
with respect to the election of the Harbert Nominees and (2) if
shareholders wish to vote
for the Harbert Nominees, they must use a blue proxy card sent to them
by Harbert.
Supplement to the Proxy Statement, page 10
7. Disclosure on page 10 indicates that "[t]he GOLD proxy 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 enclosed GOLD proxy card
reflects the new
proposals, the updated order for all of the proposals and the Company's
revised slate of
director nominees." Please supplement the disclosure both here and in
the locations
referenced in the preceding comment to clarify how proposals from
earlier white or blue
cards will be counted to the extent they either were numbered
differently or pertained to a
proposal that is no longer on the gold card. For example, but without
limitation, disclose:
whether a white proxy card that specified a voting choice for
Messrs. Weiner
and/or Hanna will be counted with respect to that particular
proposal and any of
the remaining proposals;
whether a white proxy card that cast a vote for Weiner as a Class
I director will be
counted as a vote cast for Weiner as a Class III director, in the
event that proposal
1 on the Gold card receives the necessary shareholder approval;
and
whether the blue proxy cards provided by Harbert and voted by
shareholders in
favor of the Harbert Nominees will still be counted
notwithstanding that (1) the
proposal has been redesignated as proposal 2 on the Gold card or
(2) Harbert may
circulate revised proxy cards to reflect the changes made to the
Company's proxy
card.
8. Disclose who will officially count the votes cast at the meeting, what
instructions, if any,
they have received or will receive from the Company with respect to how
prior white and
blue proxy cards will be counted and whether proxies will be available
for inspection by
Harbert following the Company's initial determination of the outcome of
the election.
Kai Haakon E. Liekefett, Esq.
Sidley Austin LLP
February 7, 2020
Page 4
Supplemental Disclosure Background of the Solicitation, page 11
9. Please update this section to reflect that on January 28, 2020, the
Company issued a press
release announcing that it had delayed the annual meeting until February
25, 2020.
What vote is required for the By-Law Amendment to pass? Page 12
10. We note the disclosure that "[t]he amendment to fix the size of the
Board was
inadvertently added to Article II, Section 2 of the By-Laws, which is a
section whose
amendment requires a supermajority vote of shareholders per the
Company's certificate
of incorporation (as amended, the "Charter"), rather than in Article II,
Section 9 of the
By-Laws" (emphasis added). Please disclose the basis on which the
conclusion was
made that the amendment was inadvertently added to the wrong section and
when this
determination was made.
11. Refer to the preceding comment. Separately provide us with an opinion of
New York
counsel that addresses under applicable New York state law the legal
basis for the
conclusion that the supermajority standard does not apply,
notwithstanding clear
language in Article 10 of the Certificate of Amendment to the
Certificate of Incorporation
of the Company, filed with the New York Department of State on July 22,
1988, which
appears to provide that:
"Article II, Section...2...of the By-Laws shall not be altered,
amended, or
repealed and no provision inconsistent therewith shall be adopted
without the
affirmative vote of (i) the holders of at least 80% of the voting
power of the then
outstanding shares or 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..."
12. Refer to the preceding comment. Please supplement the disclosure in this
Q & A as well
as the disclosure on page 13 ("Proposal 1") to indicate how proposal 2,
providing for the
addition of a provision to Article II, Section 9 of the By-laws to fix
the size of the Board
at six directors with discretion to decrease it to five or increase it
to seven directors, if
adopted, would be compatible with Article II, Section 2 of the By-laws,
which fixes the
size of the board at five directors. Disclose the consequences of these
two conflicting
By-laws and the legal basis for concluding that Article II, Section 9 of
the By-Laws will
be the controlling provision.
Proposal 1 Approval of the Amendment to the By-Laws..., page 13
13. Disclosure in this section indicates that "...the Board intends to
appoint a new, highly
qualified independent director to join the Board in the near future."
Please expand this
statement to (1) clarify with greater specificity when the Board intends
to make such
appointment and (2) indicate who has the power to make such appointment
and the
Kai Haakon E. Liekefett, Esq.
Sidley Austin LLP
February 7, 2020
Page 5
director voting standard, if any, to the extent a vote of the directors
is required to make
such appointment.
14. Disclosure in this section also indicates that "[t]he Board proposes and
recommends that
shareholders approve an amendment to the By-Laws to increase the maximum
number 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." Please
expand this disclosure to indicate, if this proposal is approved, who
will have the power
to reduce the size of the board to five directors. Also disclose the
director votes needed
to reduce the size to five directors if (1) the board has six directors
or (2) the board has
seven directors.
15. Refer to the preceding comment. If the board size was set at six, please
disclose the vote
needed to reduce the board size to five directors. Also disclose the
consequences of such
a vote if it were evenly split for and against such reduction.
16. Please supplement the disclosure to advise shareholders that a potential
consequence of
their approval of proposal 1 includes that the board size could be
increased to seven,
enabling a majority of the board to remove the Harbert Nominees from the
board by
reducing the board size to five.
Proposal 2 Election of Class II Directors, page 14
17. Disclosure in the last paragraph on page 14 indicates that "...since the
Harbert Nominees
have not consented to be named in the Company's proxy statement,
shareholders voting
the GOLD proxy card may not vote on the election of the Harbert
Nominees." Please
supplement this disclosure to indicate that if a shareholder wishes to
vote for the Harbert
Nominees, they must use a blue proxy card sent to the shareholder by
Harbert.
Proxy Card
18. The second paragraph of the proxy card contains the following
disclosure:
"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."
Please add a sentence that indicates that if a shareholder wishes to
vote for the Harbert
Nominees, they must use a proxy card sent to the shareholder by Harbert.
Kai Haakon E. Liekefett, Esq.
Sidley Austin LLP
February 7, 2020
Page 6
19. Please revise proposal 2 on the card ("Election of two Class II
Directors") to specifically
note that (1) the card will not be voted for proposal 2, and (2) if a
shareholder wishes to
vote for the Harbert Nominees, they must use a proxy card sent to the
shareholder by
Harbert.
Definitive Additional Materials filed on February 7, 2020
20. This press release states that "[t]his reveals what we have previously
stated is Harbert's
true aim: to take effective control of the Company regardless of the
desires of Enzo's
other shareholders." Given that Harbert is seeking only two of five
board seats, there
appears to be no basis for this statement. Please refrain from making
this statement in the
future and avoid making any statements for which no reasonable basis
exists.
Definitive Additional Materials filed January 8, 2020
21. On slides 8 and 58 of the Company's shareholder presentation filed under
the cover of
Schedule 14A on January 8, 2020, the Company states that "Harbert has an
alleged
criminal history in New York, whereas Enzo has close relationships with
regulators in
New York..." (emphasis added). Such statement directly impugns the
character,
integrity and reputation of Harbert without any factual foundation. It
is our
understanding that there has been no such allegation made against
Harbert. Please do not
use these or similar statements in any soliciting materials without
providing a proper
factual foundation for the statements. In addition, as to matters for
which the filing
persons do have a proper factual foundation, please avoid making
statements about those
matters that go beyond the scope of what is reasonably supported by the
factual
foundation. Please refer to Note (b) to Rule 14a-9.
* * *
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please contact me at (202) 551-3444 with any questions.
Sincerely,
/s/ Perry J. Hindin
Perry J. Hindin
Special Counsel
Office of Mergers
and Acquisitions