SIDLEY AUSTIN LLP
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February 14, 2020
Via EDGAR, Email and Courier
Perry J. Hindin
Special Counsel
Office of Mergers and Acquisitions
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549-3561
Re: Enzo Biochem, Inc.
Preliminary Proxy Statement filed on February 11, 2020
File No. 001-09974
Dear Mr. Hindin:
On behalf of our client, Enzo Biochem, Inc., a New York corporation (the
"Company" or
"we"), set forth below are our responses to comments received from the staff of
the Division of
Corporation Finance (the "Staff") of the Securities and Exchange Commission
(the
"Commission") by letter dated February 13, 2020, with respect to the
preliminary proxy statement
on Schedule 14A filed with the Commission on February11, 2020, File No.
001-09974.
For your convenience, each response is prefaced by the exact text of the
Staff's
corresponding comment in bold, italicized text. All references to page numbers
and captions in our
responses correspond to the Revised Preliminary Proxy Supplement unless
otherwise specified.
Capitalized terms used in this response letter, but not defined herein, have
the meanings given to
them in the Revised Preliminary Proxy Supplement.
1. We note your response to prior comment 1. We reissue the portion of the
comment
requesting a description of the procedural requirements to postpone an
annual meeting.
Response: The Company respectfully acknowledges the Staff's comment and
advises the
Staff that the procedural requirements for the Company to postpone an
annual meeting are
as follows:
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First, it requires board action.1 Second, it requires a notice to
shareholders.2 Third, it
requires a new record date if the previous record date is more than
sixty days before the
date of the rescheduled annual meeting.3 Lastly, it requires the filing
and mailing of a proxy
supplement.
1
NY BCL 602 and Article I, Section 1 of the By-Laws.
2
NY BCL 605 and Article I, Section 3 of the By-Laws.
3
NY BCL 604(a) and Article VII, Section 6 of the By-Laws.
United States Securities and Exchange Commission
Division of Corporation Finance
February 14, 2020
Page 2
2. In addition, please confirm in your response letter that if quorum had
been established
at the January 31 meeting, the Board could still have adjourned the
meeting over the
objection of holders of the majority of shares present in person or by
proxy or a majority
of shares of the voting stock outstanding. In responding to this
portion of the comment,
please address NY BCL section 608(d), In re Dollinger Corp., 274
N.Y.S.2d 285, 287
(N.Y. Sup Ct. 1966)("It is the shareholders' meeting, the owners of the
company, who
have the right to make a decision on a question of adjournment, and not
of the president
who has only the duty of presiding.") and Article 1, Section 6 of the
By-Laws, including
the penultimate sentence thereto ("[i]n the absence of a quorum, the
holders of a
majority of the votes of the shares of stock present in person or by
proxy and entitled to
vote, or if no shareholder entitled to vote is present, then any
officer of the Corporation
may adjourn the meeting from time to time"). We note that the authority
cited in the
response to prior comment 1 to support the directors' ability to
adjourn a meeting is that
of the Delaware Court of Chancery as opposed to that of a New York
court.
Response: The Company respectfully acknowledges the Staff's comment and
informs the
Staff that although the chairman of the meeting did not hold a
shareholder vote on
adjournment, the members of Enzo's board of directors (the "Board") and
management
team held the majority of shares present in person or by proxy at the
January 31 meeting
and would have voted in favor of adjourning the meeting. Still, if
quorum had been
established at the January 31 meeting, the Board could still have
adjourned the meeting
over the objection of holders of the majority of shares present in
person or by proxy or a
majority of shares of the voting stock outstanding.
The cited Dollinger case from 1966 is not only over 50 years old but it
can also be
distinguished from Enzo's case in several ways. Moreover, there is a
more recent case from
1990, enclosed hereto as Exhibit A, where the actions of the chairman
in unilaterally
adjourning an annual meeting without shareholder vote was deemed proper
under the
circumstances by the New York Supreme Court.4 Both cases require that
an "adjournment
was called for the purpose of thwarting the wishes of the
shareholders," which was not the
case in Enzo's situation Enzo is merely affording shareholders an
additional choice of
expanding the Board and is not opposing the election of the two
Harbert nominees. Article
I, Section 6 of the By-Laws merely speaks to adjournment in the
absence of a quorum.
Moreover, it does not grant an exclusive right to shareholders to
adjourn because it does
not use the words "only" or "exclusively". Finally, this section
does not speak to the power
of the chairman of the meeting to adjourn a meeting, to whom Article
I, Section 8 of the
By-Laws gives the express right to determine the order of business:
"The order of business
at all meetings of the shareholders shall be as determined by the
chairman of the meeting."
4
See Jordan v. Allegany Co-op Ins. Co., 147 Misc.2d 768 (1990).
United States Securities and Exchange Commission
Division of Corporation Finance
February 14, 2020
Page 3
3. Please advise us as to what communication, if any, the Company
provided to
shareholders to clarify that notwithstanding that the meeting was
"delayed" until
February 25, as disclosed in the January 28 press release filed as
additional definitive
material on January 29, 2020, that the meeting would still be held
on January 31 in
order for it to be adjourned.
Response: The Company respectfully acknowledges the Staff's comment
and informs the
Staff that the Company clarified this in its filing of the
preliminary supplement to the proxy
statement on the morning of January 31, 2020. We note that, in our
opinion, the Board did
not require a shareholder vote for the delay, regardless of whether
it was implemented as
adjournment or postponement, as more fully explained in this letter
above and in our
previous letter dated February 11, 2020. We also note that it is not
at all uncommon for
companies to announce the adjournment of a shareholder meeting on
the morning of a
shareholder meeting.
* * * * *
Please direct any questions that you may have with respect to the
foregoing or any requests
for supplemental information by the Staff to Kai Haakon E. Liekefett at (212)
839-8744.
Very truly
yours,
SIDLEY
AUSTIN LLP
By: /s/
Kai Haakon E. Liekefett
Name:Kai
Haakon E. Liekefett
cc: Dr. Elazar Rabbani, Ph.D.
Chairman of the Board, Chief Executive Officer, and Secretary
Enzo Biochem, Inc.
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