SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Mark one
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended October 31, 2003
or
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to ______________
Commission File Number 1-9974
ENZO BIOCHEM, INC.
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(Exact name of registrant as specified in its charter)
NEW YORK 13-2866202
- ----------------------------- ----------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
60 EXECUTIVE BLVD., FARMINGDALE, NEW YORK 11735
- ----------------------------------------- -----------
(Address of Principal Executive office) (Zip Code)
(631-755-5500)
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(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
COMMON STOCK, $0.01 PAR VALUE NEW YORK STOCK EXCHANGE
- ----------------------------- -----------------------
(Title of Class) (Name of Each Exchange on which Registered)
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant has
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
[X] Yes [ ] No
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 125-2).
[X] Yes [ ] No
As of November 25, 2003 the Registrant had 30,036,300 shares of Common Stock
Outstanding.
ENZO BIOCHEM, INC.
FORM 10-Q
October 31, 2003
INDEX
PAGE
NUMBER
PART I - FINANCIAL INFORMATION
- -------
Item 1. Financial Statements
Consolidated Balance Sheet - October 31, 2003 (unaudited)
and July 31, 2003 3
Consolidated Statement of Operations
For the three months ended October 31, 2003 and 2002 (unaudited) 4
Consolidated Statement of Cash Flows
For the three months ended October 31, 2003 and 2002 (unaudited) 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosures About Market Risk 13
Item 4. Controls and Procedures 13
Part II - Other Information
Item 1. Legal Proceedings 14
Item 6. Exhibits and Reports on Form 8-K 17
2
ENZO BIOCHEM, INC
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEET
October 31, July 31,
2003 2003
(unaudited) (audited)
--------- ---------
ASSETS
Current assets:
Cash and cash equivalents .......................... $ 63,446 $ 63,268
Marketable securities .............................. 15,179 15,154
Accounts receivable, less allowance for
doubtful accounts ................................ 16,643 17,266
Inventories ........................................ 3,322 3,422
Prepaid expenses ................................... 2,007 2,233
Deferred taxes ..................................... 1,284 1,014
Prepaid taxes ...................................... 810 542
--------- ---------
Total current assets ................................. 102,691 102,899
Property and equipment, at cost less accumulated
depreciation and amortization ...................... 2,242 2,200
Goodwill ............................................. 7,452 7,452
Deferred patent costs, less accumulated amortization . 2,995 3,166
Other ................................................ 165 161
--------- ---------
$ 115,545 $ 115,878
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Trade accounts payable ............................. $ 2,097 $ 1,321
Accrued legal fees ................................. 1,681 1,915
Other accrued expenses ............................. 435 551
Accrued research and development expenses .......... -- 453
Accrued payroll .................................... 621 703
Deferred rent ...................................... 261 232
--------- ---------
Total current liabilities ............................ 5,095 5,175
Deferred taxes ....................................... 1,156 1,235
Deferred rent ........................................ -- 87
Commitments and contingencies
Stockholders' equity:
Preferred Stock, $.01 par value; authorized
25,000,000 shares; no shares issued
or outstanding
Common Stock, $.01 par value; authorized
75,000,000 shares; shares issued and
outstanding: 30,007,300 at October 31, 2003
and 29,975,100 at July 31, 2003 .................. 300 300
Additional paid-in capital ......................... 199,361 199,082
Accumulated deficit ................................ (90,239) (89,916)
Accumulated other comprehensive loss ............... (128) (85)
--------- ---------
Total stockholders' equity ........................... 109,294 109,381
--------- ---------
$ 115,545 $ 115,878
========= =========
3
ENZO BIOCHEM, INC.
CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED)
Three Months Ended
October 31,
2003 2002
------- -------
(In thousands, expect
per share data)
Revenues:
Research product revenues ........................... $2,760 $10,411
Clinical laboratory services ........................ 7,513 6,945
------- -------
10,273 17,356
Costs and expenses:
Cost of research product revenues ................... 384 1,291
Cost of clinical laboratory services ................ 2,322 2,099
Research and development expense .................... 1,932 1,827
Selling expense ..................................... 1,019 1,460
General and administrative expense .................. 2,390 2,006
Provision for uncollectible accounts receivable ..... 2,372 2,168
Legal expense ....................................... 956 742
------- -------
11,375 11,593
------- -------
Income (loss) before interest income and provision
for taxes on income ................................. (1,102) 5,763
Interest income ....................................... 286 284
------- -------
Income (loss) before provision for taxes on income .... (816) 6,047
Benefit (provision) for taxes on income ............... 493 (2,359)
------- -------
Net (loss) income ..................................... (323) $3,688
======= =======
Net income (loss) per common share:
Basic ............................................... ($.01) $0.12
======= =======
Diluted ............................................. ($.01) $0.12
======= =======
Denominator for per share calculation:
Basic ............................................... 30,006 29,885
======= =======
Diluted ............................................. 30,006 30,492
======= =======
4
ENZO BIOCHEM, INC
CONSOLIDATED STATEMENT OF CASH FLOWS
Three Months Ended
October 31,
2003 2002
------- -------
(In Thousands)
Cash flows from operating activities:
Net income (loss) ...................................... $ (323) $ 3,688
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation and amortization of property and
equipment ......................................... 253 237
Amortization of deferred patent costs ................ 214 225
Provision for uncollectible accounts receivable ...... 2,372 2,168
Deferred rent ........................................ (58) (49)
Changes in operating assets and liabilities:
Accounts receivable before provision for
uncollectible amounts ........................... (1,749) (2,951)
Inventories ........................................ 100 800
Prepaid expenses ................................... 226 (123)
Deferred taxes ..................................... (321) --
Prepaid taxes ...................................... (268) 1,888
Trade accounts payable and other accrued expenses .. 660 2
Accrued research and development expenses .......... (453) --
Accrued legal fees ................................. (234) 370
Accrued payroll .................................... (82) 99
------- -------
Total adjustments .................................. 660 2,666
------- -------
Net cash provided by operating activities ... 337 6,354
------- -------
Cash flows from investing activities:
Capital expenditures ................................... (295) (186)
Patent costs deferred .................................. (43) (77)
Purchase of marketable securities ...................... (96) --
Security deposits ...................................... (4) (1)
------- -------
Net cash used in investing activities ................ (438) (264)
------- -------
Cash flows from financing activities:
Proceeds from the exercise of stock options ............ 279 23
------- -------
Net cash provided by financing activities ............ 279 23
------- -------
Net increase in cash and cash equivalents ................ 178 6,113
Cash and cash equivalents at the beginning
of the period .......................................... 63,268 67,135
------- -------
Cash and cash equivalents at the end of the period ....... $63,446 $73,248
======= =======
5
ENZO BIOCHEM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
October 31, 2003
(Unaudited)
NOTE 1. BASIS OF PRESENTATION
The consolidated financial statements are unaudited and reflect all adjustments
(consisting only of normal recurring adjustments) which are, in the opinion of
management, necessary for a fair presentation of the financial position and
operating results for the interim periods. The consolidated financial statements
should be read in conjunction with the consolidated financial statements for the
year ended July 31, 2003 and notes thereto contained in the Company's Annual
Report on Form 10-K filed with the Securities and Exchange Commission. The
results of operations for the three months ended October 31, 2003 are not
necessarily indicative of the results to be expected for the entire fiscal year
ending July 31, 2004.
STOCK BASED COMPENSATION PLANS
The Company accounts for stock option grants to employees under the recognition
and measurement principles of APB Opinion No. 25, "Accounting for Stock Issued
to Employees," and related Interpretations. Under APB No. 25, because the
exercise price of the Company's employee stock options equals the market price
of the underlying stock on the date of grant, no compensation expense is
recorded.
Pro forma information regarding net loss applicable to common stockholders is
required by FASB Statement No. 123 ("SFAS 123"), "Accounting for Stock-Based
Compensation," which also requires that the information be determined as if the
Company has accounted for its stock options under the fair value method of that
statement. For purposes of pro forma disclosures, the estimated fair value of
the options is amortized to expense over the options' vesting period.
In December 2002, the FASB issued Statement No. 148 ("SFAS 148"), "Accounting
for Stock-Based Compensation - Transition and Disclosure." SFAS No. 148 amends
SFAS No. 123, "Accounting for Stock-Based Compensation," to provide alternative
methods of transition to SFAS No. 123's fair value method of accounting for
stock-based employee compensation. SFAS No. 148 also amends the disclosure
provisions of SFAS No. 123 to require disclosure in the summary of significant
accounting policies of the effects of an entity's accounting policy with respect
to stock-based employee compensation on reported net income. While SFAS No. 148
does not amend SFAS No. 123 to require companies to account for employee stock
options using the fair value method, the disclosure provisions of SFAS No. 148
are applicable to all companies with stock-based employee compensation,
regardless of whether they account for that compensation using the fair value
method of SFAS No. 123 or the intrinsic value method of APB No. 25. The Company
adopted SFAS No. 148 effective January 31, 2003.
6
ENZO BIOCHEM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
October 31, 2003
(Unaudited)
The following table illustrates the effect on net income and earnings per share
if the Company had applied the fair value recognition provisions of SFAS No. 123
to stock-based compensation for the three months ended October 31, 2003 and 2002
(in thousands, except per share data):
Three Months Ended
October 31,
2003 2002
-------- --------
(In thousands,
except for share data)
Net income (loss), as reported $(323) $3,688
Deduct: Total stock-based employee compensation
expense determined under fair value based method
for all awards (814) (705)
-------- --------
Pro forma net income (loss) $(1,137) $2,983
======== ========
Earnings (loss) per share:
Basic - as reported $(.01) $.12
Basic - pro forma (.04) .10
Diluted - as reported $(.01) $.12
Diluted - pro forma (.04) .10
The Company follows the provisions of Statement of Financial Accounting
Standards ("SFAS") No. 128, "Earnings Per Share". The following table sets forth
the computation of basic and diluted earnings per share pursuant to SFAS 128.
Three Months Ended
October 31,
2003 2002
-------- --------
(In thousands,
except for share data)
Numerator:
Net income (loss) for numerator for basic and
diluted earnings per common share $(323) $3,688
Denominator:
Denominator for basic earnings per common
equivalent share during the period 30,006 29,885
Effect of dilutive securities
Employee and director stock options and warrants --(a) 607
-------- --------
Denominator for diluted earnings (loss) per common
equivalent share and assumed conversions 30,006 30,492
======== ========
Basic earnings (loss) per share $(.01) $.12
======== ========
Diluted earnings (loss) per share $(.01) $.12
======== ========
(a) The effect of 1,127,000 of dilutive securities have been excluded as they
are anti-dilutive.
The Company declared a 5% stock dividend on June 10, 2003 payable July 14, 2003
to shareholders of record as of June 30, 2003. The shares and per share data
have been adjusted to retroactively reflect this stock dividend for all periods
presented.
7
ENZO BIOCHEM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
OCTOBER 31, 2003
(UNAUDITED)
Note 2--Segment Reporting
The Company has two reportable segments: research and development and
clinical reference laboratories. The Company's research and development segment
conducts research and development activities as well as selling products derived
from these activities. The clinical reference laboratories provide diagnostic
services to the health care community. The Company evaluates performance based
on income before provision for taxes on income. The accounting policies of the
reportable segments are the same as those described in the summary of
significant accounting policies. Costs excluded from income before provision for
taxes on income and reported as other consist of corporate general and
administrative costs that are not allocable to the two reportable segments.
Management of the Company assesses assets on a consolidated basis only and
therefore, assets by reportable segment have not been included in the reportable
segments below.
The following financial information (in thousands) represents the
reportable segments of the Company:
RESEARCH AND CLINICAL REFERENCE
DEVELOPMENT LABORATORIES OTHER CONSOLIDATED
------------------- ---------------- ------------------- -------------------
THREE MONTHS ENDED THREE MONTHS ENDED THREE MONTHS ENDED THREE MONTHS ENDED
OCTOBER 31, OCTOBER 31, OCTOBER 31, OCTOBER 31,
------------------- ---------------- ------------------- -------------------
2003 2002 2003 2002 2003 2002 2003 2002
------- ------- ------ ------ ------- ------- ------- -------
Operating revenues:
Research product revenues ................. $2,760 $10,411 -- -- -- -- $2,760 $10,411
Clinical laboratory services .............. -- -- $7,513 $6,945 -- -- 7,513 6,945
Cost and expenses:
Cost of research product revenues ......... 384 1,291 -- -- -- -- 384 1,291
Cost of clinical laboratory services ...... -- -- 2,322 2,099 -- -- 2,322 2,099
Research and development expense .......... 1,932 1,827 -- -- -- -- 1,932 1,827
Provision for uncollectible ............... -- -- 2,372 2,168 -- -- 2,372 2,168
accounts
Other costs and expenses .................. 515 972 2,155 1,884 $1,695 $1,352 4,365 4,208
Interest income ........................... -- -- -- -- 286 284 286 284
------- ------- ------ ------ ------- ------- ------- -------
Income (loss) before (provision) benefit
for income taxes on income .............. $(71) $6,321 $664 $794 $(1,409) $(1,068) $(816) $6,047
======= ======= ====== ====== ======= ======= ======= =======
8
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following discussion of our financial condition and results of
operations should be read in conjunction with our financial statements and
related notes. This discussion contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements. See "Forward-Looking and
Cautionary Statements." Because of the foregoing factors, you should not rely on
past financial results as an indication of future performance. We believe that
period-to-period comparisons of our financial results to date are not
necessarily meaningful and expect that our results of operations might fluctuate
from period to period in the future.
Enzo Biochem, Inc. (the "Company" or "Enzo") is a leading life sciences
and biotechnology company focused on harnessing genetic processes to develop
research tools, diagnostics and therapeutics. Enzo also provides clinical
laboratory services to the medical community. In addition, our work in gene
analysis has led to our development of significant therapeutic product
candidates, several of which are currently in clinical trials, and several are
in preclinical studies.
The business activities of the Company are performed by the Company's
three wholly owned subsidiaries. These activities are: (1) research and
development, manufacturing and marketing of biomedical research products and
tools through Enzo Life Sciences and research and development of therapeutic
products through Enzo Therapeutics, and (2) the operation of a clinical
reference laboratory through Enzo Clinical Labs. For information relating to the
Company's business segments, see Note 2 of the Notes to Consolidated Financial
Statements.
The Company's source of revenue has been from the direct sales of
research products of labeling and detection reagents for the genomics and
sequencing markets, as well as through non-exclusive distribution agreements
with other companies. Another source of revenue has been from the clinical
laboratory service market. Clinical laboratory services are provided to patients
covered by various third party insurance programs, including Medicare and self
payors for the services provided. The clinical laboratory is subject to seasonal
fluctuations in operating results. Volume of testing generally declines during
the summer months, the year-end holiday periods and other major holidays. In
addition, volume declines due to inclement weather may reduce net revenues.
Therefore, comparison of the results of successive quarters may not accurately
reflect trends or results for the full year. For the three months ended October
31, 2003 and 2002, respectively, approximately 27% and 60% of the Company's
operating revenues were derived from research product sales and approximately
73% and 40% were derived from clinical laboratory services. Research product
revenue from one major distributor represented approximately 83% of the three
months ended in October 31, 2002, under a non-exclusive distribution and supply
agreement. See "Item 1. Legal Proceedings."
Liquidity and Capital Resources
At October 31, 2003, our cash and cash equivalents and marketable
securities totaled $78.6 million, an increase of $.2 million from July 31, 2003.
We had working capital of $97.6 million at October 31, 2003 compared to $97.7
million at July 31, 2003.
Net cash provided by operating activities for the period ended October
31, 2003 was approximately $.3 million as compared to net cash provided by
operating activities of $6.4 million for the period ended October 31, 2002. The
decrease in net cash provided by operating activities from the 2002 period to
the 2003 period was primarily due to the decreased net income in the 2003 period
based on the net loss in the 2003 period as compared to the net income in the
2002 period.
9
Net cash used in investing activities increased approximately $.2
million from the 2002 period, primarily as a result of an increase investment in
marketable securities and an increase in capital expenditures.
Net cash provided by financing activities increased by $.3 million from
the 2002 period primarily as a result of the increase in proceeds from the
exercise of stock options.
We believe that our current cash position is sufficient for our
foreseeable liquidity and capital resource needs, although there can be no
assurance that future events will not alter such view.
Management is not aware of any material claims, disputes or settled
matters concerning third-party reimbursements that would have a material effect
on our financial statements.
Critical Accounting Policies
General
The Company's discussion and analysis of its financial condition and
results of operations are based upon Enzo Biochem, Inc. consolidated financial
statements, which have been prepared in accordance with accounting principles
generally accepted in the United States. The preparation of these financial
statements requires the Company to make estimates and judgments that affect the
reported amounts of assets, liabilities, revenues and expenses; these estimates
and judgments also affect related disclosure of contingent assets and
liabilities. On an on-going basis, we evaluate our estimates, including those
related to contractual allowance, allowance for uncollectible accounts,
intangible assets and income taxes. The Company bases its estimates on
experience and on various other assumptions that are believed to be reasonable
under the circumstances, the results of which form the basis for making
judgments about the carrying values of assets and liabilities that are not
readily apparent from other sources. Actual results may differ from these
estimates under different assumptions or conditions.
REVENUE RECOGNITION
Revenues from the clinical laboratory are recognized as
services are rendered upon completion of the testing process for a specific
patient. The Company's revenue is based on amounts billed or billable for
services rendered, net of contractual adjustments and other arrangements made
with third-party payors to provide services at less than established billing
rates. Revenues from research product sales, exclusive of certain non-exclusive
distribution agreements, are recognized when the products are shipped.
The Company has certain non-exclusive distribution agreements, which
provide for consideration to be paid to the distributors for the manufacture of
certain products. The Company records such consideration provided to
distributors under these non-exclusive distribution agreements as a reduction to
research product revenues. The revenue from these non-exclusive distribution
agreements are recognized when shipments are made to their respective customers
and reported to the Company.
CONTRACTUAL ALLOWANCES
The percentage of the Company's revenues derived from Medicare, third
party payers, commercial insurers and managed care patients continue to
increase. The Medicare regulations and various managed care contracts are often
complex and may include multiple reimbursement mechanisms for different types of
services provided in our clinical laboratory.
10
We estimate the allowance for contractual allowances on a payer-specific basis
given our interpretation of the applicable regulations and historical
calculations. However, the services authorized and provided and related
reimbursement are often subject to interpretation that could result in payments
that differ from our estimates. Additionally, updated regulations occur
frequently necessitating continual review and assessment of the estimation
process by management.
ALLOWANCE FOR DOUBTFUL ACCOUNTS
The Company's ability to collect outstanding receivables from third
party payers is critical to its operating performance and cash flows. The
primary collection risk lies with uninsured patients or patients for whom
primary insurance has paid but a patient portion remains outstanding. The
Company estimates the allowance for doubtful accounts primarily based upon the
age of the accounts since invoice date. The Company continually monitors its
accounts receivable balances and utilizes cash collections data to support the
basis for its estimates of the provision for doubtful accounts. Significant
changes in payer mix or regulations could have a significant impact on the
Company's results of operations and cash flows. In addition, the Company has
implemented a process to estimate and review the collections of its receivables
based on the period they have been outstanding. Historical collection and payor
reimbursement experience is an integral part of the estimation process related
to reserves for doubtful accounts. The Company also assesses the current state
of its billing functions in order to identify any known collection or
reimbursement issues in order to assess the impact, if any, on the reserve
estimates, which involves judgment. The Company believes that the collectibility
of its receivables is directly linked to the quality of its billing processes,
most notably, those related to obtaining the correct information in order to
bill effectively for the services provided. Revisions in reserve for doubtful
accounts estimates are recorded as an adjustment to bad debt expense. The
Company believes that its collection and reserves processes, along with the
close monitoring of its billing processes, helps reduce the risk associated with
material revisions to reserve estimates resulting from adverse changes in
collection and reimbursement experience and billing operations.
INCOME TAXES
The Company accounts for income taxes under the liability method of
accounting for income taxes. Under the liability method, deferred tax assets and
liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases. The liability method requires
that any tax benefits recognized for net operating loss carry forwards and other
items be reduced by a valuation allowance where it is more likely than not the
benefits may not be realized. Deferred tax assets and liabilities are measured
using enacted tax rates expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. Under
the liability method, the effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
IMPAIRMENT OF LONG-LIVED ASSETS
The Company evaluates the requirement to recognize impairment losses on
long-lived assets used in operations when indicators of impairment are present
and the undiscounted cash flows estimated to be generated by those assets are
less than the assets' carrying amount. Company management believes that no
impairment to its long-lived assets has occurred.
11
Results of Operations
THREE MONTHS ENDED OCTOBER 31, 2003 COMPARED WITH THREE MONTHS ENDED
OCTOBER 31, 2002
Revenues from operations for the three months ended October 31, 2003
were $10.3 million a decrease of $7.1 million over revenues from operations for
the three months ended October 31, 2002. This decrease was due to a decrease of
$7.7 million in revenues from our research product sales operations offset by an
increase of $.6 million in revenues from clinical reference laboratory operation
over revenues for such activities in the period ended October 31, 2003.
The decrease in research product sales resulted primarily from a
decrease in direct sales of research products of labeling and detection reagents
for the genomics and sequencing markets related to the decrease sales based on
the termination of a contract with one major distributor. Research product
revenue from this one major distributor accounted for approximately 83% of the
Company's total research product revenues in the period ended October 31, 2002.
See "Item 1. Legal Proceedings."
The increase of clinical laboratory services revenue was due primarily
to increased volume of higher priced esoteric tests. Clinical laboratory
services are provided to patients covered by various third party payor programs,
including Medicare and health maintenance organizations ("HMO's"). Billings for
services are included in revenue net of allowances for contractual discounts and
allowances paid for differences between the amounts billed and the estimated
amount to be paid. Recent trends had indicated a decrease in the collection
rates from the Medicare Program, certain third party payors and HMO's. The
clinical laboratory is subject to seasonal fluctuations in operating results.
Volume of testing generally declines during the summer months, the year-end
holiday periods and other major holidays. In addition, volume declines due to
inclement weather may reduce net revenues. Therefore, comparison of the results
of successive quarters may not accurately reflect trends or results for the full
year.
The cost of research products sold decreased by $.9 million to $.4
million from the prior three month period. This decrease was primarily due to
the decrease in expenditures related to the decreased sales based on the
termination of a contract with one major distributor.
The cost of clinical laboratory services increased by $.2 million
during this period primarily due to an increase in certain esoteric tests.
Research and development expenses increased by approximately $.1
million as a result of an increase in the expenses related to the clinical trial
activities and other research projects.
Selling expenses decreased by $.4 million during these three months
ended, as compared to the prior year's three months. This decrease was primarily
due to a reduction of orders shipped to one major distributor of research
products. See "Item 1. Legal Proceedings."
General and administrative expenses increased by $.4 million due to the
increase in overall insurance costs of professional, directors & officers,
liability insurance premiums and an increase in data processing personnel costs.
The Company's legal expenses increased by $.2 million to $.9 million
from $.7 million as compared to the previous year. This increase is primarily
due to the increase in patent infringement proceedings and the increase in the
overall legal activities on these infringement proceedings.
12
The Company's provision for uncollectible accounts receivable increased
by $.2 million to $2.4 million from $2.2 million as compared to the same three
month period last year at the clinical laboratory division. The percentage of
the provision for uncollectible accounts receivable as a relationship to revenue
increased to 31.6% for these three months ended as compared to 31.3% for the
same three month period last year. This increase was primarily due to the change
in the mix of payors.
Interest income was comparable to last years prior three months ended.
For the three months ended October 31, 2003, the Company recorded a
benefit for income taxes of $.5 million based upon the combined effective
federal, state and local income tax rates. For the three months ended October
31, 2002, the Company recorded a provision for income taxes of $2.4 million
which was based on the combined effective federal, state and local income tax
rates.
Income (loss) before (provision) benefit for taxes on income from the
research and development segment activities and related costs was $(71,000) in
for period ended October 31, 2003, as compared to income before provision for
taxes on income of $6.3 million in for period ended October 31, 2002. The
decrease in the income resulted primarily from a decrease in direct sales of
research products of labeling and detection reagents for the genomics and
sequencing markets to one major distributor. Income before provision for taxes
on income from the clinical reference laboratories segment amounted to a $.7
million for period ending October 31, 2003, as compared to income of $.8 million
for fiscal 2002. The decrease in income before taxes for the clinical laboratory
segment was primarily due to the increase in costs based on an increase in
volume of esoteric tests being ordered by physicians. These esoteric tests have
higher pricing levels as compared to the regular tests performed at the
laboratory.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The Company's earnings and cash flows are subject to fluctuations due to changes
in interest rates primarily from its investment of available cash balances in
investment grade corporate and U.S. government securities. Under its current
policies, the Company does not use interest rate derivative instruments to
manage exposure to interest rate changes.
Item 4. Controls and Procedures
Under the supervision and with the participation of the Company's management,
including the Company's Chief Executive Officer and Chief Financial Officer, the
Company has evaluated the effectiveness of the design and operation of its
disclosure controls and procedures pursuant to Exchange Act Rule 13a-14c within
90 days of the filing date of this quarterly report. Based on that evaluation,
the Chief Executive Officer and Chief Financial Officer have concluded that
these disclosure controls and procedures are effective. There were no
significant changes in the Company's internal controls or in other factors that
could significantly affect internal controls subsequent to the date of their
evaluation.
13
PART II - Other Information
Item 1. LEGAL PROCEEDINGS
In June 1999, the Company filed suit in the United States District Court for the
Southern District of New York against Gen-Probe Incorporated, Chugai Pharma
U.S.A., Inc., Chugai Pharmaceutical Co., Ltd., bioMerieux, Inc., bioMerieux SA,
and Becton Dickinson and Company, charging them with infringing the Company's
U.S. Patent 4,900,659, which concerns probes for the detection of the bacteria
that causes gonorrhea. On January 26, 2001, the court granted the defendants'
motion for summary judgment that the Company's patent is invalid. On July 15,
2002, the Court of Appeals for the Federal Circuit reversed the judgment of
invalidity and remanded the case to the district court for further proceedings.
In March 2003, settlements have been reached with bioMerieux and Chugai; the
settlements did not have a material monetary impact on the Company. There can be
no assurance that the Company will be successful in the on-going proceedings.
However, even if the Company is not successful, management does not believe that
there will be a significant adverse monetary impact to the Company.
On March 6, 2002, the Company was named, along with certain of its officers and
directors among others, in a complaint entitled Lawrence F. Glaser and Maureen
Glaser, individually and on behalf of Kimberly, Erin, Hannah, and Benjamin
Glasser v. Hyman Gross, Barry Weiner, Enzo Biochemical Inc., Elazar Rabbani,
Shahram Rabbani, John Delucca, Dean Engelhardt, Richard Keating, Doug Yates and
Docs 1-50, in the U.S. District Court for the Eastern District of Virginia. The
complaint was filed by an investor in the Company who has filed for bankruptcy
protection and his family. The complaint alleged securities and common law fraud
and breach of fiduciary duty and seeks in excess of $150 million in damages. On
August 22, 2002, the complaint was voluntarily dismissed; however a new
substantially similar complaint was filed at the same time. On October 21, 2002,
the Company and the other defendants filed a motion to dismiss the complaint,
and the plaintiffs responded by amending the complaint and dropping their claims
against defendants Keating and Yates. On November 18, 2002, the Company and the
other defendants again moved to dismiss the Amended Complaint. On July 16, 2003,
the Court issued a Memorandum Opinion dismissing the Amended Complaint in its
entirety with prejudice. Plaintiffs thereafter moved for reconsideration but the
Court denied the motion on September 8, 2003. The plaintiffs subsequently
appealed to the Fourth Circuit and that appeal is presently pending. The Company
does not believe that the complaint has any merit and was correctly dismissed,
and intends to continue to defend the complaint vigorously in any event.
In March 2002, Enzo Life Sciences, a subsidiary of the Company, filed suit in
the United States District Court for the District of Delaware against Digene
Corp., charging it with infringing the Company's U.S. Patent No. 6,221,581 B1,
which concerns a novel process for detecting nucleic acids of interest. On May
31, 2002, Digene filed counterclaims in that suit against Enzo Life Sciences and
the Company, including business tort counterclaims relating to the `581 patent.
Digene further contends that the Company has caused it substantial damage by
interfering with business and financial opportunities. There can be no assurance
that the Company and Enzo Life Sciences will be successful in these proceedings.
However, even if Enzo Life Sciences is not successful in its patent infringement
suit, management does not believe that there will be a significant adverse
monetary impact to the Company. With respect to Digene's counterclaims, the
Company and Enzo Life Sciences believe them to be without merit and intend to
defend themselves vigorously. Trial is scheduled for March 22, 2004.
In October 2002, the Company filed suit in the United States District Court of
the Southern District of New York against Amersham plc, Amersham Biosciences,
Perkin Elmer, Inc., Perkin Elmer Life Sciences, Inc., Sigma-Aldrich Corporation,
Sigma Chemical Company, Inc., Molecular Probes, Inc. and Orchid Biosciences,
Inc. In January 2003, the Company amended its complaint to include defendants
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Sigma Aldrich Co. and Sigma Aldrich, Inc. The counts set forth in the suit are
for breach of contract; patent infringement; unfair competition under state law;
unfair competition under federal law; tortuous interference with business
relations; and fraud in the inducement of contract. The complaint alleges that
these counts arise out of the defendants' breach of distributorship agreements
with the Company concerning labeled nucleotide products and technology, and the
defendants' infringement of patents covering the same. In April, 2003, the Court
directed that individual complaints be filed separately against each defendant.
Enzo has done so and has added Yale for technical reasons relating to its
standing to enforce the four Yale patents of which Enzo is exclusive licensee.
Yale and Enzo are aligned in protecting the validity and enforceability of the
subject patents. In June, 2003, the Court directed all parties to submit a
stipulation setting forth dates for the completion of discovery. A stipulation
to this effect is currently being negotiated and is likely to provide for
discovery to take place through early 2004, with a trial to take place in 2004.
Defendants have not yet answered the individual complaints although it is
anticipated that the answers, when filed, will include a number of affirmative
defenses and, possible, counterclaim. In addition, two of the Defendants filed
motions to dismiss Enzo's patent infringement claims as to four of the
patents-in-suit on the grounds that Enzo is not the exclusive licensee of such
patents. On October 16, 2003, the court heard oral argument on the motion and
reserved its decision. There can be no assurance that the Company will be
successful in this litigation. However, even if the Company is not successful,
management does not believe that there will be a significant adverse monetary
impact to the Company.
On October 28, 2003, the Company and Enzo Life Sciences, Inc., a subsidiary of
the Company, filed suit in the United States District Court of the Eastern
District of New York against Affymetrix, Inc. The Complaint alleges that
Affymetrix improperly transferred or distributed substantial business assets of
the Company to third parties, including portions of the Company's proprietary
technology, reagent systems, detection reagents and other intellectual property.
The Complaint also charges that Affymetrix failed to account for certain
shortfalls in sales of the Company's products, and that Affymetrix improperly
induced collaborators and customers to use the Company's products in
unauthorized fields or otherwise in violation of the agreement. The Complaint
seeks full compensation from Affymetrix to the Company for its substantial
damages, in addition to injunctive and declaratory relief to prohibit, among
other things, Affymetrix's unauthorized use, development, manufacture, sale,
distribution and transfer of the Company's products, technology, and/or
intellectual property, as well as to prohibit Affymetrix from inducing
collaborators, joint venture partners, customers and other third parties to use
the Company's products in violation of the terms of the agreement and the
Company's rights. Subsequent to the filing of the Complaint against Affymetrix,
Inc. referenced above, on or about November 10, 2003, Affymetrix, Inc. filed its
own complaint against the Company and its subsidiary, Enzo Life Sciences, Inc.,
in the United States District Court for the Southern District of New York,
seeking among other things, declaratory relief that Affymetrix, Inc., has not
breached the parties' agreement, that it has not infringed certain of Enzo's
Patents, and that certain of Enzo's patents are invalid, and damages for alleged
breach of the parties' agreement, unfair competition, and tortuous interference,
as well as certain injunction relief to prevent alleged unfair competition and
tortuous interference. The Company does not believe that the complaint has any
merit and intends to defend vigorously.
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Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
Exhibit No. Exhibit
31(a) Certification of Elazar Rabbani, Ph.D. pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
31(b) Certification of Barry Weiner pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.
32(a) Certification of Elazar Rabbani, Ph.D. pursuant to
18 U.S.C. ss. 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002.
32(b) Certification of Barry Weiner pursuant to 18 U.S.C.
ss.1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
(b) REPORTS ON FORM 8-K.
One Form 8-K dated October 29, 2003 was furnished to the
Securities and Exchange Commission during the quarter ended October 31, 2003,
pursuant to Item 12 of Form 8-K. Pursuant to General Instruction B of Form 8-K,
information furnished pursuant to Item 12 is not deemed to be "filed" for the
purposes of Section 18 of the Securities Exchange Act of 1934, is not
incorporated by reference into this Report on Form 10-Q and Enzo does not intend
to incorporate that report on Form 8-K by reference into any filing under the
Securities Act of 1933 or the Securities Exchange Act of 1934.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENZO BIOCHEM, INC.
(registrant)
Date: December 12, 2003 by: /s/ BARRY WEINER
------------------------
Chief Financial Officer,
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