Exhibit 10.1
SUBSCRIPTION AGREEMENT
Enzo Biochem, Inc.
527 Madison Ave.
New York, NY 10022
Gentlemen:
The undersigned (the "INVESTOR") hereby confirms its agreement with you as
follows:
1. This Subscription Agreement (this "AGREEMENT") is made as of the date
set forth below between Enzo Biochem, Inc., a New York corporation (the
"COMPANY"), and the Investor.
2. The Company has authorized the sale and issuance to the Investor of up
to an aggregate of 1,000,000 shares (the "SHARES") of its Common Stock, par
value $0.01 per share (the "COMMON STOCK"), subject to adjustment by the
Company's Board of Directors, or a committee thereof, for a purchase price of
$15.00 per share (the "PURCHASE PRICE").
3. The offering and sale of the Shares (the "OFFERING") are being made
pursuant to (1) an effective Registration Statement on Form S-3 (including the
Prospectus contained therein (the "BASE PROSPECTUS"), the "REGISTRATION
STATEMENT") filed by the Company with the Securities and Exchange Commission
(the "COMMISSION"), (2) if applicable, certain "free writing prospectuses" (as
that term is defined in Rule 405 under the Securities Act of 1933, as amended),
that have been or will be filed with the Commission and delivered to the
Investor on or prior to the date hereof and (3) a Prospectus Supplement (the
"PROSPECTUS SUPPLEMENT" and together with the Base Prospectus, the "PROSPECTUS")
containing certain supplemental information regarding the Shares and terms of
the Offering that will be filed with the Commission and delivered to the
Investor (or made available to the Investor by the filing by the Company of an
electronic version thereof with the Commission).
4. The Company and the Investor agree that the Investor will purchase from
the Company and the Company will issue and sell to the Investor the Shares of
Common Stock set forth below for the aggregate purchase price set forth below.
The Shares shall be purchased pursuant to the Terms and Conditions for Purchase
of Shares attached hereto as ANNEX I and incorporated herein by this reference
as if fully set forth herein. The Investor acknowledges that the Offering is not
being underwritten by the placement agent (the "PLACEMENT AGENT") named in the
Prospectus Supplement and that there is no minimum offering amount.
5. The manner of settlement of the Shares purchased by the Investor shall
be Delivery versus Payment ("DVP") through The Depository Trust Company ("DTC")
(i.e., the Company shall deliver Shares registered in the Investor's name and
address as set forth below and released by the American Stock Transfer & Trust
Company, the Company's transfer agent (the "TRANSFER AGENT") to the Investor
through DTC at the Closing directly to the account(s) at Lazard Capital Markets
LLC ("LCM") identified by the Investor and simultaneously therewith payment
shall be made by LCM by wire transfer to the Company). NO LATER THAN ONE (1)
BUSINESS DAY AFTER THE
EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
(I) NOTIFY LCM OF THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH
THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND
(II) CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH
THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE
EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING
PURCHASED BY THE INVESTOR.
IT IS THE INVESTOR'S RESPONSIBILITY TO (A) CONFIRM THE PROPER ACCOUNT BALANCE IN
A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY DVP IN A TIMELY MANNER. IF THE
INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES
NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY
NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM
THE CLOSING ALTOGETHER.
6. The Investor represents that, except as set forth below, (a) it has had
no position, office or other material relationship within the past three years
with the Company or persons known to it to be affiliates of the Company, (b) it
is not a NASD member or an Associated Person (as such term is defined under the
NASD Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering of the Shares, acquired, or obtained the right to acquire, 20%
or more of the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a post-transaction basis.
Exceptions:
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(If no exceptions, write "none." If left blank, response will be
deemed to be "none.")
7. The Investor represents that it has received (or otherwise had made
available to it by the filing by the Company of an electronic version thereof
with the Commission) the Base Prospectus, dated November 3, 2006, which is a
part of the Company's Registration Statement, the documents incorporated by
reference therein and any free writing prospectus (collectively, the "DISCLOSURE
PACKAGE"), prior to or in connection with the receipt of this Agreement. The
Investor acknowledges that, prior to the delivery of this Agreement to the
Company, the Investor will receive certain additional information regarding the
Offering, including pricing information (the "OFFERING INFORMATION"). Such
information may be provided to the Investor by any means permitted under the
Act, including the Prospectus Supplement, a free writing prospectus and oral
communications.
8. No offer by the Investor to buy Shares will be accepted and no part of
the Purchase Price will be delivered to the Company until the Investor has
received the Offering Information and the Company has accepted such offer by
countersigning a copy of this Agreement, and any such offer may be withdrawn or
revoked, without obligation or commitment of any kind, at any time prior to the
Company (or a Placement Agent on behalf of the Company) sending (orally, in
writing or by electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or
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commitment of any kind until the Investor has been delivered the Offering
Information and this Agreement is accepted and countersigned by or on behalf of
the Company.
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Number of Shares:
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Purchase Price Per Share: $
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Aggregate Purchase Price: $
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Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose.
Dated as of: February 2, 2007
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INVESTOR
By:
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Print Name:
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Title:
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Address:
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Agreed and Accepted
this 2nd day of February, 2007:
ENZO BIOCHEM, INC.
By:
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Name:
Title:
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. AUTHORIZATION AND SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of the Shares.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES; PLACEMENT AGENT.
2.1 At the Closing (as defined in SECTION 3.1), the Company will
sell to the Investor, and the Investor will purchase from the Company, upon the
terms and conditions set forth herein, the number of Shares set forth on the
last page of the Agreement to which these Terms and Conditions for Purchase of
Shares are attached as ANNEX I (the "SIGNATURE PAGE") for the aggregate purchase
price therefor set forth on the Signature Page.
2.2 Investor acknowledges that the Company has agreed to pay Lazard
Capital Markets LLC (the "PLACEMENT AGENT") a fee (the "PLACEMENT FEE") in
respect of the sale of Shares to the Investor.
2.3 The Company has entered into a Placement Agent Agreement, dated
February 2, 2007 (the "PLACEMENT AGREEMENT"), with the Placement Agent that
contains certain representations, warranties, covenants and agreements of the
Company that may be relied upon by the Investor, which shall be a third party
beneficiary thereof.
3. CLOSINGS AND DELIVERY OF THE SHARES AND FUNDS.
3.1 CLOSING. The completion of the purchase and sale of the Shares
(the "CLOSING") shall occur at a place and time (the "CLOSING DATE") to be
specified by the Company and the Placement Agent, and of which the Investor will
be notified in advance by the Placement Agent, in accordance with Rule 15c6-1
promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"). At the Closing, (a) the Company shall cause the Transfer Agent to deliver
to the Investor, pursuant to section 3.4 herein, the number of Shares set forth
on the Signature Page registered in the name of the Investor or, if so indicated
on the Investor Questionnaire attached hereto as EXHIBIT A, in the name of a
nominee designated by the Investor and (b) the aggregate purchase price for the
Shares being purchased by the Investor will be delivered by or on behalf of the
Investor to the Company.
3.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS. (a) The Company's
obligation to issue and sell the Shares to the Investor shall be subject to: (i)
the receipt by the Company of the purchase price for the Shares being purchased
hereunder as set forth on the Signature Page and (ii) the accuracy of the
representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing Date.
(b) CONDITIONS TO THE INVESTOR'S OBLIGATIONS. The Investor's
obligation to purchase the Shares will be subject to the accuracy of the
representations and warranties made by the Company and the fulfillment of those
undertakings of the Company to be fulfilled prior to the Closing Date, including
without limitation, those contained in this Agreement and the Placement
Agreement, and to the condition that the Placement Agent shall not have: (a)
terminated the Placement Agreement
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pursuant to the terms thereof or (b) determined that the conditions to the
closing in the Placement Agreement have not been satisfied.
3.3 DELIVERY OF FUNDS. DELIVERY VERSUS PAYMENT THROUGH THE
DEPOSITORY TRUST COMPANY. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION
OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, the Investor shall confirm
that the account or accounts at Lazard Capital Markets LLC ("LCM") to be
credited with the Shares being purchased by the Investor have a minimum balance
equal to the aggregate purchase price for the Shares being purchased by the
Investor.
3.4 DELIVERY OF SHARES. DELIVERY VERSUS PAYMENT THROUGH THE
DEPOSITORY TRUST COMPANY. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION
OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, the Investor shall notify LCM
of the account or accounts at LCM to be credited with the Shares being purchased
by such Investor. On the Closing Date, the Company shall deliver the Shares to
the Investor through DTC directly to the account(s) at LCM identified by
Investor and simultaneously therewith payment shall be made by LCM by wire
transfer to the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
The Investor represents and warrants to, and agrees with, the Company
and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and
experienced in making, and is qualified to make decisions with respect to,
investments in shares presenting an investment decision like that involved in
the purchase of the Shares, including investments in securities issued by the
Company and investments in comparable companies, (b) has answered all questions
on the Signature Page and the Investor Questionnaire and the answers thereto are
true and correct as of the date hereof and will be true and correct as of the
Closing Date and (c) in connection with its decision to purchase the number of
Shares set forth on the Signature Page, has received and is relying only upon
the Disclosure Package, the documents incorporated by reference therein and the
Offering Information.
4.2 If the Investor is outside the United States, it will comply
with all applicable laws and regulations in each foreign jurisdiction in which
it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense.
4.3 (a) The Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement, and (b) this Agreement constitutes a valid
and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as to the enforceability of any rights to indemnification or
contribution that may be violative of the public policy underlying any law, rule
or regulation (including any federal or state securities law, rule or
regulation).
4.4 The Investor understands that nothing in this Agreement, the
Prospectus or any other materials presented to the Investor in connection with
the purchase and sale of the Shares constitutes legal, tax or investment
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advice. The Investor has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection
with its purchase of Shares.
4.5 Since the date on which the Placement Agent first contacted
such Investor about the Offering, it has not engaged in any transactions in the
securities of the Company (including, without limitation, any Short Sales
involving the Company's securities). Each Investor covenants that it will not
engage in any transactions in the securities of the Company (including Short
Sales) prior to the time that the transactions contemplated by this Agreement
are publicly disclosed. Each Investor agrees that it will not use any of the
Shares acquired pursuant to this Agreement to cover any short position in the
Common Stock if doing so would be in violation of applicable securities laws.
For purposes hereof, "Short Sales" include, without limitation, all "short
sales" as defined in Rule 200 promulgated under Regulation SHO under the
Exchange Act, whether or not against the box, and all types of direct and
indirect stock pledges, forward sales contracts, options, puts, calls, short
sales, swaps, "put equivalent positions" (as defined in Rule 16a-1(h) under the
Exchange Act) and similar arrangements (including on a total return basis), and
sales and other transactions through non-US broker dealers or foreign regulated
brokers.
5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS; THIRD
PARTY BENEFICIARY. Notwithstanding any investigation made by any party to this
Agreement or by the Placement Agent, all covenants, agreements, representations
and warranties made by the Company and the Investor herein will survive the
execution of this Agreement, the delivery to the Investor of the Shares being
purchased and the payment therefor. The Placement Agent and Lazard Freres & Co.
shall be third party beneficiaries with respect to the representations,
warranties and agreements of the Investor in Section 4 hereof.
6. NOTICES. All notices, requests, consents and other
communications hereunder will be in writing, will be mailed (a) if within the
domestic United States by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International
Federal Express or facsimile, and will be deemed given (i) if delivered by
first-class registered or certified mail domestic, three business days after so
mailed, (ii) if delivered by nationally recognized overnight carrier, one
business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed and (iv) if delivered by facsimile,
upon electric confirmation of receipt and will be delivered and addressed as
follows:
(A) IF TO THE COMPANY, TO:
Enzo Biochem, Inc.
527 Madison Ave.
New York, NY 10022
Attention: Barry Weiner, President and Chief Financial Officer
Facsimile: 212-583-0150
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WITH COPIES TO:
Greenberg Traurig, LLP
MetLife Building
200 Park Avenue
New York, NY 10166
Attention: Robert H. Cohen
Facsimile: 212-801-6400
(b) if to the Investor, at its address on the Signature Page
hereto, or at such other address or addresses as may have been
furnished to the Company in writing.
7. CHANGES. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the
Investor.
8. HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and will not be
deemed to be part of this Agreement.
9. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.
10. GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the internal laws of the State of New York, without
giving effect to the principles of conflicts of law that would require
the application of the laws of any other jurisdiction.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will constitute an original, but all of
which, when taken together, will constitute but one instrument, and
will become effective when one or more counterparts have been signed by
each party hereto and delivered to the other parties. The Company and
the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Prospectus Supplement (or
the filing by the Company of an electronic version thereof with the
Commission).
12. CONFIRMATION OF SALE. The Investor acknowledges and agrees that
such Investor's receipt of the Company's counterpart to this Agreement,
together with the Prospectus Supplement (or the filing by the Company
of an electronic version thereof with the Commission), shall constitute
written confirmation of the Company's sale of Shares to such Investor.
13. PRESS RELEASE. The Company and the Investor agree that the Company
shall issue a press release announcing the Offering prior to the
opening of the financial markets in New York City on the business day
immediately after the date hereof.
14. TERMINATION. In the event that the Placement Agreement is
terminated by the Placement Agent pursuant to the terms thereof, this
Agreement shall terminate without any further action on the part of the
parties hereto.
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EXHIBIT A
ENZO BIOCHEM, INC.
INVESTOR QUESTIONNAIRE
Pursuant to SECTION 3 of ANNEX I to the Agreement, please provide us
with the following information:
1. The exact name that your Shares are to be
registered in. You may use a nominee name __________________________
if appropriate:
2. The relationship between the Investor and
the registered holder listed in response _________________________
to item 1 above:
3. The mailing address of the registered
holder listed in response to item 1 _________________________
above:
4. The Social Security Number or Tax
Identification Number of the registered _________________________
holder listed in the response to item 1
above: