SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the
Registrant ¨
Filed by a Party
other than the Registrant þ
Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Under Rule 14a-12
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Enzo Biochem, Inc.
(Name of Registrant as Specified In Its Charter)
Harbert Discovery Fund GP, LLC
Harbert Discovery Co-Investment Fund I, LP
Harbert Discovery Co-Investment Fund I GP, LLC
Harbert Fund Advisors, Inc.
Harbert Management Corporation
Jack Bryant
Kenan Lucas
Raymond Harbert
Fabian Blank
Peter J. Clemens, IV
(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 Rule 14a-6(i)(4) and 0-11.
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Fee paid previously with preliminary materials.
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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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Date Filed:
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PRELIMINARY COPY SUBJECT TO COMPLETION
DATED [●], 2019
ENZO BIOCHEM, INC.
527 Madison Avenue
New York, New York 10022
__________________________
PROXY STATEMENT
OF
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Harbert
Discovery Fund, LP and
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Harbert Discovery Co-Investment Fund I, LP
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_________________________
PLEASE SIGN, DATE AND MAIL THE ENCLOSED BLUE
PROXY CARD TODAY
This Proxy Statement and the enclosed BLUE
proxy card are being furnished by Harbert Discovery Fund, LP, Harbert Discovery Co-Investment Fund I, LP and certain of their
affiliates (as identified in Annex I, “Harbert Discovery”, “we”, “our” or “us”), and
the nominees named in Proposal 1 (the “Nominees” and together with Harbert, the “Participants”) in
connection with the solicitation of proxies from the shareholders of Enzo Biochem, Inc., a New York corporation
(“Enzo” or the “Company”).
We believe that while Enzo has tremendous assets, it is deeply
undervalued. In our view, this reality is the result of the Enzo management team’s persistent inability to execute
on stated strategy, deliver value on the Company’s technology potential and prudently manage the cost structure of the
business[1]. We believe the Nominees will bring much needed shareholder perspectives to the current
board of directors of the Company (the “Board”). We are therefore seeking your support at the upcoming 2019
annual meeting of shareholders (the “Annual Meeting”), to be held on [ ], at [ ] unless adjourned or postponed to
a later date, with respect to the following (each, a “Proposal” and, collectively, the
“Proposals”):
This Proxy Statement and BLUE proxy card are first
being mailed or given to the Company’s shareholders on or about [ ].
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Proposal
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Our Recommendation
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1.
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To elect Harbert Discovery’s slate of two director
nominees — Fabian Blank and Peter J. Clemens, IV (each, a “Nominee” and collectively, the
“Nominees”), to serve as Class II directors and to hold office for a term of three (3) years or until their
successors have been duly elected and qualified
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FOR each of the Nominees
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2.
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To approve, by a nonbinding advisory vote, the compensation of the Company’s Named Executive Officers
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[FOR] [AGAINST]
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3.
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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, 2020
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FOR
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To transact any other business that may properly come before the meeting or any postponement or adjournment thereof.
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_________________________________
[1] For a thorough analysis of the calculations underpinning
our view, see our DFAN14A, filed with the SEC on September 17, 2019.
The
Board is currently composed of five directors divided into three classes. The terms of two Class II directors will expire at
the Annual Meeting and, according to the Company’s proxy statement for the Annual Meeting
filed on Schedule 14A with the Securities and Exchange Commission (the “SEC”) on [ ], (the
“Company’s Proxy Statement”), there will be two directors elected at the Annual Meeting. Through this Proxy
Statement and enclosed BLUE proxy card, we are soliciting proxies to elect the Nominees named herein to serve
as directors, who if elected would only constitute a minority of the Board. The names, backgrounds and qualifications of the
Company’s nominees and the directors who are continuing in office, and other information about them, can be found in
the Company's Proxy Statement. There is no assurance that any of the Company’s nominees will serve as directors if any
or all of our Nominees are elected.
The Company has set the record date for determining
shareholders entitled to notice of and to vote at the Annual Meeting (the “Record Date”) as [December 3, 2019].
Shareholders of record at the close of business on the Record Date will be entitled to vote at the Annual Meeting. At the
close of business on the Record Date, there were [ ] shares of common stock, par value $0.01 per share (“Common
Stock”), outstanding according to the Company’s Proxy Statement. As of the close of business on [ ], the
Participants beneficially owned [5,630,961] shares of Common Stock in the aggregate, as further described in Annex I.
We urge you to sign, date and return the BLUE proxy card “FOR” each of the
Nominees to the Board, “[FOR] [AGAINST]” Proposal 2 and “FOR” Proposal 3.
This proxy solicitation is being made by Harbert Discovery
and the Nominees, and not on behalf of the Board or management of the Company or any other third party. We are
not aware of any other matters to be brought before the Annual Meeting other than as described herein. Should
other matters be brought before the Annual Meeting, the persons named as proxies in the enclosed BLUE proxy
card will vote on such matters in their discretion.
If you have already voted using the Company’s [white] proxy
card, you have every right to change your vote by completing and mailing the enclosed BLUE proxy card in the enclosed pre-paid
envelope or by voting via Internet or by telephone by following the instructions on the BLUE proxy card. Only the latest
validly executed proxy that you submit will be counted; any proxy may be revoked at any time prior to its exercise at the Annual
Meeting by following the instructions under “Can I change my vote or revoke my proxy?” in the Questions and Answers
section.
For
instructions on how to vote and other information about the proxy materials, see the Questions and Answers section starting on
page 10.
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We urge you to promptly
sign, date and return your BLUE proxy card.
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If you have any questions or require any assistance with voting
your shares, please contact our proxy solicitor, Okapi Partners LLC, (“Okapi”), toll free at (888) 785-6707 or collect
at (212) 297-0720.
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BACKGROUND OF THIS PROXY SOLICITATION
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Harbert Discovery invested in Enzo because we believe its
shares are undervalued and represent an attractive investment opportunity. We made our investment in the Company after
several months of due diligence because, in spite of what we see as decades of poor oversight and mismanagement, Enzo has a
collection of businesses and assets that we believe – with a sound growth strategy, more prudent expense structure,
appropriate capital allocation, and effective independent oversight – could be worth significantly more than the value
currently ascribed by the market.
On October 22, 2018, representatives of Harbert Discovery
(the “Harbert Discovery Representatives”) called the Company’s President, Chief Financial Officer,
Principal Accounting Officer and Director, Barry Weiner (“Mr. Weiner”) to discuss Enzo, the history of the
Company and its outlook.
On November 15, 2018, the Harbert Discovery Representatives met
with Mr. Weiner in the Company’s offices to discuss the Company and its strategy in more detail.
On December 18, 2018, the Harbert Discovery Representatives
held a call with Mr. Weiner to discuss the 2019 first quarter results, the ampiprobe platform and the Company’s
strategy.
On January 3, 2019, as part of an ongoing effort to remain
engaged with the Company, the Harbert Discovery Representatives attended the Company’s 2018 annual meeting of
shareholders.
On January 14, 2019, the Harbert Discovery Representatives
toured the Company’s laboratory with James M. O’Brien, the Company’s Senior Vice President of Finance.
On March 27, 2019, the Harbert Discovery Representatives held a
call with Mr. Weiner to discuss the 2019 second quarter results and the Company’s strategy moving forward.
On May 7, 2019, the Harbert Discovery Representatives met with
the Company’s Chief Executive Officer and Chairman of the Board, Dr. Elazar Rabbani (“Dr. Rabbani”), and Mr.
Weiner, at the Company’s office in New York to discuss the Company, its strategy and management’s plan to return
the clinical labs segment to profitability.
On May 28, 2019, the Harbert Discovery Representatives had
a telephone conversation with Mr. Weiner in which the Harbert Discovery Representatives requested (1) the replacement, prior
to the Annual Meeting, of two of the Board’s current incumbent directors with the Nominees, Fabian Blank
(“Mr. Blank”) and Peter J. Clemens, IV (“Mr. Clemens”); (2) the Company to take all necessary steps
to declassify the Board at the Annual Meeting so that the Board would be elected annually, in line with best governance
practices; and (3) a Board observer role for Kenan Lucas (“Mr. Lucas”), the Managing Director and Portfolio
Manager of Harbert Discovery.
On June 13, 2019, the Harbert Discovery Representatives had a
conversation with Mr. Weiner, during which Mr. Weiner replied to Harbert Discovery by stating that it was too early to
have discussions regarding Enzo’s proxy statement and plans for the upcoming Annual Meeting. The Harbert Discovery
Representatives reiterated that Harbert Discovery was looking for its requests made in the May 28, 2019 call to be effected
collaboratively and prior to the issuance of the Company’s proxy statement.
On June 24, 2019, Mr. Lucas emailed Mr. Weiner and the Chairman
of the Board’s Nominating and Corporate Governance Committee, Bruce Hanna (“Mr. Hanna”), requesting a call
and restating the Harbert Discovery Representatives’ three requests in an attempt to work constructively with the Board
to reach an amicable outcome.
On June 25, 2019, Mr. Hanna responded to Mr. Lucas’ June
24 email by expressing that a call should be held after July 4. On that same day, Mr. Lucas responded to Mr. Hanna and Mr.
Weiner asking for a 30-minute conversation on June 26 or 27. Mr. Hanna responded that same day, again asking for the call to
be after July 4. Mr. Lucas responded expressing frustration at the delay and reiterating that the Harbert Discovery
Representatives preferred to have a call sooner and that waiting almost two weeks would not be conducive to working
cooperatively.
On June 26, 2019, Mr. Lucas and Mr. Hanna set up a call for July
8 by email.
On July 8, 2019, Mr. Lucas had a telephone conversation with Mr.
Hanna. Mr. Hanna said he would get back to Mr. Lucas in a day or two.
On July 10, 2019, Mr. Lucas emailed Mr. Hanna as a follow up to
the July 8 call to see if any progress had been made. Mr. Hanna responded the same day noting that the Board had met to discuss
the Harbert Discovery Representatives’ requests and that a written response was being prepared.
On July 12, 2019, Mr. Lucas emailed Mr. Hanna asking when the Harbert
Discovery Representatives could expect to receive the Board’s written response. That same day Mr. Hanna emailed Mr. Lucas
the Board’s response, which was in the form of an email from Mr. Hanna. In his email, Mr. Hanna conveyed that the Board
would not agree to meet any of the Harbert Discovery Representatives’ requests.
On July 25, 2019, Mr. Lucas responded to Mr. Hanna’s July
12 email, copying Mr. Weiner. Mr. Lucas expressed disappointment in the Board’s rejection of the Harbert Discovery
Representatives’ requests, but noted he was reaching out to the Company again in an attempt to open a constructive and
cooperative dialogue in the hopes of reaching a mutually-agreeable solution that would benefit the Company and its
shareholders. To that end, Mr. Lucas included the resumes of the Nominees.
On July 30, 2019, Mr. Hanna emailed Mr. Lucas stating that Mr.
Hanna was in receipt of the resumes of the Nominees and that Mr. Hanna was having the resumes sent to the other members of
the Board’s Nominating and Corporate Governance Committee as part of its due process. Mr. Lucas responded on the same
day stating that Harbert Discovery was looking for meaningful and immediate change to the Board, not, what was in the Harbert
Representatives’ view, a mechanical, half-hearted fulfillment of “due process” by the
Board’s Nominating and Corporate Governance Committee in preparing the proxy statement for the next Annual Meeting.
After over a month of silence from the Company, on
September 17, 2019, Harbert Discovery issued a public letter to the Company shareholders stating that it was nominating Mr.
Clemens and Mr. Blank for election to the Board at the Company’s upcoming 2019 Annual Meeting of Shareholders. On that
same day, Harbert Discovery delivered a notice of its intent to nominate the Nominees to the Company and launched a website,
www.cureenzo.com, where shareholders could find out more information about the Nominees and Harbert Discovery’s
campaign to unlock shareholder value.
On October 6, 2019, Mr. Blank emailed Mr. Weiner, and copied Mr.
Clemens, offering to meet in person or by phone to establish a basis for a constructive dialogue.
On October 8, 2019, Dr. Rabbani emailed Mr. Clemens and Mr.
Blank, and copied Mr. Weiner and the Company’s outside counsel. Dr. Rabbani stated that the Company would interview Mr.
Clemens and Mr. Blank, and that the Company’s outside counsel would coordinate with Harbert Discovery regarding
logistics and related paperwork.
On October 9, 2019, the Company’s outside counsel emailed
Mr. Blank, Mr. Clemens, Mr. Lucas and Harbert Discovery’s outside counsel with a formal invitation for interviews and an
extensive 63-page questionnaire for Mr. Blank and Mr. Clemens to fill out.
On October 10, 2019, Mr. Lucas emailed Dr. Rabbani and
Mr. Weiner, seeking a business person to business person dialogue, with the Nominees being included in such dialogue, as
the Harbert Discovery Representatives felt that cooperative engagement from the Company was needed in order to move forward
and that Harbert Discovery and the Company should agree on a framework for an amicable settlement before getting bogged down
in paperwork. Mr. Weiner neglected to respond to the request to begin such a dialogue.
On October 14, 2019, Dr. Rabbani’s assistant emailed Mr.
Lucas, with a copy to Dr. Rabbani, offering to have preliminary interviews with the Board for Mr. Clemens and Mr. Blank,
stating that the Board members’ calendars were being checked for availability, and stating that the 63-page
questionnaires sent by the Company’s outside counsel on October 9 would need to be completed as part of any subsequent
formal interview process. The email did not respond to Harbert Discovery’s request for a meeting amongst principals, which is
perhaps the most fundamental step in reaching a negotiated settlement.
On October 16, 2019, Dr. Rabbani’s assistant emailed Mr. Lucas
stating that the Board is willing to have preliminary in-person interviews with Mr. Blank and Mr. Clemens on November 4 or 5.
On October 18, 2019, Mr. Clemens placed a call to Mr. Weiner to make
a further attempt at establishing a constructive dialogue, but was unable to reach Mr. Weiner and had to leave his contact information
with Mr. Weiner’s assistant. Mr. Weiner to date has not returned the call.
On November 14, 2019, Mr. Lucas again emailed Dr. Rabbani seeking
a dialogue between the businesspeople in an attempt to avoid a proxy fight.
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PROPOSAL 1: ELECTION OF DIRECTORS
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According to public information, the Board currently consists of
five directors divided into three classes. The terms of two Class II directors expire at the Annual Meeting and, based on the company’s
last proxy statement, we expect there will be two directors elected at the Annual Meeting. We are seeking your support at the Annual
Meeting to elect our Nominees, each of whom is independent of the Company. Even if all of the Nominees are elected, the Nominees
will represent a minority of the members of the Board, and therefore there can be no assurance that they can implement the actions
that they believe are necessary to enhance shareholder value.
If successful in our proxy solicitation, the Board will be composed
of our Nominees — Fabian Blank and Peter J. Clemens, IV—and incumbent directors Gregory M. Bortz, Dov Perlysky and
Elazar Rabbani. If elected, each of the Nominees will serve three-year terms until the 2022 annual meeting of shareholders and
until their successors have been duly elected and qualified. There is no assurance that any incumbent director will serve as a
director if one or more of the Nominees are elected to the Board.
Shareholders who return the BLUE proxy card will only be
able to vote for the Nominees listed on the card. You can only vote for the Company’s director nominees by signing and
returning the [white] proxy card provided by the Company, by requesting a legal proxy and casting your ballot in person by attending
the Annual Meeting or by voting via the Internet or toll-free telephone number provided in the Company’s Proxy Statement.
You should refer to the Company’s Proxy Statement for the names, background, qualifications and other information concerning
the Company’s director nominees.
Nominees:
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FABIAN BLANK
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Age; Address
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45; Roemerstrasse 6, 56864 Bad Bertrich, Germany
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Occupation
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Strategic Advisor and Private Investor
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Experience
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Mr. Fabian Blank is a senior management advisor and private investor, engaged with a wide range of companies in the healthcare sector. Since 2016, he has been providing capital and expertise on healthcare and digital health through Senthera Capital UG. He provides strategic advisory services for healthcare companies both in the broader healthcare industry (clients in healthcare services, insurance and pharma), as well as institutional investors (working with venture capital and private equity investors focused on healthcare). Through the same entity, Mr. Blank makes private capital investments in early stage digital health startups in targeted verticals (including cardiology, mental health, orthopedics or care). In parallel, Mr. Blank has founded and financed Vivira Health Lab, Inc., an SaaS digital health services startup, which he has been closely supporting on strategic matters, fundraising, and operational go-to-market topics. Since 2015, Mr. Blank has been an independent advisor to executives and management teams in the healthcare, healthTech and medical sectors, typically involved in either strategic discussions or buy-side transactions. Previously, Mr. Blank was the Chief Executive Officer and Co-Owner of Meduna Klinik Group, a family-owned healthcare services group focused on post-operative inpatient treatments in orthopedics and cardiology from 2013 to 2016, when he sold the group to a private equity buyer. Previously, Mr. Blank was a Partner at McKinsey & Company, Inc. where he focused on growth topics in both the technology/ telecoms and healthcare sectors. His healthcare sector clients included hospitals, medical centers, rehab clinics and other medical care providers. His total tenure at McKinsey lasted 13 years, from 2000 to 2013.
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Mr. Blank has been serving as Independent Non-Executive Director of Georgia Healthcare Group PLC, the largest, integrated healthcare services, pharmacy and medical insurance provider in Georgia (Eurasia), since 2018. He has been appointed as a member to each of the Clinical Quality and Safety Committee and the Nomination Committee. Mr. Fabian has also been serving as an advisory board member to GYANT.COM, Inc., a platform that uses artificial intelligence in tandem with medical experts to improve the diagnosis and treatment of non-urgent conditions, since 2019, and as the chairman of Recover Health Ltd., a startup developing a digital platform to aid in the recovery process of stroke survivors, since 2018.
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Mr. Blank received a “pre-diploma” degree in business management from Germany’s University of Trier in 1996, spent a year as an exchange student at the Boston University School of Management from 1996 to 1997, spent an MBA exchange semester at Spain’s Escuela Superior de Administración y Dirección de Empresas in 1999 and graduated with a graduate degree in business management from Germany’s Leipzig Graduate School of Management in 1999.
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Skills & Qualifications
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Mr. Blank’s qualifications to serve as a director include his extensive experience and expertise across all sectors of the healthcare industry, his business and investment background and his roles advising healthcare executives and boards around the world.
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PETER J. CLEMENS, IV
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Age; Address
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54; 2383 N Berry’s Chapel Rd, Franklin TN 37069
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Occupation
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[Retired]
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Experience
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Mr.
Peter J. Clemens, IV, is an executive with a variety of experiences in the healthcare sector. Mr. Clemens
previously served, from 2011 to 2015, as Executive Vice President and Chief Financial Officer of Surgical Care Affiliates, a large healthcare services company that partnered with physicians, health systems and health
plans to develop and operate approximately 200 surgical facilities around the country. During his time
at Surgical Care Affiliates, Mr. Clemens worked closely with the company’s executive team to evaluate,
finance and execute the company’s acquisition and business strategy, largely consisting of acquiring and
operating interests in surgery centers. He also prepared the company for an initial public offering
and took the company public in 2013. The company was later sold to Optum Health.
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Before
joining Surgical Care Affiliates, from 1995 to 2010 Mr. Clemens served in various roles at Caremark Rx, Inc., a Fortune 60
company before its merger with CVS in 2007. Mr. Clemens’ latest position was as Executive Vice President
and Chief Financial Officer at this company which went through a large transformation from a physician practice
company to a pharmacy services organization during his tenure. After the CVS merger, Mr. Clemens served as
the Executive Vice President and Chief Financial Officer of the Pharmacy Services Division of CVS Caremark, a $50
billion division of the Fortune 20 company and the largest integrated pharmacy healthcare provider in the United
States, with total revenues of ~$100 Billion. Mr. Clemens served as Executive Vice President and Chief
Financial Officer from June 2005 until 2010, Senior Vice President of Finance and Treasurer from 1998 until 2005 and
Vice President of Finance and Treasurer from 1995 until 1998 while working for these organizations. During
his time at CVS Health Corporation and Caremark RX, Mr. Clemens managed a finance group consisting of over 700
individuals and worked closely with the Chief Executive Officer and Chief Operating Officer and other operational
leaders to evaluate and execute business strategy for the companies. Prior to joining CVS Health
Corporation and Caremark Rx, Inc., Mr. Clemens worked in corporate banking at Wachovia Bank from 1991 until 1995 and
Regions Bank from 1987 until 1989.
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Mr. Clemens has served as a director of Vituro Health, a privately owned healthcare services company serving men with prostate cancer using High Intensity Focused Ultrasound (HIFU), a non-invasive procedure that ablates cancer, since 2016. Mr. Clemens also previously served as a director of DSI Renal, Inc., a privately owned healthcare services company in the dialysis space that was sold to Fresenius.
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Mr. Clemens received an M.B.A. from the Owen Graduate School of Management at Vanderbilt University, with concentrations in Finance and Accounting, in 1991. Mr. Clemens also received a B.S. in Mathematics from Samford University in 1987.
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Skills & Qualifications
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Mr. Clemens’ qualifications to serve as a director include his experience as an executive in the healthcare industry, his role as a senior advisor and strategist to healthcare professionals across a plethora of medical industries and his extensive background in and knowledge of healthcare finance.
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We urge shareholders to vote FOR each of the Nominees on the BLUE proxy card.
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None of the organizations or corporations referenced above is a parent,
subsidiary or other affiliate of the Company. We believe that, if elected, each of the Nominees will be considered an independent
director of the Company under (i) the Company’s Corporate Governance Guidelines as published on the Corporation’s website
as of the date of this Proxy Statement; (ii) Section 303A of the New York Stock Exchange’s Listed Company Rules (the “NYSE
Rules”); and (iii) paragraph (a)(1) of Item 407 of Regulation S-K. Under the NYSE Rules, however, a final determination as
to the independence of the Nominees will not be made until after their election and appointment to the Board.
We refer shareholders to the Company’s Proxy Statement for
the biographies and other important information regarding the members of the Board in the classes of directors that are not up
for election at the Annual Meeting.
Each
of the Nominees have entered into nominee agreements pursuant to which Harbert Discovery Fund, LP, and Harbert
Discovery Co-Investment I, Fund, LP, have agreed to pay the costs of soliciting proxies in connection with the Annual Meeting
and to defend and indemnify him against, and with respect to, any losses that may be incurred by him in the event he becomes
a party to litigation based on his nomination as a candidate for election to the Board and the solicitation of proxies in
support of his election. The Nominees will not receive any compensation from Harbert Discovery or its affiliates for their
services as directors of the Company if elected. If elected, the Nominees will be entitled to such compensation from the
Company as is consistent with the Company’s practices for services of non-employee directors.
Each of the
Nominees has agreed to being named as a Nominee in this proxy statement and has confirmed his willingness to serve on
the Board if elected. Harbert Discovery does not expect that any of the Nominees will be unable to stand for election, but,
in the event that a Nominee is unable to or for good cause will not serve, the shares of Common Stock represented by
the BLUE proxy card will be voted for a substitute candidate selected by
Harbert Discovery. If Harbert Discovery determines to add or substitute nominees, whether because the Company
expands the size of the Board or increases the number of directors at the Annual Meeting subsequent to the date of this Proxy
Statement or for any other reason, it will file an amended proxy statement and proxy card that, as applicable, identifies
the additional or substitute nominees, discloses that such nominees have consented to being named in the revised proxy
statement and to serve if elected and includes biographical and other information about such nominees required by the rules
of the SEC.
Vote Required.
According to the Company’s Amended and Restated Bylaws (the
“Bylaws”) and the Company’s proxy statement in connection with the 2018 annual meeting of shareholders, directors
shall be elected by a plurality of the votes cast, meaning the two director nominees who receive the highest number of shares voted
“FOR” their election will be elected to the Board. Abstentions will have no effect on the outcome of Proposal 1. Broker
non-votes will have no effect on Proposal 1 as brokers are not entitled to vote on this proposal in the absence of voting instructions
from the beneficial owner.
We urge you to sign and return our BLUE proxy card. If
you have already voted using the Company’s [white] proxy card, you have every right to change your vote by completing and
mailing the enclosed BLUE proxy card in the enclosed pre-paid envelope or by voting via Internet or by telephone
by following the instructions on the BLUE proxy card. Only the latest validly executed proxy that you submit will
be counted; any proxy may be revoked at any time prior to its exercise at the Annual Meeting by following the instructions under
“Can I change my vote or revoke my proxy?” If you have any questions or require any assistance with voting your shares,
please contact our proxy solicitor, Okapi Partners LLC, (“Okapi”), toll free at (888) 785-6707 or collect at (212)
297-0720.
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We
Recommend a Vote FOR each of the Nominees on the BLUE proxy card.
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PROPOSAL 2: ADVISORY VOTE ON THE COMPANY’S NAMED EXECUTIVE OFFICER COMPENSATION
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According to the Company’s Proxy Statement, the Company will
provide shareholders with the opportunity to cast a non-binding advisory vote on the compensation of the Company’s Named
Executive Officers (“NEOs”). While this vote is advisory in nature, the Company’s Proxy Statement states that
the Board “value[s] the opinion of our stockholders 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.”
According to the Company’s Proxy Statement, the Company will
request a non-binding, advisory vote on a resolution substantially in the following form:
“RESOLVED,
that the Company’s stockholders 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 2019 Annual Meeting of Stockholders pursuant to
the compensation disclosure rules of the Securities and Exchange Commission, including the Compensation Discussion and Analysis,
the Summary Compensation table and the related compensation tables and narrative discussion.”
We recommend voting [for] [against] Proposal 2.
We encourage all shareholders to review the Company’s proxy
disclosures in the Company’s Proxy Statement in detail.
According to the Company’s Proxy Statement, the shareholder
vote on this Proposal 2 is advisory, which means that it is not binding on the Company, the Board or the Compensation Committee
of the Board.
Vote Required.
According to the Company’s Proxy Statement, the approval of
Proposal 2 requires the affirmative vote of a majority of the votes cast at the Annual Meeting. Abstentions will be treated as
shares that are present and entitled to vote and therefore will count as votes against Proposal 2. Broker non-votes will have no
effect on Proposal 2 as brokers are not entitled to vote on this proposal in the absence of voting instructions from the beneficial
owner.
|
We Recommend a Vote [FOR]
[AGAINST] Proposal 2 on the BLUE proxy card.
|
|
PROPOSAL 3: RATIFICATION OF THE COMPANY’S SELECTION OF INDEPENDENT PUBLIC ACCOUNTING FIRM
|
According to the Company’s Proxy Statement, the Board has determined
that it is desirable to request the approval of the appointment of its independent registered public accounting firm by the shareholders
of the Company. The Company’s Proxy Statement indicates that the Audit Committee of the Board has appointed EisnerAmper
LLP (“EisnerAmper”) as the Company’s independent registered public accounting firm to audit the Company’s
financial statements for the fiscal year ending July 31, 2020. EisnerAmper has audited
the financial statements of the Company since 2013.
The Company’s Proxy Statement states that if shareholders do
not ratify the appointment, the Audit Committee will consider the adverse vote as an indication that it should consider selecting
another independent registered public accounting firm for the following fiscal year but it 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.
Vote Required.
According to the Company’s Proxy Statement, the approval of
Proposal 3 requires the affirmative vote of a majority of votes cast at the Annual Meeting. Abstentions will be treated as shares
that are present and entitled to vote and therefore will count as votes against Proposal 3. Broker non-votes will have no effect
on Proposal 3 as brokers are not entitled to vote on this proposal in the absence of voting instructions from the beneficial owner.
|
We Recommend a Vote FOR Proposal 3
on the BLUE proxy card.
|
|
QUESTIONS AND ANSWERS ABOUT THE PROXY MATERIALS AND THE ANNUAL MEETING
|
Who is entitled to vote?
Only holders of Common Stock at the close of business on the
Record Date, [December 3, 2019], are entitled to notice of and to vote at the Annual Meeting. Shareholders who sold shares of
Common Stock before the Record Date (or acquire them without voting rights after the Record Date) may not vote such shares of
Common Stock. Shareholders of record on the Record Date will retain their voting rights in connection with the
Annual Meeting even if they sell such shares of Common Stock after the Record Date (unless they also transfer their voting
rights). According to the Company’s Proxy Statement, the only outstanding class of securities of the Company
entitled to vote at the Annual Meeting is the Common Stock.
How do I vote my shares?
Shares held in record name. If your shares of Common Stock
are registered in your own name, please vote today by signing, dating and returning the enclosed BLUE proxy card
in the postage-paid envelope provided. Execution and delivery of a proxy by a record holder of shares of Common Stock will be presumed
to be a proxy with respect to all shares held by such record holder unless the proxy specifies otherwise.
Shares beneficially owned or held in “street”
name. If you hold your shares of Common Stock in “street” name with a broker, bank, dealer, trust company or
other nominee, only that nominee can exercise the right to vote with respect to the shares of Common Stock that you
beneficially own through such nominee and only upon receipt of your specific instructions. Accordingly, it is critical
that you promptly give instructions to your broker, bank, dealer, trust company or other nominee to vote in favor of the
election of the Nominees. Please follow the instructions to vote provided on the enclosed BLUE proxy card.
If your broker, bank, dealer, trust company or other nominee provides for proxy instructions to be delivered to them by
telephone or Internet, instructions will be included on the enclosed BLUE proxy card. We urge you to confirm in
writing your instructions to the person responsible for your account and provide a copy of those instructions by emailing
them to info@okapipartners.com or mailing them to Harbert Discovery, c/o Okapi Partners LLC, 1212 Avenue of the Americas, New York,
New York 10036, so that we will be aware of all instructions given and can attempt to ensure that such instructions are
followed.
Note: Shares of Common Stock represented by properly executed
BLUE proxy cards will be voted at the Annual Meeting as marked and, in the absence of specific instructions, “FOR”
each of the Nominees listed in Proposal 1, [“FOR”] [“AGAINST”] Proposal 2 and “FOR”
Proposal 3 set forth in this Proxy Statement.
How should I vote on each proposal?
Harbert Discovery recommends that you vote your shares
on the BLUE proxy card as follows:
“FOR” each of the Nominees standing
for election to the Board named in this Proxy Statement (Proposal 1);
[“FOR”] [“AGAINST”]
the advisory proposal to approve the compensation of the Company’s named executive officers (Proposal 2); and
“FOR” the ratification of the
Company’s selection of independent registered public accounting firm (Proposal 3).
How many shares must be present
to hold the Annual Meeting?
Under the Bylaws, the holders of a majority of the votes of the
shares of stock of the Corporation issued and outstanding and entitled to vote must be present in person or by proxy to constitute
a quorum for the transaction of any business at the Annual Meeting. According to the Company’s Proxy Statement, abstentions
and broker non-votes will be counted for purposes of determining whether a quorum is present. For more information on broker
non-votes, see “What are “broker non-votes” and what effect do they have on the proposals?” below.
What vote is needed to approve each
proposal?
Proposal 1 – Election of Directors. According
to the Bylaws and the Company’s Proxy Statement in connection with the 2018 annual meeting of shareholders, directors
shall be elected by a plurality of the votes cast, meaning the two director nominees
who receive the highest number of shares voted “FOR” their election will be elected to the Board. Abstentions
will have no effect on the outcome of Proposal 1. Broker non-votes will have no effect on Proposal 1 as brokers are not
entitled to vote on this proposal in the absence of voting instructions from the beneficial owner.
THE ONLY WAY TO SUPPORT ALL OF
THE HARBERT DISCOVERY NOMINEES IS TO SUBMIT YOUR VOTING INSTRUCTIONS “FOR” EACH OF THE NOMINEES ON THE BLUE
PROXY CARD. PLEASE DO NOT SIGN OR RETURN A [WHITE] PROXY CARD FROM THE COMPANY, EVEN IF YOU INSTRUCT TO “ABSTAIN”
ON THEIR DIRECTOR NOMINEES. DOING SO WILL REVOKE ANY PREVIOUS VOTING INSTRUCTIONS YOU PROVIDED ON THE BLUE PROXY
CARD.
Proposal 2. According to the
Company’s Proxy Statement, the approval of Proposal 2 requires the affirmative vote of a majority of the votes cast at the
Annual Meeting. Abstentions will be treated as shares that are present and entitled to vote and therefore will count as votes against
Proposal 2. Broker non-votes will have no effect on Proposal 2 as brokers are not entitled to vote on this proposal in the absence
of voting instructions from the beneficial owner.
Proposal 3. According to the
Company’s Proxy Statement, the approval of Proposal 3 requires the affirmative vote of a majority of votes cast at the Annual
Meeting. Abstentions will be treated as shares that are present and entitled to vote and therefore will count as votes against
Proposal 2. Broker non-votes will have no effect on Proposal 3 as brokers are not entitled to vote on this proposal in the absence
of voting instructions from the beneficial owner.
What are “broker non-votes”
and what effect do they have on the proposals?
Generally, broker non-votes occur when shares held by a broker
bank, or other nominee in “street name” for a beneficial owner are not voted with respect to a particular
proposal because the broker, bank or other nominee has not received voting instructions from the beneficial owner and lacks
discretionary voting power to vote those shares with respect to that particular proposal. If your shares are held in the name
of a brokerage firm, and the brokerage firm has not received voting instructions from the beneficial owner of the shares with
respect to that proposal, the brokerage firm cannot vote the shares on that proposal unless it is a “routine”
matter. Under the rules and interpretations of the New York Stock Exchange, there are no “routine” proposals in a
contested proxy solicitation. Because Harbert Discovery has initiated a contested proxy solicitation, there will be no
“routine” matters at the Annual Meeting.
Broker non-votes, if any, with respect to the proposals set forth
in this Proxy Statement will not count as votes cast, present and entitled to vote and therefore will not be counted in determining
the outcome of any of Proposals 1, 2 and 3.
What should I do if I receive a
proxy card from the Company?
You may receive proxy solicitation materials from Enzo, including
an opposition proxy statement and [white] proxy card. We are not responsible for the accuracy of any information contained in any
proxy solicitation materials used by the Company or any other statements that it may otherwise make.
We recommend that you disregard any proxy card or
solicitation materials that may be sent to you by the Company. Voting “WITHHOLD” for any of the Company’s
nominees on its proxy card or voting “ABSTAIN” is not the same as voting for the Nominees
because a vote withheld or abstained for any of the Company’s nominees will not count as a vote “FOR” the
Harbert Discovery Nominees. If you have already voted using the Company’s [white] proxy card, you have every
right to change your vote by completing and mailing the enclosed BLUE proxy card in the enclosed pre-paid envelope or
by voting via Internet or by telephone by following the instructions on the BLUE proxy card. Only the latest validly
executed proxy that you submit will be counted; any proxy may be revoked at any time prior to its exercise at the Annual
Meeting by following the instructions below under “Can I change my vote or revoke my proxy?” If you have any
questions or require any assistance with voting your shares, please contact our proxy solicitor, Okapi Partners LLC, toll
free at (888) 785-6707 or collect at (212) 297-0720.
Can I change my vote or revoke my
proxy?
If you are the shareholder of record, you may change your proxy
instructions or revoke your proxy at any time before your proxy is voted at the Annual Meeting. Proxies may be revoked by any of
the following actions:
|
|
·
|
signing, dating and returning the enclosed BLUE
proxy card (the latest dated proxy is the only one that counts);
|
|
|
·
|
delivering a written revocation or a later dated
proxy for the Annual Meeting to Harbert Discovery, c/o Okapi Partners LLC, 1212 Avenue of the Americas, New York, New York 10036 or to
the secretary of the Company; or
|
|
|
·
|
attending the Annual Meeting and voting in person
(although attendance at the Annual Meeting will not, by itself, revoke a proxy).
|
If your shares are held in a brokerage account by a broker, bank
or other nominee, you should follow the instructions provided by your broker, bank or other nominee. If you attend the Annual Meeting
and you beneficially own shares of Common Stock but are not the record owner, your mere attendance at the Annual Meeting WILL NOT
be sufficient to revoke your prior given proxy card. You must have written authority from the record owner to vote your shares
held in its name at the meeting. Contact Okapi toll free at (888) 785-6707 or collect at (212) 297-0720.
IF YOU HAVE ALREADY VOTED USING THE COMPANY’S [WHITE]
PROXY CARD, WE URGE YOU TO REVOKE IT BY FOLLOWING THE INSTRUCTIONS ABOVE. Although a revocation is effective if delivered
to the Company, we request that either the original or a copy of any revocation be mailed to Harbert Discovery, c/o Okapi Partners
LLC, 1212 Avenue of the Americas, New York, New York 10036, so that we will be aware of all revocations.
Who is making this Proxy Solicitation
and who is paying for it?
The solicitation of proxies pursuant to
this proxy solicitation is being made by Harbert Discovery and the Nominees. Proxies may be solicited by mail, facsimile, telephone, telegraph,
Internet, in person and by advertisements. Harbert Discovery will solicit proxies from individuals, brokers, banks, bank nominees and other
institutional holders. Harbert Discovery has requested banks, brokerage houses and other custodians, nominees and fiduciaries to forward
all solicitation materials to the beneficial owners of the shares of Common Stock they hold of record. Harbert Discovery will reimburse these
record holders for their reasonable out-of-pocket expenses in so doing. It is anticipated that certain regular employees of Harbert Discovery
will also participate in the solicitation of proxies in support of the Nominees. Such employees will receive no additional consideration
if they assist in the solicitation of proxies.
Harbert Discovery has retained Okapi to provide solicitation and advisory services in connection with this solicitation.
Okapi will be paid a fee not to exceed $75,000 based upon
the campaign services provided. In addition, Harbert Discovery will reimburse Okapi for its reasonable out-of-pocket expenses and will indemnify
Okapi against certain liabilities and expenses, including certain liabilities under the federal securities laws. Okapi will solicit
proxies from individuals, brokers, banks, bank nominees and other institutional holders. It is anticipated that Okapi will employ
up to 45 persons to solicit the Company’s shareholders as part of this solicitation. Okapi does not believe that any of its
directors, officers, employees, affiliates or controlling persons, if any, is a “participant” in this proxy solicitation.
The
entire expense of soliciting proxies is being borne by Harbert Discovery. Costs of this proxy solicitation are currently estimated to be
approximately $1,500,000. We estimate that through the date hereof, Harbert Discovery’s expenses in connection with the proxy solicitation
are approximately $500,000. If successful, Harbert Discovery may seek reimbursement of these costs from the Company. In the event that
it decides to seek reimbursement of its expenses, Harbert Discovery does not intend to submit the matter to a vote of the Company’s
shareholders. The Board, which will consist of two of the Nominees, if both are elected, and three of the incumbent Company directors,
would be required to evaluate the requested reimbursement consistent with their fiduciary duties to the Company and its shareholders.
Costs related to the solicitation of proxies include expenditures for attorneys, public relations and other advisors, solicitors,
printing, advertising, postage, transportation, litigation and other costs incidental to the solicitation.
What is Householding of Proxy Materials?
The SEC has adopted rules that permit companies
and intermediaries (such as brokers and banks) to satisfy the delivery requirements for proxy statements and annual reports with
respect to two or more shareholders sharing the same address by delivering a single proxy statement addressed to those shareholders.
Some banks and brokers with account holders who are shareholders of the company may be householding our proxy materials.
A
single copy of this Proxy Statement (and of the Company’s Proxy Statement and annual report) will be delivered to multiple
shareholders sharing an address unless contrary instructions have been received from one or more of the affected shareholders.
Once you have received notice from your bank or broker that it will be householding communications to your address, householding
will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate
in householding and would prefer to receive a separate proxy statement and annual report, please notify your bank or broker and
direct your request to the Secretary of the Company at 527 Madison Avenue, New York, New York 10022, telephone: [Ÿ].
Shareholders who currently receive multiple copies of this proxy statement at their address and would like to request householding
of their communications should contact their bank or broker.
Where can I find additional information
concerning Enzo?
Pursuant to Rule 14a-5(c) promulgated under the Exchange Act, we
have omitted from this proxy statement certain disclosure required by applicable law to be included in the Company’s Proxy
Statement in connection with the Annual Meeting. Such disclosure includes information regarding securities of the Company beneficially
owned by the Company’s directors, nominees and management; certain shareholders’ beneficial ownership of more than
5% of the Company’s voting securities; information concerning the Company’s directors who are not up for election at
the Annual Meeting; information concerning executive compensation; and information concerning the procedures for submitting shareholder
proposals and director nominations intended for consideration at the 2020 annual meeting of shareholders and for consideration
for inclusion in the proxy materials for that meeting. If the Company does not distribute the Company’s Proxy Statement to
shareholders at least ten days prior to the Annual Meeting, we will distribute to the shareholders a supplement to this proxy statement
containing such disclosures at least ten days prior to the Annual Meeting. We take no responsibility for the accuracy or completeness
of information contained in the Company’s Proxy Statement. Except as otherwise noted herein, the information in this proxy
statement concerning the Company has been taken from or is based upon documents and records on file with the SEC and other publicly
available information.
[This proxy statement and all other solicitation materials in connection
with this proxy solicitation will be available on the internet, free of charge, at [ ]].
We urge you to carefully consider the information contained in this
proxy statement and then support our efforts by signing, dating and returning the enclosed BLUE proxy card today.
Thank you for your support,
|
|
|
Harbert Discovery Fund, LP
Harbert Discovery Fund GP, LLC
|
|
Harbert Discovery Co-Investment Fund
I, LP
Harbert Discovery Co-Investment Fund
I GP, LLC
Harbert Fund Advisors, Inc.
Harbert Management Corporation
|
|
|
|
|
|
Jack Bryant
Kenan Lucas
Raymond Harbert
Fabian Blank
Peter J. Clemens, IV
|
[ ], 2019
ANNEX I: INFORMATION
ON THE PARTICIPANTS
This proxy solicitation is being made by Harbert Discovery
Fund, LP (“Harbert Discovery”), Harbert Discovery Fund GP, LLC (“Harbert Discovery GP”), Harbert
Discovery Co-Investment Fund I, LP (“Harbert Discovery Co-Investment” and together with Harbert Discovery, the
“Discovery Funds”), Harbert Discovery Co-Investment Fund I GP, LLC (“Harbert Discovery Co-Investment
GP”), Harbert Fund Advisors, Inc. (“HFA”), Harbert Management Corporation (“HMC”), Jack Bryant
(“Mr. Bryant”), Raymond Harbert (“Mr. Harbert”) and Kenan Lucas (“Mr. Lucas” and together
with Harbert Discovery, Harbert Discovery GP, Harbert Discovery Co-Investment, Harbert Discovery Co-Investment GP, HFA, HMC
and Messrs. Bryant and Harbert, the “Harbert Discovery Parties”) and the Nominees.
As of the close of business on [ ], 2019, the Participants may be
deemed to beneficially own, in the aggregate, 5,630,961 shares of Common Stock, representing approximately [11.8]% of the Company’s
outstanding shares of Common Stock. The percentages contained herein are based upon [47,556,807] shares of Common Stock outstanding
as of the Record Date, as reported in Company’s Proxy Statement filed with the SEC on [ ], 2019.
Of the 5,630,961 shares of Common Stock
beneficially owned in the aggregate by the Participants: (a) 1,915,027 shares of Common Stock are held by Harbert Discovery,
including 1,000 shares of Common Stock held in record name; (b) 1,915,027 shares of Common Stock may be deemed to be
beneficially owned by Harbert Discovery GP by virtue of it being the general partner of Harbert Discovery; (c) 3,705,654
shares of Common Stock are held by Harbert Discovery Co-Investment, including 1,000 shares of Common Stock held in record
name; (d) 3,705,654 shares of Common Stock may be deemed to be beneficially owned by Harbert Discovery Co-Investment GP by
virtue of it being the general partner of Harbert Discovery Co-Investment; (e) 5,620,681 shares of Common Stock (including
the 2,000 shares of Common Stock held by the Discovery Funds in record name) may be deemed to be beneficially owned by HFA,
HMC, Harbert Discovery GP and Harbert Discovery Co-Investment GP by virtue of their relationships to the Discovery Funds and
certain affiliated funds and entities; (f) 5,620,681 shares of Common Stock may be deemed to be beneficially owned by each of
Messrs. Bryant, Harbert and Lucas by virtue of their control of each of Harbert Discovery GP and Harbert Discovery
Co-Investment GP, the general partners of the Discovery Funds; and (g) 10,280 shares of Common Stock may be deemed to be
beneficially owned by Mr. Blank.
Each of the Harbert Discovery Parties expressly disclaims
beneficial ownership of the shares of Common Stock held by Mr. Blank and Mr. Blank expressly disclaims beneficial ownership of
the shares of Common Stock held by each of the Harbert Discovery Parties.
The principal address of Harbert Discovery is 2100 Third Avenue North, Suite
600, Birmingham, Alabama 35203. The principal address of Mr. Blank is Roemerstrasse 6, 56864 Bad Bertrich, Germany.
The principal business
of (i) each of Harbert Discovery and Harbert Discovery Co-Investment is to serve as a private investment fund, (ii) Harbert Discovery
GP, Harbert Discovery Co-Investment GP, HMC, HFA and Messrs. Lucas, Bryant, and Harbert is investment management and (iii) Mr.
Blank is private investing and investment management advising.
The principal
business addresses, along with the principal occupation, of each of the Nominees is disclosed in the section titled “PROPOSAL
1: ELECTION OF DIRECTORS” beginning on page 5.
Except as set forth in this Proxy Statement (including the Annexes),
(i) during the past ten years, no Participant has been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors); (ii) no Participant in this proxy solicitation directly or indirectly beneficially owns any securities of the Company;
(iii) no Participant owns any securities of the Company which are owned of record but not beneficially; (iv) no Participant has
purchased or sold any securities of the Company during the past two years; (v) no part of the purchase price or market value of
the securities of the Company owned by any Participant is represented by funds borrowed or otherwise obtained for the purpose of
acquiring or holding such securities; (vi) no Participant is, or within the past year was, a party to any contract, arrangements
or understandings 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; (vii) no associate of any Participant owns beneficially, directly or indirectly, any securities
of the Company; (viii) no Participant owns beneficially, directly or indirectly, any securities of any parent or subsidiary of
the Company; (ix) no Participant or any of his, her or its associates was a party to any transaction, or series of similar transactions,
since
the
beginning of the Company’s last fiscal year, or is a party to any currently proposed transaction, or series of similar transactions,
to which the Company or any of its subsidiaries was or is to be a party, in which the amount involved exceeds $120,000; (x) no
Participant or any of his, her or its 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 (xi) no person, including any of the Participants, who is a party to an arrangement or understanding
pursuant to which the Nominees are proposed to be elected, has a substantial interest, direct or indirect, by security holdings
or otherwise in any matter to be acted on as set forth in this Proxy Statement. There are no material proceedings to which any
Participant or any of his, her or its associates is a party adverse to the Company or any of its subsidiaries or has a material
interest adverse to the Company or any of its subsidiaries. With respect to each of the Nominees, except as set forth in this
Proxy Statement (including the Annexes), none of the events enumerated in Item 401(f)(1)-(8) of Regulation S-K of the Exchange
Act occurred during the past ten years. Neither the Nominees nor any associate of a Nominee has served as a director or named
executive officer of the Company at any point during the last three fiscal years of the Company.
Transactions by the Participants
with respect to the Company’s securities
The following tables set forth all transactions effected during the
past two years by the Participants with respect to securities of the Company. The shares of Common Stock reported herein are held
in either cash accounts or margin accounts in the ordinary course of business. Unless otherwise indicated, all transactions were
effected on the open market.
Harbert Discovery Fund, LP
|
Date
|
Common
Stock
Acquired
(Disposed)
|
|
Date
|
Common Stock Acquired
(Disposed)
|
|
Date
|
Common Stock Acquired
(Disposed)
|
|
12/4/2018
|
58,349
|
|
12/14/2018
|
100,000
|
|
12/26/2018
|
115,671
|
|
12/6/2018
|
50,412
|
|
12/17/2018
|
63,876
|
|
12/27/2018
|
28,450
|
|
12/7/2018
|
92,817
|
|
12/18/2018
|
183,223
|
|
12/28/2018
|
50,000
|
|
12/10/2018
|
13,780
|
|
12/19/2018
|
152,100
|
|
12/31/2018
|
52,393
|
|
12/11/2018
|
118,745
|
|
12/20/2018
|
90,917
|
|
7/23/2019
|
277,700
|
|
12/12/2018
|
97,579
|
|
12/21/2018
|
92,800
|
|
8/16/2019
|
22,800
|
|
12/13/2018
|
178,715
|
|
12/24/2018
|
65,000
|
|
8/20/2019
|
9,700
|
Harbert Discovery Co-Investment Fund I, LP
|
Date
|
Common Stock Acquired
(Disposed)
|
|
Date
|
Common Stock Acquired
(Disposed)
|
|
Date
|
Common Stock Acquired
(Disposed)
|
|
3/19/2019
|
88,516
|
|
4/11/2019
|
58,500
|
|
5/7/2019
|
68,937
|
|
3/20/2019
|
37,888
|
|
4/12/2019
|
24,190
|
|
5/8/2019
|
6,200
|
|
3/21/2019
|
24,894
|
|
4/15/2019
|
115,800
|
|
5/9/2019
|
13,690
|
|
3/22/2019
|
83,525
|
|
4/17/2019
|
53,800
|
|
5/10/2019
|
5,190
|
|
3/25/2019
|
64,538
|
|
4/18/2019
|
77,955
|
|
5/13/2019
|
40,204
|
|
3/26/2019
|
150,000
|
|
4/22/2019
|
30,258
|
|
5/14/2019
|
25,149
|
|
3/27/2019
|
203,300
|
|
4/23/2019
|
65,052
|
|
5/15/2019
|
22,009
|
|
3/28/2019
|
13,269
|
|
4/24/2019
|
22,057
|
|
5/16/2019
|
335,046
|
|
3/29/2019
|
762,711
|
|
4/25/2019
|
28,622
|
|
5/17/2019
|
16,886
|
|
4/1/2019
|
117,253
|
|
4/26/2019
|
77,886
|
|
5/20/2019
|
414,132
|
|
4/2/2019
|
42,112
|
|
4/29/2019
|
24,871
|
|
5/28/2019
|
63,677
|
|
4/3/2019
|
35,310
|
|
4/30/2019
|
56,112
|
|
5/29/2019
|
19,050
|
|
4/4/2019
|
8,859
|
|
5/1/2019
|
12,800
|
|
5/30/2019
|
19,391
|
|
4/8/2019
|
30,599
|
|
5/2/2019
|
36,122
|
|
7/22/2019
|
9,644
|
|
4/8/2019
|
102,600
|
|
5/3/2019
|
14,526
|
|
7/23/2019
|
131,500
|
|
4/10/2019
|
38,051
|
|
5/6/2019
|
12,973
|
|
Mr. Blank
|
Date
|
Common Stock Acquired
(Disposed)
|
|
|
|
|
|
|
|
1/18/2019
|
2,780
|
|
|
|
|
|
|
|
2/5/2019
|
2,500
|
|
|
|
|
|
|
|
2/12/2019
|
2,500
|
|
|
|
|
|
|
|
3/12/2019
|
2,500
|
|
|
|
|
|
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IMPORTANT
Tell your Board what you think! YOUR VOTE IS
VERY IMPORTANT, no matter how many or how few shares you own. Please give us your proxy “FOR” each of the Nominees
by taking three steps:
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SIGNING the enclosed BLUE
proxy card,
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DATING the enclosed BLUE
proxy card, and
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MAILING the enclosed BLUE proxy card TODAY in the envelope provided (no postage is
required if mailed in the United States).
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If any of your shares are held in the name
of a broker, bank, bank nominee or other institution, only it can vote your shares and only upon receipt of your specific instructions.
Depending upon your broker or custodian, you may be able to vote either by toll-free telephone or by the Internet. You may also
vote by signing, dating and returning the enclosed BLUE voting form in the postage-paid envelope provided, and to
ensure that your shares are voted, you should also contact the person responsible for your account and give instructions for a
BLUE proxy card to be issued representing your shares.
After signing the enclosed BLUE
proxy card, DO NOT SIGN OR RETURN ENZOS’ [WHITE] PROXY CARD UNLESS YOU INTEND TO CHANGE YOUR VOTE, because only your
latest dated proxy card will be counted.
If you have previously signed and returned a
[white] proxy card to Enzo, you have every right to change your vote. Only your latest dated proxy card will count. You may revoke
any proxy card already sent to Enzo by signing, dating and mailing the enclosed BLUE proxy card in the postage-paid
envelope provided or by voting by telephone or Internet. Any proxy may be revoked at any time prior to the 2019 Annual Meeting
by delivering a written notice of revocation or a later dated proxy for the 2019 Annual Meeting to Okapi or by voting in person
at the Annual Meeting. Attendance at the Annual Meeting will not in and of itself constitute a revocation.
If you have any questions concerning this
proxy statement, would like to request additional copies of this proxy statement or need help voting your shares, please contact
our proxy solicitor:
Okapi Partners LLC
1212 Avenue of the Americas
New York, New York 10036
Banks and Brokers Call Collect: (212) 297-0720
All Others Call Toll-Free: (888) 785-6707
[Form of BLUE Proxy Card]
PRELIMINARY COPY SUBJECT TO COMPLETION
ENZO BIOCHEM, INC.
Proxy Card for 2019 Annual Meeting of Shareholders
Scheduled for [ ] (the “Annual Meeting”):
THIS PROXY SOLICITATION IS BEING MADE BY HARBERT DISCOVERY FUND, LP AND HARBERT DISCOVERY CO-INVESTMENT FUND I,
LP AND CERTAIN OF THEIR AFFILIATES (“HARBERT DISCOVERY”, “WE” OR “US”) AND THE INDIVIDUALS
NAMED IN PROPOSAL 1 (THE “NOMINEES”)
THIS BOARD OF DIRECTORS OF ENZO BIOCHEM, INC.
IS NOT SOLICITING THIS PROXY
The undersigned appoints Kenan Lucas, Kevin McGovern, Bruce H.
Goldfarb and Eleazer Klein, and each of them, attorneys and agents with full power of substitution to vote all shares of
common stock of Enzo Biochem, Inc., a New York corporation (the “Company”), that the undersigned would be
entitled to vote at the Annual Meeting of shareholders of the Company scheduled to be held on [ ] at [ ], including at any
adjournments or postponements thereof, with all powers that the undersigned would possess if personally present, upon and in
respect of the instructions indicated herein, with discretionary authority as to any and all other matters that may properly
come before the meeting or any adjournment, postponement or substitution thereof that are unknown to Harbert Discovery a
reasonable time before this solicitation.
The undersigned hereby revokes any other proxy or proxies heretofore
given to vote or act with respect to said shares, and hereby ratifies and confirms all action the herein named attorneys and proxies,
their substitutes, or any of them may lawfully take by virtue hereof. This proxy will be valid until the sooner of one year from
the date indicated on the reverse side and the completion of the Annual Meeting (including any adjournments or postponements thereof).
If this proxy is signed and returned, it will be voted
in accordance with your instructions. If you do not specify how the proxy should be voted, this proxy will be
voted “FOR” each of the nominees listed in Proposal 1, [“FOR”] [“AGAINST”] Proposal 2 and
“FOR” Proposal 3. None of the matters currently intended to be acted upon pursuant to this proxy are
conditioned on the approval of other matters. No assurance can be given that the Company’s nominees will serve if
elected with any of the Nominees.
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INSTRUCTIONS:
OUR VOTING RECOMMENDATIONS ARE INDICATED BY HIGHLIGHTED TEXT.
OVER THE BOXES (FILL IN VOTING BOXES “©“
IN BLACK OR BLUE INK)
We recommend that you vote “FOR EACH”
of the Nominees below:
Proposal 1 – Election of the
two individuals nominated by Harbert Discovery to serve as directors.
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Nominees:
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FOR.
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WITHHOLD
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a. Fabian Blank
b. Peter J. Clemens, IV
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We recommend that you
vote [“FOR”] [“AGAINST”] Proposal 2:
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FOR
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AGAINST
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ABSTAIN
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Proposal 2 – Company proposal to vote to approve, by a nonbinding advisory vote, the compensation of the Company’s Named Executive Officers.
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We recommend that you
vote “FOR” Proposal 3:
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FOR
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AGAINST
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ABSTAIN
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Proposal 3 – Company proposal 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, 2020.
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IN ORDER FOR YOUR PROXY TO BE VALID, IT MUST BE DATED.
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Signature (Capacity)
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Date
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Signature (Joint Owner) (Capacity/Title)
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Date
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NOTE: Please sign exactly as your name(s) appear(s) on stock certificates or on the label affixed hereto. When signing as attorney, executor, administrator or other fiduciary, please give full title as such. Joint owners must each sign personally. ALL HOLDERS MUST SIGN. If a corporation or partnership, please sign in full corporate or partnership name by an authorized officer and give full title as such.
PLEASE SIGN, DATE AND PROMPTLY RETURN THIS
PROXY IN THE ENCLOSED RETURN ENVELOPE THAT IS POSTAGE PREPAID IF MAILED IN THE UNITED STATES.
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