Exhibit 10.1
SUBSCRIPTION AGREEMENT
Enzo Biochem, Inc.
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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 certain
investors of up to an aggregate of 3,285,715 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 $14.00 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 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 determined by such Investor as follows (CHECK ONE):
[____] A. Delivery by electronic book-entry at The Depository Trust Company
("DTC"), registered in the Investor's name and address as set forth
below, and released by American Stock Transfer & Trust Company, the
Company's transfer agent (the "TRANSFER AGENT"), to the
Investor at the Closing. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE
EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE
INVESTOR SHALL:
(I) DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A
DEPOSIT/WITHDRAWAL AT CUSTODIAN ("DWAC") INSTRUCTING THE TRANSFER
AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
(II) REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO
THE FOLLOWING ACCOUNT:
THE CITIBANK PRIVATE BANK
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA # ▇▇▇-▇▇▇-▇▇▇
Account Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, escrow
agent for the account of Enzo Biochem, Inc.
Account Number: 9970183451
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[____] B. Delivery versus payment ("DVP") through DTC (i.e., the Company shall
deliver Shares registered in the Investor's name and address as set
forth below and released by 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) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR
SETTLEMENT BY WAY OF DWAC OR 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
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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 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:_________________________________
Purchase Price Per Share: $_______________________
Aggregate Purchase Price: $_______________________
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: December __, 2006
_______________________________________
INVESTOR
By:____________________________________
Print Name:____________________________
Title:_________________________________
Address:_______________________________
_______________________________________
Agreed and Accepted
this ___ day of December, 2006:
ENZO BIOCHEM, INC.
By:_________________________________
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 The Company proposes to enter into substantially this
same form of Subscription Agreement with certain other investors (the "OTHER
INVESTORS") and expects to complete sales of Shares to them. The Investor and
the Other Investors are hereinafter sometimes collectively referred to as the
"INVESTORS," and this Agreement and the Subscription Agreements executed by the
Other Investors are hereinafter sometimes collectively referred to as the
"AGREEMENTS."
2.3 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.
2.4 The Company has entered into a Placement Agent
Agreement, dated December 14, 2006 (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
Investors 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 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.
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(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 pursuant to the terms thereof or
(b) determined that the conditions to the closing in the Placement Agreement
have not been satisfied. The Investor's obligations are expressly not
conditioned on the purchase by any or all of the Other Investors of the Shares
that they have agreed to purchase from the Company.
3.3 DELIVERY OF FUNDS.
(a) DELIVERY BY ELECTRONIC BOOK-ENTRY AT THE
DEPOSITORY TRUST COMPANY. If the Investor elects to settle the Shares purchased
by such Investor through delivery by electronic book-entry at DTC, NO LATER THAN
ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND
THE COMPANY, the Investor shall remit by wire transfer the amount of funds equal
to the aggregate purchase price for the Shares being purchased by the Investor
to the following account designated by the Company and the Placement Agent
pursuant to the terms of that certain Escrow Agreement (the "ESCROW AGREEMENT")
dated as of December 14, 2006, by and among the Company, the Placement Agent and
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP (the "ESCROW AGENT"):
THE CITIBANK PRIVATE BANK
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ABA # ▇▇▇-▇▇▇-▇▇▇
Account Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, escrow
agent for the account of Enzo Biochem, Inc.
Account Number: 9970183451
Such funds shall be held in escrow until the Closing
and delivered by the Escrow Agent on behalf of the Investors to the Company upon
the satisfaction, in the sole judgment of the Placement Agent, of the conditions
set forth in Section 3.2(b) hereof. The Placement Agent shall have no rights in
or to any of the escrowed funds, unless the Placement Agent and the Escrow Agent
are notified in writing by the Company in connection with the Closing that a
portion of the escrowed funds shall be applied to the Placement Fee. The Company
and the Investor agree to indemnify and hold the Escrow Agent harmless from and
against any and all losses, costs, damages, expenses and claims (including,
without limitation, court costs and reasonable attorneys fees) ("LOSSES")
arising under this SECTION 3.3 or otherwise with respect to the funds held in
escrow pursuant hereto or arising under the Escrow Agreement, unless it is
finally determined that such Losses resulted directly from the willful
misconduct or gross negligence of the Escrow Agent. Anything in this Agreement
to the contrary notwithstanding, in no event shall the Escrow Agent be liable
for any special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Escrow Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
Investor shall also furnish to the Placement Agent a
completed W-9 form (or, in the case of an Investor who is not a United States
citizen or resident, a W-8 form).
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Investor acknowledges that the Escrow Agent acts as
counsel to the Placement Agent, and shall have the right to continue to
represent the Placement Agent, in any action, proceeding, claim, litigation,
dispute, arbitration or negotiation in connection with the Offering, and
Investor hereby consents thereto and waives any objection to the continued
representation of the Placement Agent by the Escrow Agent in connection
therewith based upon the services of the Escrow Agent under the Escrow
Agreement, without waiving any duty or obligation the Escrow Agent may have to
any other person.
(b) DELIVERY VERSUS PAYMENT THROUGH THE
DEPOSITORY TRUST COMPANY. If the Investor elects to settle the Shares purchased
by such Investor by delivery versus payment through DTC, 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.
(a) DELIVERY BY ELECTRONIC BOOK-ENTRY AT THE
DEPOSITORY TRUST COMPANY. If the Investor elects to settle the Shares purchased
by such Investor through delivery by electronic book-entry at DTC, NO LATER THAN
ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND
THE COMPANY, the Investor shall direct the broker-dealer at which the account or
accounts to be credited with the Shares being purchased by such Investor are
maintained, which broker/dealer shall be a DTC participant, to set up a
Deposit/Withdrawal at Custodian ("DWAC") instructing American Stock Transfer &
Trust Company, the Company's transfer agent, to credit such account or accounts
with the Shares by means of an electronic book-entry delivery. Such DWAC shall
indicate the settlement date for the deposit of the Shares, which date shall be
provided to the Investor by the Placement Agent. Simultaneously with the
delivery to the Company by the Escrow Agent of the funds held in escrow pursuant
to SECTION 3.3 above, the Company shall direct its transfer agent to credit the
Investor's account or accounts with the Shares pursuant to the information
contained in the DWAC.
(b) DELIVERY VERSUS PAYMENT THROUGH THE
DEPOSITORY TRUST COMPANY. If the Investor elects to settle the Shares purchased
by such Investor by delivery versus payment through DTC, 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
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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 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.
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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.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, President and Chief Financial Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
WITH COPIES TO:
▇▇▇▇▇▇▇▇▇ Traurig, LLP
MetLife Building
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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
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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:
5. Name of DTC Participant __________________________
(broker-dealer at which the account
or accounts to be credited with the
Shares are maintained):
6. DTC Participant Number: __________________________
7. Name of Account at DTC Participant __________________________
being credited with the Shares:
8. Account Number at DTC Participant __________________________
being credited with the Shares: