Exhibit 10.2 


 


ESCROW AGREEMENT


 


This agreement
(this “Agreement”), dated as of June 20, 2014, is entered into by and among each of (i) Enzo Biochem, Inc. and
Enzo Life Sciences, Inc., having a principal place of business at 527 Madison Avenue, New York, New York (together “Enzo”),
(ii) PerkinElmer, Inc. and PerkinElmer Health Sciences, Inc. (together with PerkinElmer, Inc., “PerkinElmer”,
and together with Enzo, the “Parties” and each a “Party”), and (iii) Kramer Levin Naftalis
& Frankel LLP, solely in its capacity as escrow agent (in such capacity, the “Escrow Agent”), having an
office at 1177 Sixth Avenue, New York, New York 10036.


 


R E C I T A L S


 


WHEREAS,
pursuant to the Settlement Agreement (the “Settlement Agreement”) dated as of June 20, 2014 by and among Enzo
and PerkinElmer, Enzo and PerkinElmer have agreed to settle a lawsuit captioned Enzo Biochem, Inc., et al. v. PerkinElmer, Inc.,
et al, No. 03-CV-3817 RJS (the “Action”), and that PerkinElmer will pay Enzo $7 million (the “Settlement
Payment”);


 


WHEREAS,
by letters dated April 29 and May 12, 2014 to counsel for PerkinElmer, Greenberg Traurig LLP (“GT”) asserted a lien
on any settlement payments made in connection with the Action; 


 


WHEREAS, Enzo and PerkinElmer have agreed that, subject to
the next recital, PerkinElmer shall deposit, when required pursuant to the Settlement Agreement, the entire Settlement Payment
with the Escrow Agent (such amount, together with all interest thereon, the “Escrow Funds”) pursuant to the
Wire Transfer Instructions annexed as Schedule A hereto, and have so provided in the Settlement Agreement, which Escrow Funds are
to be held and released by the Escrow Agent pursuant to the terms of this Agreement; 


 


WHEREAS, Enzo and PerkinElmer have
agreed that, notwithstanding the prior recital, if at any time (a) on or before July 1, 2014, GT seeks either in its June 25, 2014
initial brief pursuant to the Court’s June 16, 2014 Order, or in any other document that is publically filed in connection
with its motion to set the total value of its lien in the Action (including all interest and expenses) (the “Lien Amount”),
less than the full amount of the Settlement Payment, PerkinElmer shall on July 2, 2014, pay the difference between the Lien Amount
and the Settlement Payment directly to Enzo, and shall deposit with the Escrow Agent only the portion of the Settlement Payment
that is equal to the Lien Amount, or (b) on or after July 2, 2014 and after PerkinElmer has deposited any or all of the Settlement
Payment with the Escrow Agent, GT seeks less than the full amount of the Escrow Funds, then PerkinElmer and Enzo shall direct the
Escrow Agent to pay Enzo the difference between the Lien Amount and the amount then held in escrow; and 


 


WHEREAS, the parties
hereto desire that the Escrow Agent serve as escrow agent to hold the Escrow Funds on the terms set forth in this Agreement.



    	 



    	



    


A G R E E M E N T


 


NOW, THEREFORE,
in consideration of the mutual covenants, representations and warranties made in this Agreement and in the Settlement Agreement,
the parties to this Agreement hereby agree as follows: 


 


SECTION 1. Escrow Funds.
Upon the Escrow Agent’s receipt of the Escrow Funds from PerkinElmer, the Parties acknowledge and agree that the Escrow Funds
shall be held by the Escrow Agent in an interest bearing account. Enzo shall report all such interest income and bear any taxes
thereon.


 


SECTION 2. Release
of Escrow Funds.


 


(a)
The Escrow Agent shall release the Escrow Funds, or any portion thereof, at any time and from time to time only upon and
in accordance with (i) its receipt of joint written instructions of Enzo and GT which include GT’s release of PerkinElmer
with respect to the Escrow Funds to be released, (ii) an order of Judge Sullivan or whichever judge may be assigned the Action
or an order of a court of competent jurisdiction directing such release, provided that to the extent the order directs a payment
to Enzo, the order is final and not subject to further appeal, and (iii) its receipt of joint written instructions from Enzo and
PerkinElmer. In the event that Judge Sullivan or whichever judge may be assigned the Action or a court of competent jurisdiction
determines that GT is entitled to some or all of the Lien Amount, and Enzo wishes to pay some or all of that award to GT from the
Escrow Funds, PerkinElmer and Enzo agree that they shall direct the Escrow Agent to pay GT the amount of the award that Enzo wishes
to pay from the Escrow Funds. Enzo and PerkinElmer agree that if at any time GT reduces the Lien Amount below the amount of the
Escrow Funds then held by the Escrow Agent in escrow, Enzo and PerkinElmer shall direct the Escrow Agent to pay an amount equal
to the difference between the Lien Amount and the Escrow Funds to Enzo. For avoidance of doubt, if GT seeks a lien in the Molecular
Probes action (03 Civ. 3816 (RJS)) or the Roche action (04 Civ. 4046 (RJS)) that includes some or all of the Lien Amount, that
will not reduce the Lien Amount or result in any decrease in the amount of the Escrow Funds to be held pursuant to this Agreement.


 


SECTION 3. Duties
and Liabilities of the Escrow Agent.


 


(a)
The Escrow Agent hereby represents that it has the authority to enter into this Agreement and serve as the Escrow Agent
in accordance with the terms of this Agreement. The Escrow Agent is acting hereunder as a depository only and without compensation,
and not as the agent of any Party, and the Escrow Agent shall have no duties or responsibilities except those expressly set forth
herein. The Escrow Agent shall have no liability hereunder except for its own bad faith, gross negligence or willful misconduct.


 


(b)
In the event any of the terms or provisions of any other agreement between any of the parties hereto conflict or are inconsistent
with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in
all respects. This Agreement sets forth exclusively the duties and obligations of the Escrow Agent with respect to any and all
matters pertinent to its acting as such hereunder. The Escrow Agent shall not be obligated to refer to, and shall not be bound
by, any other document or agreement.



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Notwithstanding any provision to the contrary contained in any
other agreement, the Escrow Agent shall have no interest in the Escrow Funds except as provided in this Agreement.


 


(c)
The Escrow Agent shall not be bound by any modification of this Agreement affecting the rights, duties and obligations of
the Escrow Agent, unless such modification shall be in writing and signed by the other parties hereto, and the Escrow Agent shall
have given its prior written consent thereto.


 


(d)
Subject to the terms and conditions of this Section 3(d), the Escrow Agent may resign at any time for any reason
by giving written notice thereof to the Parties. Upon receipt of any notice of resignation by the Escrow Agent, the Parties shall
cooperate in good faith to select a mutually acceptable replacement escrow agent as soon as possible thereafter. A resigning escrow
agent shall continue to hold the Escrow Funds pursuant to this Agreement until a mutually acceptable replacement escrow agent has
been selected, after which the resigning escrow agent shall transfer the Escrow Funds to the replacement escrow agent. Upon delivery
of the Escrow Funds to a replacement escrow agent, a resigning escrow agent shall be relieved of all further obligations under
this Agreement and shall be released from all liabilities, responsibilities and obligations of every kind and nature under this
Escrow Agreement. Notwithstanding anything to the contrary in this Agreement, Escrow Agent may deposit the Escrow Funds with the
clerk of the court of the United States District Court for the Southern District of New York or any other court of competent jurisdiction.
Escrow Agent shall give written notice of such deposit to each Party and, upon such deposit, Escrow Agent shall be relieved and
discharged of all further obligations hereunder.


 


SECTION
4. Reliance by the Escrow Agent. The Escrow Agent may act in reliance upon any instrument, document or signature
reasonably believed by it to be genuine and may assume any officer or legal representative of Enzo, PerkinElmer and GT purporting
to be giving any written notice, proof, advice or instruction in connection with the provisions hereof has been duly authorized
to do so.


 


SECTION
5. Indemnity of the Escrow Agent. Enzo agrees to indemnify the Escrow Agent and its employees, partners, agents
and representatives (collectively, the “Escrow Agent Indemnitees”) and to hold each Escrow Agent Indemnitee
harmless against any and all claims against it or liabilities incurred by it in the due performance of or arising out of its performance
of its duties hereunder, and to pay all costs, damages, judgments and expenses, including reasonable attorneys’ fees and
costs, suffered or incurred by such Escrow Agent Indemnitee in connection with or arising out of this Agreement, except for such
claims, liabilities, costs, damages, judgments, expenses and fees suffered or incurred by such Escrow Agent Indemnitee due to its
own bad faith, gross negligence or willful misconduct.


 


SECTION
6. Indemnity of PerkinElmer. By letters dated May 12 and April 29, 2014 to counsel for PerkinElmer, GT asserted
a lien on any settlement payments made in connection with the Action. If PerkinElmer becomes a defendant to any lawsuit concerning
that purported lien or PerkinElmer is added as a party on any motion to set the value of such lien, Enzo agrees to indemnify PerkinElmer
against (a) any final judgment awarded against PerkinElmer in that lawsuit or on that motion that is not subject to further appeal
and (b) PerkinElmer’s costs, including reasonable attorneys’ fees, incurred in that lawsuit or in responding to that
motion.



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SECTION 7. Miscellaneous.


 


(a) Upon
the delivery of the Escrow Funds as provided in Section 2 or in accordance with Section 3(d) of this
Agreement, all of the obligations of the Escrow Agent as set forth herein shall cease.


 


(b)
Except as otherwise provided in this Agreement, all notices or other communications required or permitted to be given pursuant
to this Agreement shall be in writing and shall be considered as properly given or made (i) upon the date of personal delivery
(if notice is delivered by personal delivery), (ii) on the date of delivery (if notice is delivered by facsimile or .pdf transmission),
(iii) on the day one (1) business day after deposit with a nationally recognized overnight courier service (if notice is delivered
by nationally recognized overnight courier service), or (iv) on the third (3rd) business day following mailing from within the
United States by first class United States mail, postage prepaid, registered mail return receipt requested (if notice is given
in such manner), and in any case addressed to the parties at the addresses set forth below (or to such other addresses as the parties
may specify by due notice to the other):


 


	 	If to Escrow Agent:	Kramer Levin Naftalis & Frankel LLP
	 	 	1177 Avenue of the Americas
	 	 	New York, New York 10022
	 	 	Attention: Michael J. Dell
	 	 	Fax: 212-715-8000
	 	 	mdell@kramerlevin.com
	 	 
	 	If to Enzo:	Enzo Biochem
	 	 	527 Madison Avenue
	 	 	New York, NY 10022
	 	 	Attn: Barry Weiner
	 	 	Fax: (212) 583-0150
	 	 	BWeiner@Enzo.com
	 	 
	 	If to PerkinElmer:	PerkinElmer, Inc.
	 	 	940 Winter Street
	 	 	Waltham, MA 02451
	 	 	Attn: Joel Goldberg
	 	 	Fax: 781-663-5969
	 	 	joel.goldberg@perkinelmer.com


 


(c)
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect
to any conflict of law rules. Any legal action or proceeding brought for declaratory relief concerning or to enforce the terms
of this Agreement shall be submitted to Judge Sullivan or whichever judge may be assigned the Action or to a court of competent
jurisdiction. In addition, each of the undersigned parties consents and agrees that Judge Sullivan or whichever judge may be assigned
the Action or a court of competent jurisdiction may exercise jurisdiction over his, her or its person for purposes of enforcing
the



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terms of this Agreement and agrees not to assert that venue
in New York is inappropriate or inconvenient.


 


(d)
This Agreement and the Settlement Agreement together constitute the entire agreement between the undersigned parties hereto
with respect to the subject matter covered herein, and supersede all prior agreements (written or oral), negotiations and discussions
between parties which relate hereto. None of the terms or conditions set forth herein may be assigned, amended, modified or changed
unless said assignment, amendment, change or modification is set forth in writing and signed by all of the undersigned parties
hereto. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors, heirs and assigns.


 


(e)
If any term, provision, covenant, paragraph, or subparagraph of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of this Agreement shall be deemed severable therefrom, shall remain in full
force and effect, and shall in no way be affected, impaired or invalidated.


 


(f)
This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original hereof.


 


(g)
Any dispute that may arise under this Agreement with respect to the delivery and/or ownership or right of possession of
any of the Escrow Funds, or the duties of the Escrow Agent under this Agreement, shall be settled either by mutual agreement of
the parties (evidenced by appropriate instructions in writing to Escrow Agent, signed by the parties), or if such dispute cannot
be resolved by mutual agreement among the parties to such dispute, such dispute shall be finally resolved by Judge Sullivan or
whichever judge may be assigned the Action or by a court of competent jurisdiction. Notwithstanding anything to the contrary in
this Agreement, the Escrow Agent shall be entitled to deposit the Escrow Funds with the United States District Court for the Southern
District of New York or at such other place designated by Judge Sullivan or whichever judge may be assigned the Action or in a
court of competent jurisdiction if such dispute is not resolved pursuant to this Section 7(g) within 90 days after such dispute
first arises.


 


(h)
The Parties acknowledge and agree that the Escrow Agent serves as counsel to Enzo including in respect of the subject matter
of this Agreement. The parties waive irrevocably all conflicts of interest that may arise or be deemed to arise by reason of the
foregoing circumstances. Without limiting the generality of the foregoing, PerkinElmer specifically agrees that the Escrow Agent
may continue to act as counsel to Enzo and its affiliates in connection with any and all matters notwithstanding its service as
the Escrow Agent. Notwithstanding the foregoing, in no event shall the Escrow Agent serve as counsel to Enzo in connection with
any litigation with PerkinElmer regarding the Escrow Funds or this Agreement.


 


[SIGNATURES ON NEXT PAGE]



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IN WITNESS
WHEREOF, the undersigned parties hereto have executed this Agreement on the date first written above.


 


	 	KRAMER LEVIN NAFTALIS & FRANKEL	 
	 	LLP, as Escrow Agent	 
	 	 	 
	 	By:	/s/ Michael Dell	 
	 	 	Name: Michael Dell	 
	 	 	Title: Partner	 
	 	 	 
	 	ENZO BIOCHEM, INC.	 
	 	 	 
	 	By:	/s/ Barry Weiner	 
	 	 	Name:  Barry Weiner	 
	 	 	Title: President 	 
	 	 	 
	 	ENZO LIFE SCIENCES, INC.	 
	 	 	 
	 	By:	 /s/ Barry Weiner	 
	 	 	Name:  Barry Weiner	 
	 	 	Title: Executive Vice President	 
	 	 	 
	 	PERKINELMER, INC.	 
	 	 	 
	 	By:	/s/ Joel S. Goldberg	 
	 	 	Name:  Joel S. Goldberg	 
	 	 	Title: SVP. General Counsel 	 
	 	 	 
	 	PERKINELMER HEALTH SCIENCES, INC.	 
	 	 	 
	 	By:	/s/  Joel S. Goldberg	 
	 	 	Name:  Joel S. Goldberg	 
	 	 	Title: President	 




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SCHEDULE A


 


ESCROW AGENT


WIRE TRANSFER INSTRUCTIONS


 


	 	Bank:	Citibank, N.A.
	 	 	153 East 53rd Street
	 	 	New York, NY 10043
	 	 
	 	ABA No.:	021000089
	 	 
	 	Account Name:	Kramer Levin Naftalis & Frankel LLP
	 	 	Attorney Escrow Account
	 	 
	 	Account No.:	37301114
	 	 
	 	Attention:	Joseph Scotto
	 	 	(212) 559-6338


 


Questions regarding these wire instructions can be directed
to:


 


Margot H. Usdan/CFO (212-715-9298)


Larry Gallo/Controller (212-715-7763)


Karen Robertson/Operations Manager (212-715-7654)


Dorota Dymek/Assistant Escrow Supervisor (212-715-7664).


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