EXHIBIT 10.2
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EXECUTION COPY
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Confidential
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***Text Omitted and Filed
Separately
with the Securities and Exchange
Commission.
Confidential Treatment Requested
Under 17 C.F.R. Sections
200.80(b)(4),
200.83 and 230.406.
SECOND AMENDMENT
TO
COLLABORATIVE RESEARCH,
DEVELOPMENT, COMMERCIALIZATION AND
LICENSE AGREEMENT
This Second Amendment (“
Second Amendment ”) is entered into as of
April 8, 2008 (“ Second Amendment Effective Date
”), by and between Senomyx, Inc. (“ SENOMYX
”) and The Coca-Cola Company (“ KO
”).
BACKGROUND
WHEREAS, SENOMYX and KO have
previously entered into that certain Collaborative Research,
Development, Commercialization and License Agreement, effective
April 22, 2002, as amended by that certain First Amendment
dated April 7, 2004 (as amended, the “ Agreement
”); and
WHEREAS, the parties hereto have
agreed to amend the Agreement, and desire to enter into this Second
Amendment for the purpose of documenting such amendment as required
by Section 17.8 of the Agreement;
NOW, THEREFORE, in consideration of
the foregoing premises, the parties hereby agree to amend the
Agreement as follows.
AGREEMENT
1.
Appendix A to the Agreement is
hereby amended by either adding or amending, as provided below, the
following definitions:
“Base Component” has the
meaning set forth in Section 9.4.1.1.
“Bottlers” has the
meaning set forth in Section 9.4.1.2.
“Cost” or
“C” has the meaning set forth in
Section 9.4.1.2.
“Cost Savings Component”
has the meaning set forth in Section 9.4.1.2.
“Direct KO Competitor”
means a company in which greater than 10% of its annual
consolidated revenue is generated by sales of nonalcoholic
beverages (e.g. […***…]).
“Enhancing Compound(s)”
means any of the following: Enhancing Compound(s) for
[…***…] or Enhancing Compound(s) for Target
[…***…].
“Enhancing
Compound(s) for […***…]” means a
molecule(s) (not including KO Compound) under the Control of
SENOMYX that: (i) has an enhancing effect on the
[…***…]
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[…***…] in in vitro
assays and KO Beverage prototypes at a concentration of
[…***…], and (ii) is not […***…] at a
concentration of […***…]. For the avoidance of
doubt, […***…] is considered an Enhancing Compound for
[…***…].
“Enhancing
Compound(s) for Target […***…]” means the
following: a molecule(s) (not including KO Compound)
under the Control of SENOMYX that: (i) has an enhancing effect
on the […***…] in in vitro assays and KO Beverage
prototypes at a concentration of […***…], and
(ii) is not […***…] when tasted at a concentration
of […***…].
“Incremental Royalty
Shortfall” has the meaning set forth in
Section 9.5.
“Ingredient Supplier”
means a company that provides ingredients, flavors or food
additives to food or beverage customers.
“Intended Purpose” has
the meaning set forth in Section 5.4.
“[…***…]”
means any of the following […***…].
“Other Target
[…***…]” means any of the following
[…***…]. In this listing it is understood that,
for […***…] will be included. Upon mutual
agreement of the Joint Steering Committee, other
[…***…] may be added from time to time to as Other
Target […***…] defined herein.
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“Patents” means all
patent and patent applications which are controlled by SENOMYX as
of the Effective Date or developed by SENOMYX in the course of the
Collaborative R&D Period under the Collaborative R & D
Program which specifically claim a Product Compound, a process for
manufacturing a Product Compound, or the use of a Product Compound
in a Beverage or Beverage Base.
“Primary Target
[…***…]” means any of the following
[…***…].
“Product Compounds”
means any of the following: Product Compound(s) for
[…***…] or Product Compound(s) for Target
[…***…].
“Product Compound(s) for
[…***…]” means a Selected Compound(s) for
[…***…] that is used by KO in Beverages or Beverage
Bases.
“Product Compound(s) for
Target […***…]” means a Selected
Compound(s) for Target […***…] that is used by KO
in Beverages or Beverage Bases.
“Selected Compound(s)”
means any of the following: Selected Compound(s) for
[…***…] or Selected Compound(s) for Target
[…***…].
“Selected Compound(s) for
[…***…]” means an Enhancing Compound(s) for
[…***…] that is selected by the Steering Committee for
development pursuant to Section 5.4.
“Selected Compound(s) for
Target […***…]” means an Enhancing
Compound(s) for Target […***…] that is selected by
the Steering Committee for development pursuant to
Section 5.4.
“Target
[…***…]” means any of the following
[…***…]: Primary Target […***…] or
Other Target […***…].
“Target […***…]
Price” or “TSP” has the meaning set forth in
Section 9.4.1.2.
2.
Section 3 of the Agreement is
hereby amended and restated in its entirety as follows:
“3.1
The parties will collaborate during
the Collaborative R&D Period to discover Enhancing Compounds
and develop Selected Compounds, pursuant to the Research Plan and
the Development Plan (collectively, the “ Collaborative
R&D Program ”). For the avoidance of doubt,
research and development of Enhancing Compounds for Target
[…***…] and Enhancing Compounds for […***…]
shall be considered part of the Collaborative R & D
Program. SENOMYX shall not be obligated to perform research
and development activities under the Collaborative R & D
Program for Enhancing Compounds for more than […***…]
Primary Target […***…] at any one time.
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SENOMYX shall not be obligated to
perform research and development activities under the Collaborative
R & D Program for Enhancing Compounds for Other Target
[…***…] or […***…], unless otherwise
mutually agreed upon in writing by the parties; provided, however,
that in the event that during the Collaborative R & D
Period SENOMYX discovers Enhancing Compounds for Other Target
[…***…] or Enhancing Compounds for […***…],
KO will be granted rights to such Enhancing Compounds as provided
in Section 10.
Subject to Section 15 hereof,
this Agreement establishes a Collaborative R&D Program
commencing on the Effective Date and concluding on April 22,
2010 (“ Collaborative R&D Period
”).
3.2
SENOMYX will provide reasonable
access to KO of aggregate results of research performed under the
Collaborative R&D Program including, but not limited
to:
(a)
[…***…] meetings (except
in […***…] when a […***…] occurs as
described below) with Mark Zoller, Ph.D. and/or Don Karanewsky,
Ph.D. or their respective designees in which progress toward the
discovery of Enhancing Compounds for Target […***…]
will be reviewed;
(b)
[…***…] meeting
[…***…] to be provided to KO by SENOMYX
[…***…] of such meetings in sufficient detail to assist
KO in understanding the subject matter presented at such
meetings;
(c)
[…***…] reports
documenting in writing the progress toward discovery of Enhancing
Compounds for […***…] to be delivered to KO at the
[…***…];
(d)
[…***…] meetings,
alternating between […***…] and […***…],
with […***…] (which are not required to be
[…***…]) in which relevant information regarding the
progress of the Collaborative R&D Program will be
[…***…]; and
(e)
[…***…] progress
[…***…] outlining […***…] progress on the
Collaborative R&D Program and suggested next steps (due
[…***…] of […***…] Collaborative
R & D Period).
The content of the foregoing
meetings and reports will include aggregate results and updates on
[…***…] (but not […***…]),
[…***…] Enhancing Compounds for Target
[…***…] that have been tasted by SENOMYX and for which
patent applications have been filed, […***…] and
[…***…], and subsequent […***…] results
used to design and improve enhancers (which results shall not,
however, include proprietary information such as
specific
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[…***…]). For the
avoidance of doubt, this Section, and the information provided by
SENOMYX hereunder, is designed to update KO on the scientific
progress and related results of research performed under the
Collaborative R&D Program. Information provided to KO
hereunder will be considered Confidential Information of SENOMYX
pursuant to the Agreement. KO understands and agrees that it
is not a sub-licensee of SENOMYX Technology and it is not the
intention of the parties that any Senomyx Technology be transferred
or licensed to KO by virtue of any information provided pursuant to
this Section or that SENOMYX be required to provide sufficient
information hereunder to enable KO to duplicate work being
conducted by SENOMYX.
3.3
The parties agree that from time to
time KO, at KO’s sole cost, may elect to provide compounds to
SENOMYX (which shall not include KO Compounds or KO Related
Compounds described in Section 5.5) for evaluation under the
Collaborative R & D Program (“Additional
Compounds”) to discover Enhancing Compounds. KO hereby
irrevocably assigns to SENOMYX all right, title and interest in and
to any Additional Compounds and related Know-How provided to
SENOMYX and all Patent Rights claiming such Additional Compounds
and uses thereof, subject to the exclusive and non-exclusive
license grants to KO under Section 10. KO represents and
warrants that to the best of KO’s knowledge KO has the lawful
right to grant ownership of the Additional Compounds and related
intellectual property to SENOMYX in accordance with this
Section 3.3. For the avoidance of doubt, SENOMYX will have an
unrestricted and fully paid-up right to use the Additional
Compounds and related Know-How including, without limitation, with
its other collaborators, subject to the exclusive and non-exclusive
license grants to KO under Section 10. The Additional
Compounds shall be considered SENOMYX Technology. The
obligations and rights of the parties under this Section 3.3
will survive termination or expiration of this
Agreement.”
For the avoidance of doubt,
Section 3.2 supersedes all prior understandings and agreements
between the parties regarding Senomyx’s reporting obligations
under the Collaborative R & D Program including, without
limitation, obligations contained in Actions by Written Consent of
the Steering Committee, Minutes of the Steering Committee, and the
Create Act Guidelines dated February 15, 2006.
3.
Section 5.1 of the Agreement is
hereby amended such that on or before […***…], the
Steering Committee will agree upon an updated Research Plan, which
will be maintained in the minutes of the Steering Committee and
incorporated into the Agreement by reference. Until the
Steering Committee has agreed upon an updated Research Plan, the
parties will continue to operate under the Research Plan attached
to the original Agreement.
4.
A new sentence is added at the end
of Section 5.2 as follows:
“The Data Package(s) for
Enhancing Compound(s) of […***…] will only include
basic solubility and stability data developed at Senomyx’s
sole discretion.”
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5.
The last sentence of
Section 5.3 of the Agreement is hereby amended and restated in
its entirety as follows:
“Such determination will be
made by KO in writing and delivered to SENOMYX within a mutually
agreeable period from receiving such Data Package, not to exceed
(i) […***…] in the case of Enhancing Compounds for
Primary Target and Other Target […***…]; and
(ii) […***…] in the case of Enhancing Compounds
for […***…].”
6.
Section 5.4 of the Agreement is
hereby amended and restated in its entirety as follows:
“At the Steering Committee
meeting directly following the evaluation of such Data Package, KO
will notify the Steering Committee of the results of the evaluation
and the Steering Committee will determine if an Enhancing Compounds
in such Data Package will be selected for development under the
applicable Development Plan (“ Selected Compound(s)
”). With respect to the […***…], the
Steering Committee will meet within such […***…] period
set forth in Section 5.3 above.
At the time of selection, the
Steering Committee will designate the specific Target
[…***…] and/or […***…] that the Selected
Compound may be used to enhance under the license grants in
Section 10 (“ Intended Purpose ”).
The Selected Compound must meet the definition of Enhancing
Compound for each such designated […***…].
Subject to Section 8.1, if the
Steering Committee foregoes timely selection of an Enhancing
Compound, then all rights granted and unaccrued financial
obligations for such Enhancing Compound will be
terminated.”
7.
Section 6 of the Agreement is
hereby amended and restated as follows:
“ 6.1
Development Plans
. Development of Selected
Compounds will be pursuant to development plans as set forth below
(“ Development Plans ”).
6.1.1
Selected Compound(s) for
Target […***…]
On or before […***…],
the Steering Committee will agree upon an updated Development Plan
for Selected Compound(s) for Target […***…], which
will be maintained in the minutes of the Steering Committee and
incorporated into this Agreement by reference. Until the
Steering Committee has agreed upon an updated Development Plan, the
parties will continue to operate under the Development Plan
attached to the Original Agreement.
SENOMYX will use best efforts using
the resources received under Section 9.1 to perform the
activities assigned to it in the Development Plan for Selected
Compound(s) for Target […***…]. SENOMYX
represents and
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KO acknowledges that the total
resources to be deployed for pursuit of the program objectives will
be significantly more than those provided under
Section 9.1.
KO will use best efforts to perform
the activities assigned to it in the Development Plan for Selected
Compound(s) for Target […***…].
6.1.2
Selected Compound(s) for
[…***…]
SENOMYX shall have the sole control
of the development of Selected Compound(s) for
[…***…], subject to any rights granted to KO under
Section 10.6. At the time of selection of each Selected
Compound for […***…] under Section 5.4, SENOMYX
will provide a Development Plan(s) to the Steering Committee,
which is not subject to Steering Committee approval. SENOMYX
may modify such Development Plan(s) in its sole discretion at
any time.
6.2
Implementation of Development
Plan for Selected Compounds for Target […***…]
The implementation of the
Development Plan for Selected Compounds for Target
[…***…] will:
(i)
commence upon the Steering
Committee’s selection of a Selected Compound(s) for
Target […***…] that will be developed under the
Development Plan; and
(ii)
end upon FEMA GRAS determination for
such Selected Compound(s) for Target […***…], and
if applicable, the receipt of an FDA no objection letter or
completion of any additional safety studies requested by
FDA.
6.3
Regulatory
(i)
Under the Development Plan for
Selected Compound(s) for Target […***…], as part
of its obligation to perform the activities assigned to it, SENOMYX
will make all regulatory filings to obtain approval for the use of
the Selected Compound(s) for Target […***…].
SENOMYX shall have the sole control and responsibility for
regulatory filings to obtain approval for the use of Selected
Compound(s) for […***…].
(ii)
SENOMYX will exclusively own all
regulatory filings made or filed by SENOMYX for a Selected
Compound(s), and regulatory filings will be subject to the license
grants pursuant to Section 10. SENOMYX will appoint a
regulatory consultant who will be obligated to provide
non-confidential updates on the regulatory strategies and filings
on other programs at SENOMYX. Additionally, SENOMYX will, in
good faith,
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attempt to facilitate the mutual
exchange of information on the regulatory strategy as it relates to
the […***…] program.
6.4
Costs of Regulatory
Filings
6.4.1
Selected Compound(s) for
Target […***…]
SENOMYX will be responsible for the
reasonable costs associated with FEMA GRAS determination of the
Selected Compound(s) for Target […***…].
SENOMYX will not be responsible for costs that exceed the greater
of either:
(i)
the costs of obtaining FEMA GRAS
determination for […***…]; or
(ii)
[…***…].
Any costs incurred by KO in
obtaining FEMA GRAS determination for a Selected
Compound(s) for Target […***…] that becomes a
Product Compound for Target […***…], will be
[…***…].
6.4.2
Selected Compound(s) for
[…***…]
SENOMYX will be responsible for all
costs associated with FEMA GRAS determination of Selected
Compound(s) for […***…].
6.5
Additional Safety Studies or
Regulatory Approvals
6.5.1
Selected Compound(s) for
Target […***…]
With respect to Selected
Compound(s) for Target […***…], the Steering
Committee will agree on:
(i)
any additional safety studies to be
performed on the Selected Compound(s);
(ii)
the additional regulatory approvals
or determinations to be obtained for the Selected Compound(s);
and
(iii)
the allocation of costs and
resources between KO and SENOMYX associated with such activities
over and above those stated in Section 6.4.
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6.5.2
Selected Compound(s) for
[…***…]
With respect to Selected
Compound(s) for […***…], SENOMYX will have sole
control over: (i) any additional safety studies to be
performed on the Selected Compound(s); and (ii) the additional
regulatory approvals or determinations to be obtained for the
Selected Compound(s).
6.6
Cooperation
KO will cooperate to the extent
reasonably necessary to assist SENOMYX in the performance of the
foregoing activities and SENOMYX will provide KO with copies of all
regulatory filings and supporting data and regulatory
determinations on the Selected Compound(s).
In addition, each party is obligated
to:
(i)
give timely notice to the other
party for any adverse events and product recall actions relating to
Beverages or Beverage Bases incorporating Product Compound(s);
and
(ii)
report such adverse events as
required by law.”
8.
Each reference to
“Commercialization Plan” in Section 7 of the
Agreement is hereby replaced with “Commercialization
Plan(s)”. For the avoidance of doubt, a
Commercialization Plan is required for each Selected
Compound.
9.
Section 8.1 of the Agreement is
hereby amended and restated in its entirety as follows:
“During the Collaborative
R & D Period SENOMYX agrees not to provide research and
development services or grant any rights to SENOMYX Technology to a
Third Party for use in the discovery or commercialization of
Compounds that enhance the […***…] intensity of Target
[…***…] for application in the Fields, subject to
the co-exclusive rights in Field II, the early conclusion provision
under Section 15.2, and KO’s royalty payment obligations
under Section 9; provided, however, that SENOMYX i
