CONFIDENTIAL


 


Exhibit
10.1


 


***Text Omitted and Filed Separately


with the Securities and Exchange Commission.


Confidential Treatment Requested


Under 17 C.F.R. Sections 200.80(b)(4)


and 240.24b-2.


 


SECOND AMENDMENT

TO THE

COLLABORATIVE RESEARCH AND LICENSE AGREEMENT


 


THIS SECOND AMENDMENT TO THE COLLABORATIVE RESEARCH
AND LICENSE AGREEMENT (the “Second
Amendment”) is made by and between SENOMYX, INC. (“Senomyx”), a Delaware corporation, having a principal
place of business at 11099 North Torrey Pines Road, La Jolla, California 92037,
and NESTEC, Ltd. (“Nestlé”),
a Swiss company, having a principal place of business at Avenue Nestlé 55,
CH-1800 Vevey, Switzerland.


 


Whereas, Senomyx and Nestlé entered into that certain
Collaborative Research and License Agreement dated as of April 18, 2002, as
amended by that certain First Amendment dated October 23, 2003, (collectively,
the “Agreement”)
to collaborate in the following research and development programs: (i) to
discover compounds that enhance the [***] taste of
products in defined fields; and (ii) to discover compounds that enhance and/or
mimic the taste of [***] in
defined fields (capitalized terms used but not otherwise defined in this Second
Amendment shall have the meanings given such terms in the Agreement); and


 


WHEREAS, the parties wish to amend the Agreement to extend
Collaborative Period for the [***] Program
in the manner set forth in this First Amendment.


 


NOW, THEREFORE, in consideration of the foregoing premises and of the
covenants, representations and agreements set forth below, the parties hereby
agree to amend the Agreement as follows:


 


1.             The following definitions of Appendix A of the Agreement are hereby
amended and restated herein. All other definitions in the Agreement will remain
unchanged.


 


“Collaborative Period” means (i) in the case of the [***] Program the period beginning on the Effective Date and
ending seventy-two (72) months thereafter, unless earlier terminated in
accordance with Section 14; (ii) in the case of the [***]
Program the period beginning on the Effective Date and ending thirty-six (36)
months thereafter, unless earlier terminated in accordance with Section 14.”


 


“Go/No-Go
Decision Date” means April 18, 2006.”


 










***Confidential
Treatment Requested


 


 


1





















 


2.             The first two sentences of Section 7.1 of the Agreement are hereby
amended and restated in their entirety as follows:


 


“Annual
Research Support. Each year during the Collaborative Period, Nestlé
will pay Senomyx as follows:


 


(A)                                First Three Years of
Collaborative Period.  [***] per year
for first three years of the Collaborative Programs, [***] for
the [***] Program and [***]
for the [***] Program.  Such payments will be made in advance and on
an equal quarterly basis.


 


(B)                                  Second Three Years of the
Collaborative Period.


 


a.               [***] per month for the second three years of
the Collaborative Period for the [***] Program
until achievement of the following interim goal:  identification of at least one Compound that [***] (“Interim Goal”).


 


b.              From and after achievement of the Interim
Goal, [***] per month for the remainder of
the Collaborative Period for the [***] Program,
provided, however, that if Senomyx fails to achieve [***]
(as defined below) within [***] of
achievement of the Interim Goal, then the research funding will be [***] per month until the earlier of: (i) the end of the
Collaborative Period for the [***] Program;
or (ii) achievement of [***],
whereupon funding will be increased again to [***]
per month for the remainder of the Collaborative Period for the [***] Program.   [***] as used herein means identification of at least one
Compound that [***].


 


c.               Payments under this Section 7.1(B) shall
be paid quarterly in advance.  Payments
for any period which is for less than one (1) month of the Collaborative Period
will be a pro rata portion of the monthly installment based on the actual
number of days in such month.


 


d.              Any adjustments in funding due to
achievement of the milestone set forth in (a) above will be made by Nestlé within
[***] days of milestone achievement or
with the next quarterly payment, whichever is earlier.”


 


The remainder of Section 7.1 shall remain
unchanged.


 


3.             Section 8.4 is hereby added to the Agreement as follows:


 


“Research Information.


 


(A)         During the Collaborative Period for the [***] Program, Nestlé may from time to time determine the [***] and provide the resulting [***]
information on the [***] to
Senomyx (“[***] Information”) for use in studies
relating to [***]. In certain cases, Senomyx
may assist Nestlé in the [***]
determination of [***], for example, to [***] determination. Nestlé hereby grants to Senomyx a
non-exclusive nontransferable (except as provided under Section 17.12)
worldwide license to use [***]
Information in the [***] Program
and in [***] 


 










***Confidential
Treatment Requested


 


 


2





















 


related
collaborative programs with its Affiliates and with Third Parties including,
but not limited to, collaborative programs to discover compounds that enhance
the [***] taste of products outside the [***] Field.


 


(B)           Notwithstanding anything to the contrary
in this Agreement, to the extent that any Know-How or Inventions are generated,
developed or discovered from the [***]
Information [***] on or after the date that
this Second Amendment has been signed by all parties to it, such Inventions
shall be considered Senomyx Inventions and will constitute Senomyx Technology.


 


(C)           Nestlé hereby represents and warrants to
Senomyx that (i) it shall use its commercially reasonable efforts to ensure
that the [***] Information will be obtained and
provided in compliance with all applicable laws, statutes and regulations; (ii)
Nestlé is authorised to deliver [***]
Information for the uses and purposes set forth in this Agreement; and (iii)
Nestlé is not aware of any Affiliate (with the exception of Nestlé SA) or Third
Party that has any ownership interest in any intellectual property rights with
respect to the [***] Information.


 


(D)          Senomyx, its Affiliates and its Third
Party licensees may sell any products developed by Senomyx using, or which are
derived from or incorporate, [***] Information
without payment or other obligation to Nestlé or any third party.”


 


4.             Section 14.2 of the Agreement is hereby amended and restated in its
entirety as follows:


 


“Nestlé will have the right to terminate this Agreement without cause
at any time on or after the Go/No-Go Decision Date upon sixty (60) days written
notice; provided, however, that if such termination occurs after the Go/No-Go
Decision Date and prior to the end of the Collaborative Period, Nestlé will
provide additional research funding in accordance with Section 7.1 for a period
of six (6) months from the date of written notice of termination (for purposes
of clarity, such payment will be a pro rata portion of the research funding
rate set forth in Section 7.1).”


 


5.             Section 15.3 of the Agreement is hereby amended and restated in its
entirety as follows:


 


“Survival.  The obligations and rights of the parties
under Sections 7.9, 8.4, 9.1 through 9.7, 10, 15, 16.2(B), 16.3, 16.4, 17, and
Appendix A, will survive termination of this Agreement.”


 


6.             The terms and conditions of the Appendix B Research Plan for the [***] Program is hereby amended and restated in its entirety
as attached hereto. The terms and conditions of the Appendix B Research Plan
for the [***] Program shall remain unchanged.


 


7.             Senomyx will issue a press release to
announce the execution of this Second Amendment and the material terms;
provided, however, that the extent of disclosure of such material terms shall
be no more than is required to comply with applicable SEC disclosure


 










***Confidential
Treatment Requested


 


 


3





















 


requirements and otherwise subject to the prior written consent of
Nestlé. Thereafter, Nestlé and Senomyx may each disclose to Third Parties the
information contained in such press release without the need for further
approval by the other party.


 


8.             Except as specifically amended by this Second Amendment, the terms and
conditions of the Agreement shall remain in full force and effect.


 


9.             This Second Amendment will be governed by the laws of the State of
California, U.S.A., as such laws are applied to contracts entered into and to
be performed entirely within such State.


 


10.          This
Second Amendment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


IN WITNESS WHEREOF, the parties have executed this Second Amendment
effective as of April 17, 2005.


 


 


 


NESTEC LTD.


	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Peter Van Bladeren

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  Director NRC

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  20 April, 2005

  
	
   

  	
   

  	
   

  
	
  SENOMYX,
  INC.

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Kent Snyder

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  President and CEO

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  April 20, 2005

  



 


4





















 


APPENDIX B


 


COLLABORATIVE RESEARCH AND
LICENSE AGREEMENT


 


AMENDED AND RESTATED RESEARCH
PLAN FOR [***] PROGRAM


 


 


	
  Nestlé
  Responsibility

  	
   

  	
  Steering Committee

  Responsibility

  	
   

  	
  Senomyx 

  Responsibility

  	
   

  	
  Timeline

  
	
  1.
  Evaluate [***] from [***].

  	
   

  	
   

  	
   

  	
  1.
  Evaluate [***] from [***]
  samples

  	
   

  	
  [***] 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.
  Provide to Senomyx [***]
  information on [***] from [***].

  	
   

  	
   

  	
   

  	
  2.
  Evaluate [***] from [***]
  samples

  	
   

  
	
  1.
  Present additional information on [***].

  	
   

  	
  1.
  Hold Steering Committee Meeting. 

  	
   

  	
  1.
  Present progress and status of the project.

  	
   

  	
  [***] 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.
  Review minutes and action items from previous meeting.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.
  Communicate on ad hoc basis between quarterly
  Steering Committee meetings.

  	
   

  	
  1.
  Identify a [***] form of [***] 

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  	
   

  	
  2.
  Initiate [***] focused [***]. 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  3.
  Identify [***] compounds in the [***]. 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  4.
  Conduct [***] on active [***].

  	
   

  



 










***Confidential Treatment Requested


 


 





















 


	
  Nestlé Responsibility

  	
   

  	
  Steering Committee

  Responsibility

  	
   

  	
  Senomyx 

  Responsibility

  	
   

  	
  Timeline

  
	
  1.
  Review data on [***].

  	
   

  	
  1.
  Hold Steering Committee Meeting. 

  	
   

  	
  1.
  Present progress and status of project. 

  	
   

  	
  [***] 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.
  Review and approve minutes from previous meeting.

  	
   

  	
  2.
  Report results of [***].

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  1.
  Identify [***] Compound(s). 

  	
   

  	
  [***]  

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  2.
  Provide Nestlé with a sample of the [***]
  Compound(s). 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  3.
  Initiate [***] of [***]
  Compound(s).

  	
   

  
	
  1.
  Review [***] results and general progress on
  project.

  	
   

  	
  1.
  Hold Steering Committee Meeting. 

  	
   

  	
  1.
  Share progress and status of project.

  	
   

  	
  [***] 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.
  Review and approve minutes from previous meeting

  	
   

  	
   

  	
   

  
	
  1. Nestlé to evaluate [***]
  containing [***] Compound(s).

  	
   

  	
   

  	
   

  	
  1.
  Continue [***] of compounds. 

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  	
   

  	
  2.
  Test compounds for [***]. 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  3.
  Prepare [***].

  	
   

  



 










***Confidential Treatment Requested


 


 





















 


	
  Nestlé Responsibility

  	
   

  	
  Steering Committee

  Responsibility

  	
   

  	
  Senomyx 

  Responsibility

  	
   

  	
  Timeline

  
	
  1.
  Review specific taste testing results and general progress on project.

  	
   

  	
  1.
  Hold Steering Committee Meeting.

  	
   

  	
  1.
  Share progress and status of project.

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.
  Review and approve minutes from previous meeting.

  	
   

  	
  2.
  Submit to Nestlé [***] on
  Compounds.

  	
   

  
	
  1.
  Nestlé to evaluate [***] and
  conduct [***] containing Compound(s).

  	
   

  	
   

  	
   

  	
  1.
  Senomyx to provide Nestlé with samples of Compounds in [***]
  for evaluation.

  	
   

  	
  [***]

  
	
  1.
  Nestlé shares comments on Compounds in [***] and
  other [***] results.

  	
   

  	
  1.
  Hold Steering Committee Meeting.

  	
   

  	
  1.
  Share progress and status of project.

  	
   

  	
  [***]

  
	
   

  	
   

  	
  2.
  Review and approve minutes from previous meeting.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3. Select [***] for [***].

  	
   

  	
   

  	
   

  
	1. Nestlé to present commercialization plan to Senomyx.
	 
	 
	 
	1. Initiate [***] of [***] Compound(s) for [***]. .
	 
	[***] 

	
   

  	
   

  	
   

  	
   

  	
  2.
  Schedule [***] with [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  1.
  Conduct [***] studies to support [***].

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  	
   

  	
  1.
  Submit [***] on [***]
  Compound(s).

  	
   

  	
  [***]

  
								



 










***Confidential Treatment Requested


 





















 


	
  Nestlé Responsibility

  	
   

  	
  Steering Committee

  Responsibility

  	
   

  	
  Senomyx 

  Responsibility

  	
   

  	
  Timeline

  
	
   

  	
   

  	
   

  	
   

  	
  1.
  Receive [***] on [***] Compound(s).

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  	
   

  	
  1.
  Initiate [***] and other [***] based on [***].

  	
   

  	
  [***]

  



 










***Confidential
Treatment Requested