EXHIBIT 10.2


 


***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.


 


FIFTH AMENDMENT

TO THE

COLLABORATIVE RESEARCH AND LICENSE AGREEMENT


 


THIS FIFTH
AMENDMENT TO THE COLLABORATIVE RESEARCH AND LICENSE AGREEMENT (the “Fifth Amendment”) is
made by and between SENOMYX, INC.
(“Senomyx”),
a Delaware corporation, having a principal place of business at 4767 Nexus
Centre Drive, San Diego, CA 92121, 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, that certain Second Amendment dated April 17,
2005, that certain Third Amendment dated March 22, 2006 and that certain
Fourth Amendment dated April 14, 2008, (collectively, the “Agreement”); and


 


WHEREAS, the parties
wish to amend the Agreement in the manner set forth in this Fifth Amendment
(capitalized terms used but not otherwise defined in this Fifth Amendment shall
have the meanings given such terms in the Agreement).


 


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:


 


AGREEMENT


 


1.                                        The following
definition is hereby added to Appendix A of the Agreement. All other
definitions in the Agreement will remain unchanged.


 


“Caribbean” means the following countries, which list will at all times be subject to U.S. trade embargoes:


 


	Anguilla 

Antigua and Barbuda 

Aruba 

Bahamas 

Barbados 

Belize

Bermuda

British Virgin Islands 

Cayman Islands 

Dominica
	Dominican Republic 

Grenada 

Guadeloupe 

Guyana

Haiti 

Jamaica 

Margarita

Netherlands Antilles (includes

Curacao and Bonaire)

Puerto Rico 
	Saint Kitts and Nevis 

Saint Lucia 

Saint Vincent and the 

Grenadines 

San Andres

Suriname

Trinidad and Tobago 

Turks and Caicos Islands 

United States Virgin Islands




 


***Confidential Treatment Requested


 

















 


2.                                        Section 7.4(A) of
the Agreement is hereby amended and restated in its entirety as follows:


 


“7.4(A)(i)               Royalty
for [...***...] Products.  Nestlé will
pay Senomyx a royalty equal to [...***...] on that portion of [...***...] during the
Royalty Term of a [...***...] Product(s) that contains at least one Selected
Compound provided, however, that the royalty rate will be equal to [...***...] on the
portion of [...***...] of a [...***...] Product(s) that contains more than one
Selected Compound.


 


7.4(A)(ii)                                               Royalty
for [...***...] Products.  Nestle will
pay Senomyx royalties with respect to [...***...] Products sold during the Royalty
Term according to the following terms:


 


(a)                                         With respect to [...***...] of [...***...]
Products occurring on or before [...***...], Nestlé will pay Senomyx a royalty
equal to [...***...] on that portion of [...***...] of an [...***...] Product(s) that
contains at least one Selected Compound provided, however, that the royalty
rate will be equal to [...***...] on the portion of [...***...] of an [...***...] Product(s) that
contains more than one Selected Compound.


 


(b)                                        During the period commencing
on [...***...] and ending on [...***...] (“[...***...] Royalty Period”), regardless of the
amount of [...***...] of [...***...] Products during such period, Nestlé shall pay to
Senomyx a [...***...] based on the following schedule (“[...***...] Royalty(ies)”):


 


	
  Date
  of Accrual

  	
  Amount
  of Payment

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  
	
  [...***...]

  	
  [...***...]

  



 


Subject to Section 7.4(A)(iii),
payment of the above installments shall be the only royalties due for [...***...]
Products sold during the [...***...] Royalty Period.  For the avoidance of doubt, [...***...] Royalty payments
under this Section 7.4(A)(ii)(b) are non-refundable and shall be due within [...***...] of the applicable date of
accrual set forth above.


 


In the event that during the
[...***...] Royalty Period the Agreement terminates early pursuant to Section 14
or if Nestlé otherwise ceases commercializing [...***...] Products, accrual of [...***...]
Royalties shall cease as of the effective date of


 


***Confidential Treatment Requested


 

















 


such termination or the date
Nestlé ceases commercialization of [...***...] Products and no additional payments
on any dates of accrual referred to in the table above after the effective date
of termination or after the date Nestlé ceases commercialization of [...***...]
Products shall become due and payable; provided, however, that in such event, for
any period that is less than [...***...] Nestle will pay a pro rated portion of the
next [...***...] payment through the effective date of such termination or the date
that Nestlé ceases commercialization of [...***...] Products Payments based on the
actual number of days in such [...***...]. Notwithstanding anything to the contrary
in this Agreement, Nestlé must provide at least [...***...] prior written notice to
Senomyx before the [...***...] Royalty payment obligation will cease.


 


During the [...***...] Royalty
Period, Nestlé will [...***...] Senomyx with royalty statements for [...***...]
Products in accordance with Section 7.6; provided, however, that with each
[...***...] Royalty payment Nestlé will provide to Senomyx a list of each [...***...]
Product sold on a country-by-country basis.


 


(c)                       With respect to
[...***...] of [...***...] Products occurring on or after April 1, 2010 and during
the remainder of the Royalty Term, Nestlé will pay Senomyx a royalty equal to [...***...]
on that portion of total [...***...] of an [...***...] Product(s) that contains at
least one Selected Compound provided, however, that the royalty rate will be
equal to [...***...] on the portion of [...***...] of an [...***...] Product(s) that
contains more than one Selected Compound.


 


7.4(A)(iii)                                    Royalty
for Products where [...***...] Compounds and [...***...]
Compounds are Used.  In the event that Nestlé is selling Products that
contain both a [...***...] Compound(s) and an [...***...] Compound(s), then the
highest effective royalty rate under 7.4(A)(i) or 7.4(A)(ii) above
will be applied for such Products.”


 


3.                                        The following subsection is hereby added at the end of
Section 8.1(B) of the Agreement:


 


“;
and (viii) an exclusive, nontransferable (except as permitted under Section 17.12),
license under the Senomyx Technology to use [...***...] Compound(s) solely for
non-commercial development of [...***...] Products in the [...***...] Category in the Caribbean.”


 


4.                                        The following
subsection is hereby added at the end of Section 8.1(C) of the
Agreement:


 


“;
and (viii) an exclusive, nontransferable (except as permitted under Section 17.12),
license under the Senomyx Technology to make, have made, use, sell, offer for
sale, have sold, import and export [...***...] Products in the [...***...] Category in
the Caribbean.”


 


***Confidential Treatment Requested


 

















 


5.             The following paragraph is hereby added
at the end of Section 8.1 of the Agreement:


 


“Notwithstanding
the foregoing, such exclusive grants in the Caribbean under Sections 8.1(B)(viii) and
8.1(C)(viii) above will be subject to Nestlé meeting the following aggregate
minimum sales requirement:  a minimum of [...***...]
of [...***...] Products in the Caribbean between [...***...].  In the event that Nestlé does not timely meet
or exceed such minimum sales requirement, such grants under Sections 8.1(B)(viii) and
8.1(C)(viii) above will become co-exclusive with one collaborator of
Senomyx.”


 


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


 


7.                                        This Fifth 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.


 


8.                                        This Fifth 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 Fifth
Amendment effective as of the date last signed by the parties below.


 


 


	
  SENOMYX,
  INC.

  	
   

  	
  NESTEC
  LTD.:

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   /s/ Kent Snyder

  	
   

  	
  By: 

  	
  /s/ H. Waszyk

  
	
  Name: 

  	
  Kent Snyder

  	
   

  	
  Name: 

  	
  H. Waszyk

  
	
  Title:

  	
    President, CEO and Chairman

  	
   

  	
  Title:

  	
    Senior Vice President

  
	
  Date:

  	
  September 15,
  2008

  	
   

  	
  Date:

  	
  15th
  September 2008

  
										



 


***Confidential Treatment Requested