EXHIBIT 10.2


 


	
  EXECUTION COPY

  	
   

  	
  Confidential

  



 


***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 is permitted
to provide research and development services or grant any rights in SENOMYX
Technology to a Third Party(ies) for molecules that have a primary effect on a [...***...] that is not a Target [...***...] that enhance the [...***...] of a Target [...***...] in in vitro assays
and product prototypes at a concentration of [...***...].  By way of illustration, but not limitation,
in taste tests [...***...] enhances the [...***...] and enhances the [...***...].  Such compound is considered an Enhancing
Compound for [...***...]. Accordingly, for
purposes of this illustration any such rights that Senomyx grants to Third
Party(ies) for such Enhancing Compound in Field I shall be limited for intended
use as an enhancer for a [...***...] that is not a Target [...***...].


 






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After
the Collaborative R & D Period and for the remainder of the Term of
the Agreement, provided that the Steering Committee has selected an Enhancing
Compound pursuant to Section 5.4 and has designated its Intended Purpose
with one or more specific Target [...***...], 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 such
specific 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.


 


After
the Collaborative R & D Period, nothing in this Agreement shall be
deemed to restrict or otherwise limit SENOMYX from providing research and
development services or granting rights to SENOMYX Technology to Third Parties
for use in the discovery or commercialization of (i) Compounds that
enhance the [...***...] intensity of Target [...***...] for which an Enhancing Compound has not been selected by
the Steering Committee pursuant to Section 5.4 for application in the
Fields; and (ii) Compounds that are not Enhancing Compounds for any Target
[...***...] for application in the Fields.”


 


10.           The last sentence of Section 8.2
of the Agreement is hereby amended and restated in its entirety as follows:


 


“Subject
to the rights of the Third Party set forth in Section 10.5, SENOMYX will
not promote or allow, where possible, any Third Party to promote such [...***...] enhancers which are Selected Compounds for Target [...***...] for use with a Competitive Product in the Fields.”


 


11.           Section 8.5 of
the Agreement is hereby amended and restated in its entirety as follows:


 


“This
Agreement does not preclude SENOMYX from (i) entering into a collaboration
during the Collaborative R & D Period for the discovery, development
and commercialization of compounds that are high-potency [...***...] (“High-Potency [...***...]”), as long as such High-Potency [...***...] do not enhance the intensity of Target [...***...] at concentrations below the taste threshold of [...***...] for such High-Potency [...***...]; (ii) entering
into a collaboration after the Collaborative R & D Period for the
discovery, development and commercialization of High-Potency [...***...], as long as such compounds do not enhance the intensity of
a Target [...***...] for which an Enhancing Compound
has been selected by the Steering Committee pursuant to Section 5.4 at
concentrations below the taste threshold of [...***...] for such High-Potency
[...***...].”


 


12.           Section 9.1.2(iii) of
the Agreement is hereby amended and restated in its entirety as follows:


 


“total
$16,000,000 (subject to Section 15) and are allocated and recognizable by
SENOMYX during the eight year Collaborative R & D Period.”


 






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13.           Section 9.2 of
the Agreement is hereby amended and restated in its entirety as follows:


 


“If
during any year of the Collaborative R&D Period through April 22, 2010
KO is paying royalties, then all royalties up to [...***...] will be waived.  Any royalties not waived (i.e.. in excess of [...***...]) under the preceding sentence will be credited against any
future amounts owed for Annual Research Support under Section 9.1 in such
year during the Collaborative R&D Period through April 22, 2010.  In the event that the parties agree to extend
the Collaborative R & D Period beyond April 22, 2010, this Section 9.2
will not apply during any such extension.”


 


14.           Section 9.3 of
the Agreement is hereby amended and restated in its entirety as follows:


 


“KO
will pay SENOMYX the following non-creditable, non-refundable milestone
payments within thirty days of the occurrence of the following milestone
events, as determined by the Steering Committee:


 


	
  a)

  	
   

  	
  [***] upon [***] (discovery of the
  first [***] with at least [***] of a [***] and in [***] of no more than [***];

  
	
   

  	
   

  	
   

  
	
  b)

  	
   

  	
  [***] upon identification of the first [***]. To be [***] at least [***]; or the [***] at least [***] without the introduction of [***]; and meet the
  following additional [***] criteria necessary
  to perform such [***];

  
	
   

  	
   

  	
   

  
	
  c)

  	
   

  	
  [***] upon the [***] of the first [***]; and

  
	
   

  	
   

  	
   

  
	
  d)

  	
   

  	
  [***] upon the first [***] of the [***] or the [***] incorporating a [***].

  



 


If an
Enhancing Compound for [...***...] is selected by the
Steering Committee pursuant to Section 5.4 prior to KO paying each
milestone set forth in Section 9.3, then [...***...] of the milestones set
forth in Sections 9.3(a), 9.3(b), 9.3(c), and 9.3(d) above will be
considered applicable to such Selected Compound for [...***...].  Upon achievement of such milestones for the
first Enhancing Compound for Target [...***...], then KO will pay the
remaining [...***...] of such non-creditable,
non-refundable milestones to SENOMYX within [...***...] of the occurrence of
the milestone events, as determined by the Steering Committee.  KO milestone payments shall never exceed the
amount set forth in this Section.”


 






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15.           Section 9.4 is of
the Agreement is hereby changed to Section 9.4.1.   Each reference to “Product Compound” in Section 9.4.1
of the Agreement is hereby replaced with “Product Compound for the applicable
Target [...***...]”. 
For the avoidance of doubt, with respect to the matrix in Section 9.4.1,
the Royalty Rate, [...***...] will be determined
for each applicable Target [...***...], and volumes will be
determined on a Product Compound by Product Compound basis.  The reference to “Section 9.4” in the
last sentence of Section 9.4.1 is hereby replaced with “Section 9.4.1”.


 


16.           New Sections 9.4.2,
9.4.3 and 9.4.4 are hereby added to the Agreement as follows:


 


“9.4.2      Product Compound(s) for
[...***...]


 


KO
will pay to SENOMYX a royalty for each [...***...] of Beverages
incorporating Product Compound(s) for [...***...] sold by KO, its
Affiliates or Bottlers according to the following matrix:


 


	
   

  	
   

  	
   

  	
   

  	
  Product
  Compound Use Level (ppm)

  Royalty payment per [...***...] (in US

  Dollars) sold

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  



 


For
the achievement of an [...***...] (i.e., one which is
not shown on the above table), the parties will use the actual [...***...], multiplied by a royalty payment [...***...] from the next [...***...] and the [...***...] on the table above. 
If the [...***...] is [...***...], the parties will use the actual [...***...] the applicable [...***...] royalty payment [...***...].


 


9.4.3        Royalty for Enhancing
Compounds for More than One [...***...]


 


If KO
is selling Beverages or Beverage Bases incorporating a Product Compound that is
an Enhancing Compound that has an Intended Purpose for more than one [...***...] and it is used in a Beverage or Beverage Base with a blend
of such [...***...], then the [...***...] under 9.4.1 or 9.4.2 above will be applied for such
Beverage or Beverage Base.


 






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9.4.4        Royalty Where Two or
More Product Compounds are Used


 


If KO
is selling Beverages or Beverage Bases incorporating more than one Product
Compound, then the [...***...] under 9.4.1 or 9.4.2
above will be applied for such Beverage or Beverage Base.”


 


17.           Section 9.5 of
the Agreement is hereby amended and restated in its entirety as follows:


 


“9.5.1      Product Compounds for [...***...]


 


9.5.1.1    Minimum Annual Royalties for
Product Compounds which are Enhancing Compounds for [...***...] having a [...***...]


 


During the Commercialization Period, KO will pay [...***...] royalties to SENOMYX to maintain the exclusive license
under Section 10.4 with respect to [...***...]:


 


a)             [...***...] for the first 12 months of the Commercialization Period;


 


b)            [...***...] for the next 12 months;


 


c)             [...***...] for the next 12 months;


 


d)            [...***...] for the next 12 months; and


 


e)             [...***...] for each of the next 12-month periods.


 


With respect to Product Compounds which are Enhancing Compounds for [...***...], the amount due for any such [...***...] period is the [...***...] is payable [...***...] after the end of any
12-month period.  [Note to KO,
this is consistent with the timing in Section 9.7.1.]  With respect to Product Compounds which are
Enhancing Compounds for [...***...], the amounts paid for
[...***...] any amounts due SENOMYX for
royalties over the [...***...] royalties for such
compounds in the subsequent [...***...].


 


9.5.1.2    Minimum Annual Royalties for
Product Compounds which are Enhancing Compounds for [...***...] having an [...***...]


 


During the Commercialization Period, KO will pay [...***...] royalties to SENOMYX to maintain the exclusive license
under Section 10.4 with respect to [...***...]:


 






***Confidential
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13

















 


a)            [...***...] for the first 12 months of the Commercialization Period;


 


b)            [...***...] for the next 12 months;


 


c)            [...***...] for the next 12 months;


 


d)            [...***...] for the next 12 months; and


 


e)            [...***...] for each of the next 12-month periods.


 


With respect to Product Compounds which are Enhancing Compounds for [...***...], the amount due for any such [...***...] period is the [...***...] is payable [...***...] after the end of any
12-month period.  With respect to Product
Compounds which are Enhancing Compounds for [...***...], the amounts paid for
[...***...] any amounts due SENOMYX for
royalties for such compounds over the [...***...] royalties in the
subsequent [...***...].


 


9.5.1.3     If there are more than
one Product Compounds which are Enhancing Compounds for fructose and/or
glucose, then the applicable minimum annual royalties will be the minimum
annual royalty for the Product Compound having the greater enhancing effect.


 


9.5.2        Minimum Royalties for Product
Compounds which are Enhancing Compounds for Target [...***...], or Enhancing Compounds for [...***...]


 


9.5.2.1     Minimum  Annual
Royalties for Product Compounds which are Enhancing Compounds for Target [...***...] or Enhancing Compounds for [...***...] having a [...***...]


 


During
the Commercialization Period, KO will pay [...***...] royalties to SENOMYX
to maintain the exclusive license under Section 10.4 with respect to the
applicable Target [...***...] and the nonexclusive
license to [...***...] under Section 10.6:


 


a)            [...***...] for the first 12 months of the Commercialization Period;


 


b)            [...***...] for the next 12 months;


 


c)            [...***...] for the next 12 months; and


 


d)            [...***...] for each of the next 12-month periods.


 






***Confidential
Treatment Requested


 


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With
respect to Product Compounds which are Enhancing Compounds for Target [...***...], or Enhancing Compounds for [...***...], the amount due for
any such [...***...] period is the [...***...] is payable [...***...] after the end of any
12-month period.


 


9.5.2.2    Minimum  Annual
Royalties for Product Compounds which are Enhancing Compounds for Target [...***...] or Enhancing Compounds for [...***...] having an [...***...]


 


During
the Commercialization Period, KO will pay [...***...] royalties to SENOMYX
to maintain the exclusive license under Section 10.4 with respect to the
applicable Target [...***...] and the nonexclusive
license to [...***...] under Section 10.6:


 


a)             [...***...] for the first 12 months of the Commercialization Period;


 


b)            [...***...] for the next 12 months;


 


c)             [...***...] for the next 12 months; and


 


d)            [...***...] for each of the next 12-month periods.


 


With
respect to Product Compounds for Target [...***...] or Product Compounds
for [...***...], the amount due for any such [...***...] period is the [...***...] is payable [...***...] after the end of any 12-month period.


 


9.5.2.3     Subject to Section 9.5.3, if
there are more than one Product Compounds which are Enhancing Compounds for
Target [...***...], or Enhancing Compounds for [...***...], then the applicable minimum annual royalties will be the
minimum annual royalty for the Product Compound having the greater enhancing
effect.


 


9.5.3        Minimum Royalty for
Enhancing Compounds for More than One [...***...]


 


For the avoidance of doubt, if an Enhancing Compound is an Enhancing
Compound for more than one [...***...], the minimum annual
royalty will be paid incrementally per [...***...] (except that only one
minimum annual royalty shall apply for Enhancing Compounds for [...***...]).


 






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Treatment Requested


 


15
















 


9.5.4        Minimum Royalties
where two or more Product Compounds are Used


 


If KO is selling Beverages or Beverage Bases incorporating more than one
Product Compound, then the highest effective minimum annual royalty above will
be applied for such Beverage or Beverage Base.”


 


18.           Section 9.6 of the Agreement
is hereby amended and restated in its entirety as follows:


 


“The minimum annual royalty values in Section 9.5.1.1(e), 9.5.1.2(e),
9.5.2.1(d) and 9.5.2.2(d) will be [...***...] for the [...***...] of the Commercialization Period and beyond, for: (i) [...***...] using the [...***...], using the first year
of Commercialization Period as the base year; and, (ii) [...***...] using the [...***...] of the
Commercialization Period as the base year.”


 


19.           The second sentence of Section 9.7.1
is hereby amended and restated in its entirety as follows:


 


“All Royalty Shortfalls and Incremental Minimum Annual Royalties will be
paid within [...***...] after the end of each
Calendar Year.”


 


20.           Section 9.7.2 is
hereby amended and restated in its entirety as follows:


 


“With
each such quarterly payment, KO will furnish to SENOMYX a royalty statement in
sufficient detail to permit confirmation of the accuracy of the royalty payment
made, which sets forth on a country-by-country and [...***...] basis the relevant
sales information, including:


 


	
  i.)

  	
  the
  total number of Unit Cases of each such Beverage incorporating Product
  Compound sold;

  
	
   

  	
   

  
	
  ii.)

  	
  the
  SP, the PSR;

  
	
   

  	
   

  
	
  iii.)

  	
  the
  Cost for Target [***];

  
	
   

  	
   

  
	
  iv.)

  	
  the
  royalty rate (R);

  
	
   

  	
   

  
	
  v.)

  	
  the
  Net Sales, if applicable;

  
	
   

  	
   

  
	
  vi.)

  	
  the
  royalties payable in United States dollars;

  
	
   

  	
   

  
	
  vii.)

  	
  the
  method used to calculate the royalty payment;

  
	
   

  	
   

  
	
  viii.)

  	
  the
  exchange rate used; and

  



 






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16

















 


ix.)           other information employed to
calculate the royalty payment for such Beverage incorporating Product Compound.”


 


21.           Sections 10.1-10.10 of the
Agreement are hereby amended and restated in their entirety as follows:


 


“10.1                 Non-exclusive
Grant by SENOMYX of Rights Regarding Evaluation of Compounds and Enhancing
Compounds for Target [...***...]


 


10.1.1      In Field I


 


SENOMYX hereby grants to KO a nontransferable, non-exclusive, worldwide
license during the Collaborative R & D Period under the Target IP to (i) use
Compounds for Target [...***...] that SENOMYX, in its
sole discretion, delivers to KO for evaluation in Field I; and (ii) use
Enhancing Compound(s) for Target [...***...] for evaluation in
Field I.


 


10.1.2      In Field II


 


SENOMYX hereby grants to KO a nontransferable, non-sublicensble,
non-exclusive, worldwide license during the Collaborative R & D Period
under the Target IP to (i) use Compounds for Target [...***...] that SENOMYX, in its sole discretion, delivers to KO for
evaluation in Field II; and (ii) use Enhancing Compound(s) for Target
[...***...] solely for evaluation in Field II.


 


All rights granted by SENOMYX to KO under this Section 10.1 will be
subject to timely payment by KO of all payments under this Agreement.


 


10.2                        Non-exclusive
Grant by SENOMYX of Rights to Make and Have Made Selected Compounds for Target [...***...]


 


SENOMYX hereby grants KO a perpetual, nontransferable, non-exclusive,
worldwide license under the Target IP to make and have made Selected Compounds
for Target [...***...] for use by KO and its Affiliates
in Beverages and Beverage Bases for their Intended Purpose in the Fields.


 


All rights granted by SENOMYX to KO under this Section will be
subject to timely payment by KO of all payments under this Agreement.


 


10.3                       Non-exclusive
Grant of Rights by SENOMYX to Make, Have Made, Use and Sell Beverages and
Beverage Bases with Selected Compound for Target [...***...]


 


SENOMYX hereby grants to KO a perpetual, nontransferable, non-exclusive
worldwide license under Target IP to make, have made, use and sell, Beverages
and Beverage Bases that incorporate Selected Compounds for Target [...***...] for their Intended Purpose in the Fields.


 






***Confidential
Treatment Requested


 


17

















 


All rights granted by SENOMYX to KO under this Section will be
subject to timely payment by KO of all payments under this Agreement.


 


10.4                       Exclusive
Grant of Rights by SENOMYX Regarding Selected Compounds for Target [...***...] and Beverages and Beverage Bases that Incorporate Selected Compounds
for Target [...***...]


 


SENOMYX hereby grants to KO a perpetual, nontransferable exclusive
worldwide license under Target IP to make, have made, use and sell Beverages
and Beverage Bases that incorporate Selected Compounds for Target [...***...] for their Intended Purpose in Field I.


 


The license will include the right to sublicense the use and sale of such
Product Compounds for its Intended Purpose to be embodied in a Competitive
Product in Field I.  The license will
include the right to sublicense the use and sale of one Selected Compound (that
is not a Product Compound) for its Intended Purpose to be embodied in a
Competitive Product in Field I, with the prior written consent of SENOMYX,
which will not be unreasonably withheld.


 


All rights granted by SENOMYX to KO under this Section will be
subject to timely payment by KO of all payments under this Agreement.


 


10.5                        Co-Exclusive
Grant of Rights by SENOMYX Regarding Selected Compounds for Target [...***...] and [...***...] Beverage
Bases incorporating Selected Compounds for Target [...***...]


 


SENOMYX hereby grants to KO a perpetual, nontransferable co-exclusive,
(only one other licensee) with respect to one other Third Party, worldwide
license under Target IP to make, have made, use and sell [...***...] Beverage Bases incorporating Selected Compounds for Target
[...***...] for their Intended Purpose in
Field II.


 


All rights granted by SENOMYX to KO under this Section will be
subject to timely payment by KO of all payments under this Agreement.


 


10.6        Grant of
Rights by SENOMYX Regarding Selected Compounds for [...***...]


 


10.6.1      Non-exclusive Grant by SENOMYX of
Rights Regarding Evaluation of Compounds and Enhancing Compounds for [...***...]


 


SENOMYX hereby grants to KO a nontransferable non-exclusive worldwide
license during the Collaborative R & D Period under the Target IP to (i) use
Compounds for [...***...] that SENOMYX, in its
sole discretion, delivers to KO for evaluation in the Fields; and (ii) use
Enhancing Compound(s) for [...***...] for evaluation in the
Fields.


 






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18

















 


10.6.2               Non-exclusive Grant by SENOMYX of
Rights to Make and Have Made Selected Compounds for  [...***...]


 


SENOMYX hereby grants KO a nontransferable non-exclusive worldwide license
under the Target IP to make and have made Selected Compounds for [...***...] for use by KO and its Affiliates in Beverages and Beverage
Bases for their Intended Purpose in the Fields.


 


10.6.3               Non-exclusive Grant of Rights by
SENOMYX Regarding Selected Compounds and Beverages and Beverage Bases that
Incorporate Selected Compounds for [...***...]


 


SENOMYX hereby grants to KO a nontransferable non-exclusive worldwide
license under Target IP to make, have made, use and sell Beverages and Beverage
Bases that incorporate Selected Compounds for [...***...] for their Intended
Purpose in the Fields.


 


10.6.4.     [...***...] in Field I


 


In the event that SENOMYX grant a license(s) to an Ingredient
Supplier(s), such license(s) shall [...***...] in Field I that
incorporate Selected Compound(s) for [...***...] for their Intended
Purpose until the earlier of: (i) [...***...]; or (ii) [...***...] for each Selected Compound.


 


10.6.5      Ingredient Supply
Arrangement


 


In the event that SENOMYX licenses a Selected Compound for [...***...] to an Ingredient Supplier in the Fields, such license
shall include a requirement that during the Term, upon request of KO, such
Ingredient Supplier [...***...] a purchasing
arrangement with KO for the applicable Selected Compound.  At KO’s sole option, on [...***...] advance written notice to SENOMYX (“Conversion
Date”), KO may cease to rely upon its licenses under Section 10.6
to any Selected Compound(s) for [...***...] in order to enter
into a purchasing arrangement with a Third Party Ingredient Supplier Licensee
of SENOMYX with rights in the Fields. After the Conversion Date, KO will not be
permitted to use, sell, have sold, or otherwise transfer any inventories of the
applicable Selected Compound for [...***...].  Upon such conversion and fulfillment of
accrued commitment to SENOMYX, KO’s remaining milestone, royalty and minimum
annual royalty obligations to SENOMYX for such Selected


 






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19

















 


Compound for [...***...] (and the licenses
granted under Section 10.6 with respect to such compound) shall cease.


 


10.6.6      Right of First
Negotiation


 


Before SENOMYX makes its first grant of a license to any Enhancing
Compound for [...***...] to a Direct KO
Competitor in Field I, SENOMYX will present that opportunity first to KO.  KO must inform SENOMYX of commercial interest
in such opportunity in writing within [...***...] of receipt of written
notice from SENOMYX.  In the event that
KO provides such written notice, the parties agree to commence good faith
negotiations toward a further agreement for such Enhancing Compounds for [...***...] in Field I, which negotiations shall conclude within a
period of [...***...] from the date of written notice
from KO.  In the event that such
negotiations are not concluded within such period, SENOMYX shall be free to
enter into agreements with Direct KO Competitor(s) for such Enhancing
Compound(s) for [...***...].  For the avoidance of doubt, SENOMYX shall be
free at any time to enter into license agreements with Ingredient Suppliers for
Enhancing Compounds for [...***...].


 


All rights granted by SENOMYX to KO under this Section 10.6 will be
subject to timely payment by KO of all payments under this Agreement.


 


10.7        Limitation on
Licenses


 


None of the rights granted hereunder are intended to give KO the right to
sell Enhancing Compounds, Selected Compounds or Product Compounds.  The foregoing does not prevent KO from
supplying Product Compounds for Target [...***...] to a sublicensee
pursuant to a permitted sublicense.


 


10.8        If KO Does Not Pay Minimum Royalties


 


If at the end of any Calendar Year the royalties paid by KO to SENOMYX for
such Calendar Year, as provided for under Section 9.4, are less than the
minimum royalties due under Section 9.5 for such Calendar Year,  and KO does not pay SENOMYX all corresponding
Royalty Shortfalls and Incremental Minimum Annual Royalties for such year,
then:


 


	
  a.

  	
  KO’s
  exclusive license under Section 10.4 will terminate;

  
	
   

  	
   

  
	
  b.

  	
  SENOMYX’s
  obligations under Section 8.1, Section 8.2, Section 8.3 and
  Section 8.5 will terminate;

  
	
   

  	
   

  
	
  c.

  	
  KO’s
  co-exclusive license under Section 10.5 will continue in effect until
  SENOMYX, in its sole discretion, notifies KO that it will become
  non-exclusive;

  



 






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20

















 


d.             KO’s non-exclusive
license under Section 10.2 will continue in effect;


 


e.             KO’s non-exclusive
license under Section 10.3 will continue in effect; and


 


f.              Section 10.6 will
terminate.


 


The non-exclusive license in Section 10.2 and 10.3 will be subject to
the royalties provided for under Section 9.4, but not subject to the
minimum annual royalties obligation under Section 9.5.


 


10.9        Most Favored
Licensee


 


In the event that [...***...], SENOMYX will [...***...].


 


10.10      Obligations
Related to Sublicenses


 


KO will have the right to grant sublicenses under Section 10.4 under
this Section 10.10 to Third Parties, Affiliates, and Bottlers.  In respect of sublicenses to Third Parties;
such rights granted will be contingent on:


 


(i)            KO obtaining sublicensing terms,
including royalty obligations [...***...]; and


 


(ii)           KO receiving [...***...].


 


KO will have the right to grant sublicenses under Section 10.6.3
under this Section 10.10 to Affiliates and Bottlers.


 


All sublicenses granted by KO would be subject to SENOMYX receiving at
least the same obligations, including royalties, as SENOMYX would receive under
this Agreement (“Obligated Royalties”).  Payments received by KO from any party under
such sublicense, other than an Affiliate or Bottlers, [...***...] the amount of [...***...].  Any payments paid to KO by its sublicensees,
other than under sublicenses to Affiliates and Bottlers for Beverages and
Beverage Bases, [...***...] the amount of [...***...] would be [...***...].  KO would be liable for the royalty payments
to SENOMYX due by any sublicensee.


 






***Confidential
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21

















 


All rights granted by KO to sublicensees under this Section will be
subject to KO’s diligence obligations under this Agreement, the timely payment
by KO of all payments under this Section and compliance with other obligations
in the sublicense agreement.”


 


22.           The reference to “KO
technology” in the first sentence of Section 11.2 of the Agreement is
hereby replaced with “KO Technology”.


 


23.           The first sentence of
the second paragraph of Section 11.3 of the Agreement is hereby amended
and restated in its entirety as follows:


 


“KO
hereby irrevocably assigns to SENOMYX all interest in and to any such
Inventions and other Know-How that consist solely of improvements to SENOMYX
Technology, Compounds, Enhancing Compounds, or Selected Compounds, and all
Patent Rights claiming such Inventions and Know-How.”


 


24.           The first sentence of
the second paragraph of Section 11.4 of the Agreement is hereby amended
and restated in its entirety as follows:


 


“KO
hereby irrevocably assigns to SENOMYX all interest in and to any Joint
Inventions that consist of improvement to SENOMYX Technology, Compounds,
Enhancing Compounds, or Selected Compounds and uses thereof, and all Joint
Patent Rights claiming such Joint Inventions.”


 


25.           The reference to “section
11.1” in the first sentence of Section 12.2 of the Agreement is hereby
replaced with “Section 12.1”.


 


26.           The last sentence of Section 15.2(a) of
the Agreement is hereby amended and restated in its entirety as follows:


 


“In the event that KO notifies SENOMYX of early conclusion, the licenses,
rights and obligations provided for under Sections 8.1, 8.2, 8.3, 8.5, 10.4,
10.5, 10.6 and 10.9 will all terminate.”


 


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


 


29.           The parties must
mutually agree upon a press release prior to announcing the execution of this
Second Amendment and its material terms. 
Thereafter, KO 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.


 


30.           This Second Amendment
will be governed by the laws of the State of Delaware, as such laws are applied
to contracts entered into and to be performed entirely within such state.


 


22

















 


31.           This Second Amendment
may be executed in two 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, through their authorized officers, have executed
this Second Amendment as of the Second Amendment Effective Date.


 


 


	
  SENOMYX,
  INC. 

  	
   

  	
  THE
  COCA-COLA COMPANY 

  
	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ Kent
  Snyder  

  	
   

  	
  By:

  	
    /s/ Eddie R.
  Hays  

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Kent Snyder

  	
   

  	
  Name:  Eddie R. Hays

  
	
  Title:

  	
  President and Chief
  Executive Officer

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
    4-7-08

  	
   

  	
  Date:

  	
    4-8-08

  
								



 


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