Exhibit 10.23
Metaphore Pharmaceuticals, Inc.
Xxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
December 28, 2005
ActivBiotics, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is hereby made to the Agreement and Plan of Merger and
Reorganization, dated as of December 7, 2005 ("Merger Agreement") by and among
ActivBiotics, Inc., Metaphore Acquisition Co., Metaphore Pharmaceuticals, Inc.
and the Stockholder Representatives party thereto (collectively, the "Parties").
Capitalized terms used herein but not otherwise defined herein shall have such
meanings as defined in the Merger Agreement.
Notwithstanding anything to the contrary contained in the Merger Agreement,
the Parties hereby agree as follows:
1. The current action entitled Xxxxxxx Xxxxxxxxx PhD vs. Metaphore
Pharmaceuticals, Inc. and Xxxx X. Xxxxxx M.D. (Superior Court of New Jersey,
Bergen County (Docket No. L-2076-05) (the "Xxxxxxxxx Matter"), set forth on
Schedule 6.17 of the Company Disclosure Schedule shall be considered a D&O Claim
for which ABI and the Surviving Corporation shall indemnify and hold harmless
Xxxx X. Xxxxxx, M.D., in accordance with Section 8.12 of the Merger Agreement.
The Parties further agree that if at any time ABI or the Surviving Corporation
is required to provide indemnification to Xx. Xxxxxx pursuant to Section 8.12 of
the Merger Agreement in connection with the Xxxxxxxxx Matter, then ABI or the
Surviving Corporation shall have the right to make a claim for indemnification
therefor pursuant to Section 13.3 of the Merger Agreement.
2. Except as modified hereby the Merger Agreement remains in full force and
effect.
[SIGNATURE PAGE TO FOLLOW]
Please confirm your agreement to the foregoing by signing the enclosed
duplicate of this letter.
ABI:
ACTIVBIOTICS, INC.
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
Merger Sub:
METAPHORE ACQUISITION CO.
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Company:
METAPHORE PHARMACEUTICALS, INC.
By: /s/ Xxxx X. Xxxxxx M.D.
---------------------------------
Name: XXXX X. XXXXXX M.D.
Title: President & CEO
