Amendment to Merger Agreement Regarding Indemnification for Salvemini Litigation – ActivBiotics, Inc. and Metaphore Pharmaceuticals, Inc.

Summary

This agreement is an amendment to a previous merger agreement between ActivBiotics, Inc., Metaphore Pharmaceuticals, Inc., and related parties. It clarifies that a specific lawsuit (the Salvemini Matter) will be treated as a claim for which ActivBiotics and the surviving company must indemnify and protect Alan W. Dunton, M.D., as outlined in the original merger agreement. The amendment also allows the indemnifying parties to seek reimbursement under certain conditions. All other terms of the original merger agreement remain unchanged.

EX-10.23 33 a2172035zex-10_23.txt EXHIBIT 10.23 Exhibit 10.23 Metaphore Pharmaceuticals, Inc. One Bridge Plaza, Suite 500 Fort Lee, NJ 07024 December 28, 2005 ActivBiotics, Inc. 110 Hartwell Avenue Lexington, MA 02421 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 Daniela Salvemini PhD vs. Metaphore Pharmaceuticals, Inc. and Alan W. Dunton M.D. (Superior Court of New Jersey, Bergen County (Docket No. L-2076-05) (the "Salvemini 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 Alan W. Dunton, 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 Mr. Dunton pursuant to Section 8.12 of the Merger Agreement in connection with the Salvemini 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/ STEVEN C. GILMAN --------------------------------- Name: Steven C. Gilman Title: President & CEO Merger Sub: METAPHORE ACQUISITION CO. By: /s/ STEVEN C. GILMAN --------------------------------- Name: Steven C. Gilman Title: President Company: METAPHORE PHARMACEUTICALS, INC. By: /s/ Alan W. Dunton M.D. --------------------------------- Name: ALAN W. DUNTON M.D. Title: President & CEO