Exhibit 10.8
January 13,2016
Third RockVenturesII, L.P.
Attn:KevinGillis
29 Newbury Street
Boston, MA02116
Re:Implications ofReverseMerger
DearMr.Gillis:
Reference ismade(1)totheAgreementandPlanofMerger(the"MergerAgreement"), datedMarch11,2015, among Ember Therapeutics, Inc. ("Ember"), Mariel Therapeutics,Inc. ("Mariel") and Ember Acquisition Corp., and (2) to the Convertible Promissory Note (the "Note"), dated March 11, 2015,issued by Marielin favor of Third Rock Ventures II, L.P. ("Third Rock") in connectionwith the MergerAgreement. Section1.10(a)(ii) of the Merger Agreement definesa "Buyer Change of Control" as, among other things,a "merger of theBuyer [Mariel] ortheSurviving Corporation [Ember] with orintoanyother Person (other than a merger withor intoa wholly ownedsubsidiary of the Buyeror the mergerof the Surviving Corporation intothe Buyer)."
In October2015,Marielmergedwith andintoEmber,withEmberasthesurvivingentity.Embernowintends toenterintoareversemergertransaction (the "Reverse Merger") in or aroundJanuary 2016, whereby Emberwill bemerged with and intoAmerican HomeAllianceCorporation ("NEWCO") andwill becomea public company.Thestockholders of Ember priorto theReverse Merger will ownmore than 50%ofthecommon stockof NEWCO after theReverseMerger.
The ReverseMergerwouldconstitutea "BuyerChange ofControl"asdefined in theMergerAgreement. PursuanttoSection 1.10(ii)(A)of theMergerAgreement, theDevelopmentPayment Amount(as defined therein) becomes payable withinfive business days after a BuyerChangeof Control. Inaddition, pursuant to the fifthparagraph ofthe Note, the Outstanding Amount (as definedtherein) will automatically become due and payable upon aBuyerChange of Control.
This letterservestoconfirmouragreementthat:
| i. | As aresultofitsmergerwithMariel,Emberhas assumed allobligationsof the"Maker"under the Note andthe"Buyer" under theMerger Agreement and, upontheeffectiveness of the Reverse Merger,NEWCO shallassume allobligationsof the "Maker" under the Note and the"Buyer" under the Merger Agreement. |
| ii. | The ReverseMergerwillnotconstitute a"BuyerChange of Control"forpurposesoftheMergerAgreementor the Note. Accordingly, neithertheDevelopment Payment Amountnor the Outstanding Amountwill become due orpayable as a result of the Reverse Merger. |
| iii. | The definition of"BuyerChange ofControl"forpurposesoftheMergerAgreementandthe Note shallbeamended to include thefollowingnew subsection (5): |
"(5) thefirstissuance ofcapitalstockofthe Maker, in one transactionor aseriesoftransactions occurring after January1,2016,withimmediately available aggregate proceeds totheMaker (including proceeds from any indebtedness of the Makerthatconvertinto equity in such financing) of atleast $20,000,000."
| iv. | The FifthParagraphoftheNoteisamendedas follows by deleting the strikethroughtextandaddingtheboldandunderlined text: |
"In theeventofaBuyerChangeofControlprior totheInitialPublicOffering,theOutstanding Amount shallautomaticallybecome due and payable, provided thatHolder shall havetherightto convert, effective immediately prior to the closing of theBuyer Change of Control,some or allof theOutstanding Amount intosharesof common stockoftheMaker ata conversionprice per share equal to80% of thevalue of the per share merger consideration payable to holders of Maker’s common stock pursuant toper-share valueof Maker's common stockimplied bysuch Buyer Change of Control,withanyresulting fraction of a sharerounded to the nearest wholeshare (with 0.5being rounded up).The Makershallnotify the Holder inwritingof the anticipated occurrenceand theterms of a Buyer Changeof Control atleast 30 days prior to the closing date of theBuyer Change ofControl."
| v. | No furtheramendmentofwaiverofanytermof theMergerAgreementshallbe effective without thewrittenconsentofThirdRock and Ember(orNEWCO afterconsummation oftheReverse Merger). |
For theavoidanceofdoubt,ThirdRockdoesnot waiveanyotherrightswithrespect totheMerger Agreement or the Note, including but not limited to anyfuture right to receive the Development Payment asa resultof a BuyerChange ofControl involvingNEWCO.
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Kindly acknowledgeThirdRock'sagreementtotheforegoingbycounter-signingthisletter where indicatedbelowandreturningitto meviaemail at your earliest convenience.
Thank youfor yourconsideration.
Sincerely,
EMBER THERAPEUTICS,INC.
/s/ Joseph Hernandez
JosephHernandezExecutiveChairman
ACKNOWLEDGED ANDAGREEDTOBY:
THIRD ROCKVENTURESII, L.P.
By: ThirdRockVenturesGPII,L.P.,itsgeneral partner
By: TRV GP II, LLC,its generalpartner
By:/s/ Kevin Gillis
Name: Kevin Gillis
Title: CFO
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