ASSET PURCHASE AGREEMENT

EXHIBIT 2.1

ASSET PURCHASE AGREEMENT

BETWEEN

MIDDLEBROOK PHARMACEUTICALS, INC.

AND

TABLE OF CONTENTS

		Page
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.1 Definitions			1
1.2 Construction			1
ARTICLE II
PURCHASE AND SALE
2.1 Sale and Purchase of Assets			2
2.2 No Liabilities			2
ARTICLE III
PRICE, PAYMENT AND CLOSING
3.1 Part 1 Purchase Price			2
3.2 Part 1 Closing			3
3.3 Part 2 Purchase Price			4
3.4 Part 2 Purchase Conditions and Closing			4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1 Organization			6
4.2 Authority; Enforceability			7
4.3 No Violation; Enforceability			7
4.4 No Proceedings			7
4.5 Financial Condition			7
4.6 Brokers, Etc			7
4.7 Title			7
4.8 Purchased Assets; Products			8
4.9 Patents			8
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
5.1 Organization			8
5.2 Authority; Enforceability			9
5.3 No Violation; Enforceability			9

		Page
5.4 No Proceedings			9
5.5 Financial Condition			9
5.6 Brokers, Etc			9
5.7 Due Diligence			9
ARTICLE VI
COVENANTS
6.1 Information Exchange			10
6.2 Manufacturing Purchase Order			10
6.3 Commercially Reasonable Efforts			10
6.4 Further Assurances			10
6.5 Bulk Sales Laws			11
ARTICLE VII
INDEMNIFICATION
7.1 Survival			11
7.2 Indemnification by Seller			11
7.3 Indemnification by Buyer			11
7.4 Procedure for Indemnification – Third-Party Claims			12
7.5 Limitation on Damages			13
ARTICLE VIII
GENERAL PROVISIONS
8.1 No Joint Venture			13
8.2 Expenses			13
8.3 Amendment and Modification			13
8.4 Waiver of Compliance; Consents			14
8.5 Notices			14
8.6 Publicity			15
8.7 Assignment; No Third-Party Rights			15
8.8 Governing Law			15
8.9 Access to Records			15
8.10 Severability			15
8.11 Construction			15
8.12 Counterparts			16
8.13 Entire Agreement			16

ASSET PURCHASE AGREEMENT

     This ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of November 7, 2007, is entered into by and between MiddleBrook Pharmaceuticals, Inc. , a Delaware corporation (“ Seller ”), and Kef Pharmaceuticals, Inc. , a Delaware corporation (“ Buyer ”).

Background Statement

     Seller is the owner of patents, patent applications and certain other assets relating to antibiotic products sold under the name “KEFLEX”. The parties to this Agreement wish to provide for (i) Seller’s sale of such assets to Buyer, (ii) Buyer’s consignment back to Seller of those assets constituting finished goods inventory and (iii) Buyer’s licensing back to Seller of those assets constituting patents, all in accordance with and subject to the terms and conditions of this Agreement (as more fully defined herein).

Statement of Agreement

     The parties hereto agree as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

     1.1 Definitions . Capitalized terms used in this Agreement have the meanings given to them in Appendix 1 .

     1.2 Construction .

     (a) The article and section headings contained in this Agreement are solely for the purposes of reference and convenience, are not part of the agreement of the parties, and shall not in any way limit, modify or otherwise affect the meaning or interpretation of this Agreement.

     (b) References to “Sections” or “Articles” refer to corresponding Sections or Articles of this Agreement unless otherwise specified.

     (c) References to “Exhibits” refer to the exhibits attached hereto.

     (d) Unless the context requires otherwise, the words “include,” “including” and variations thereof mean without limitation; the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms refer to this Agreement as a whole and not any particular section or article in which such words appear; and any reference to a statute, regulation or law shall include any amendment thereof or any successor thereto and any rules and regulations promulgated thereunder.

     (e) Unless the context requires otherwise, words in the singular include the plural, words in the plural include the singular, and words importing any gender shall be applicable to all genders.

     (f) References to time are to prevailing time in New York, New York.

     (g) References to a number of days refer to calendar days unless Business Days are specified. Except as otherwise specified, whenever any action must be taken on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day.

ARTICLE II

PURCHASE AND SALE

     2.1 Sale and Purchase of Assets .

     (a)  Purchased Assets .

     (i) On the terms and subject to the conditions of this Agreement, at and as of the Part 1 Closing, Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, all right, title and interest of Seller (it being understood that the use or sale of such inventory, other assets and rights shall be limited to the United States and Puerto Rico) in and to all of MiddleBrook’s inventory of KEFLEX drug product (collectively, the “ Part 1 Assets ”), free and clear of all Encumbrances except for Permitted Encumbrances.

     (ii) Upon satisfaction or waiver of the conditions set forth in Sections 3.4(b) , 3.4(c) and 3.4(d) , Seller shall, on the terms and subject to the other conditions of this Agreement, at and as of the Part 2 Closing license to Buyer the Patents (the “ Licensed Patents ”) pursuant to the Patent License, free and clear of all Encumbrances except for Permitted Encumbrances.

     (b)  Excluded Assets . For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, the Purchased Assets shall not include any assets of Seller or its Affiliates not specifically described in Section 2.1(a) .

     2.2 No Liabilities . Buyer shall not assume any Liabilities of Seller.

ARTICLE III

PRICE, PAYMENT AND CLOSING

     3.1 Part 1 Purchase Price . In consideration of the sale of the Part 1 Assets, at the Part 1 Closing and subject to the conditions set forth herein, Buyer shall pay to Seller an amount (the “ Part 1 Purchase Price ”) equal to Two Million Two Hundred and Fifty Thousand Dollars ($2,250,000) payable in cash by wire transfer of immediately available funds.

     3.2 Part 1 Closing .

     (a) At the Part 1 Closing Seller shall execute (as applicable) and deliver the following items to Buyer:

     (i) a bill of sale substantially in the form of Exhibit A (the “ Bill of Sale ”);

     (ii) [reserved];

     (iii) an Inventory Consignment Agreement substantially in the form of Exhibit B (the “ Consignment Agreement ”);

     (iv) a Contingent Transition Agreement substantially in the form of Exhibit C (the “ Transition Agreement ”);

     (v) a letter specifying the payoff amount with respect to indebtedness owed by Seller pursuant to the Credit and Security Agreement, dated as of June 30, 2006, by and among Seller, the various financial institutions party thereto and Merrill Lynch Capital (the “ Credit Agreement ”);

     (vi) a certificate of Seller’s Secretary certifying as to Seller’s certificate of incorporation, bylaws, board of directors’ resolutions authorizing the transactions contemplated by this Agreement and the Related Agreements and as to the incumbency of the officers of Seller executing this Agreement, the Related Agreements and any documents contemplated thereby; and

     (vii) such other documents and instruments as may be reasonably necessary to effect or evidence the transactions contemplated by this Agreement and the Related Agreements.

     (b) At the Part 1 Closing, Buyer shall execute (as applicable) and deliver the following items to Seller:

     (i) the Part 1 Purchase Price, in full, by wire transfer of immediately available funds pursuant to the following wire transfer instructions:

Amount:		$  2,250,000
Bank Name:		State Street Bank and Trust Company
ABA/Routing#:		011000028
Account #:		17039843
Account Name:		MiddleBrook Pharmaceuticals, Inc.
Ref:		Attention: Kevin Hughes
		For credit to: DE1715

     (ii) the Bill of Sale;

     (iii) the Consignment Agreement;

     (iv) the Transition Agreement;

     (v) a certificate of Buyer’s Secretary certifying as to Buyer’s certificate of incorporation, bylaws, board of directors’ resolutions authorizing the transactions contemplated by this Agreement and the Related Agreements and as to the incumbency of the officers of Buyer executing this Agreement, the Related Agreements and any documents contemplated thereby; and

     (vi) such other documents and instruments as may be reasonably necessary to effect or evidence the transactions contemplated by this Agreement and the Related Agreements.

     (c) [reserved]

     3.3 Part 2 Purchase Price . In consideration of the license of the Licensed Patents, at the Part 2 Closing and subject to the conditions set forth herein, the Buyer shall pay to the Seller an amount (the “ Part 2 Purchase Price ”) equal to Two Million Dollars ($2,000,000) payable in cash by wire transfer of immediately available funds.

     3.4 Part 2 Purchase Conditions and Closing .

     (a) Seller shall have the right to require Buyer to license the Licensed Patents, subject to the conditions precedent set forth in Sections 3. 4(b) and 3.4(c) , by delivering a written notice thereof to Buyer substantially in the form of Exhibit D (the “ Part 2 Notice ”) on any day that is a Business Day on or prior to June 30, 2008. The Part 2 Notice shall specify a Part 2 Closing Date not earlier than five (5), and not later than thirty (30), Business Days after delivery of the Part 2 Notice. The Part 2 Notice shall constitute a binding obligation of the Buyer and Seller to license the Licensed Patents pursuant to the terms and conditions of this Agreement.

     (b) The obligation of the parties to license the Licensed Patents shall be subject to the satisfaction (or waiver, if permissible under applicable Legal Requirements) of the following conditions:

          (i) No Legal Requirement, temporary restraining order, preliminary injunction or permanent injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority shall be in effect enjoining, restraining, preventing or prohibiting the license of the Licensed Patents.

          (ii) Seller shall have delivered the Part 2 Notice to Buyer on or prior to June 30, 2008.

     (c) The obligation of Buyer to license the Licensed Patents shall be subject to the satisfaction (or waiver, if permissible under applicable Legal Requirements) of the following conditions:

     (i) Seller shall have received from the FDA either (A) an approval letter for marketing the Seller’s Amoxicillin PULSYS product, pursuant to the Seller’s New Drug Application number 50-813 or (B) an approvable letter for the Seller’s Amoxicillin

PULSYS product, pursuant to the Seller’s New Drug Application number 50-813 containing only such conditions or requirements that in the reasonable determination of both the Buyer and the Seller, and subject to negotiation between the two parties, are deemed to be acceptable.

     (ii) Each of the representations and warranties of Seller set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all respects, in each case as of the date of this Agreement and as of the Part 2 Effective Time as though made on and as of the Part 2 Effective Time, except where the failure or failures to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

     (iii) Seller shall have performed in all material respects all obligations and complied with all covenants required to be performed by it under this Agreement at or prior to the Part 2 Closing.

     (iv) No event or events shall have occurred or circumstance or circumstances exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect with respect to (A) the Seller’s business of developing, manufacturing, distributing, marketing, selling and using the Products or (B) the Seller.

     (d) The obligation of Seller to license the Licensed Patents shall be subject to the satisfaction (or waiver, if permissible under applicable Legal Requirements) of the following conditions:

     (i) Each of the representations and warranties of Buyer set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct in all respects, in each case as of the date of this Agreement and as of the Part 2 Effective Time as though made on and as of the Part 2 Effective Time, except where the failure or failures to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

     (ii) Buyer shall have performed in all material respects all obligations and complied with all covenants required to be performed by it under this Agreement at or prior to the Part 2 Closing.

     (e) At the Part 2 Closing Seller shall execute (as applicable) and deliver the following items to Buyer:

     (i) [reserved];

     (ii) a license of the Licensed Patents in the form of Exhibit E (the “ Patent License ”);

     (iii) a Patent Sublicense Agreement in the form of Exhibit F (the “ Patent Sublicense ”);

     (iv) a certificate of Seller’s Secretary certifying as to Seller’s certificate of incorporation, bylaws, board of directors’ resolutions of Seller’s authorizing the transactions contemplated by the Part 2 Closing and as to the incumbency of the officers of Seller executing the documents to be executed by Seller at the Part 2 Closing;

     (v) a certificate, executed by Seller’s chief executive officer or president, certifying to the matters set forth in Sections 3. 4(c)(ii) - (iv) ; and

     (vi) such other documents and instruments as may be reasonably necessary to effect or evidence the transactions contemplated by this Agreement to occur at the Part 2 Closing.

     (f) At the Part 2 Closing Buyer shall execute (as applicable) and deliver the following items to Seller:

     (i) the Part 2 Purchase Price, in full, by wire transfer of immediately available funds pursuant to an account Seller shall designate in writing to Buyer at least two (2) Business Days prior to the Part 2 Closing Date;

     (ii) the Patent Sublicense;

     (iii) a certificate of Buyer’s Secretary certifying as to Buyer’s certificate of incorporation, bylaws, board of directors’ resolutions authorizing the transactions contemplated by the Part 2 Closing and as to the incumbency of the officers of Buyer executing the documents to be executed by Buyer at the Part 2 Closing;

     (iv) a certificate, executed by Buyer’s chief executive officer or president, certifying to the matters set forth in Sections 3. 4(d)(i) and 3. 4(d)(ii) ; and

     (v) such other documents and instruments as may be reasonably necessary to effect or evidence the transactions contemplated by this Agreement to occur at the Part 2 Closing.

     (g) [reserved]

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLER

     Seller represents and warrants to Buyer that:

     4.1 Organization . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of its organization. Seller has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as is now being conducted.

     4.2 Authority; Enforceability . Seller has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance of all of its obligations hereunder have been duly authorized by Seller. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally.

     4.3 No Violation; Enforceability . The signing, delivery and performance of this Agreement by Seller is not prohibited or limited by, and will not result in the breach of or a default under, any provision of the certificate of incorporation, bylaws or other formation documents of Seller, or of any material agreement or instrument binding on Seller, or of any applicable law, order, writ, injunction or decree of any Governmental Authority, except for such prohibition, limitation or default as would not prevent consummation by Seller of the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Seller, and Seller’s compliance with the terms and provisions hereof, do not and will not conflict with or result in a breach of any of the terms and provisions of or constitute a default, with or without the passage of time and the giving of notice, under any Contract or other instrument or obligation binding or affecting the Purchased Assets.

     4.4 No Proceedings . Except as set forth on Schedule 4.4 , there is no action, suit, litigation, Proceeding, claim, governmental investigation or administrative action pending or, to Seller’s Knowledge, threatened, directly or indirectly involving the Products or Purchased Assets or the transactions contemplated hereby or Seller’s ability to perform its obligations hereunder. Seller is not a party or subject to or in default under any material judgment, order, injunction or decree of any Governmental Authority or arbitration tribunal applicable to Seller, the Products or the Purchased Assets. To Seller’s Knowledge, no recalls, withdrawals or post-sale warnings with respect to the Products have been required by any Governmental Authority or made voluntarily by Seller.

     4.5 Financial Condition . No insolvency Proceeding of any character, including, without limitation, bankruptcy, receivership, reorganization, composition or arrangement with creditors, voluntary or involuntary, has been commenced by or against Seller or any of its assets or properties, nor, to Seller’s Knowledge, is any such Proceeding threatened. Seller does not contemplate and has not taken any action in contemplation of the institution of any such insolvency Proceedings.

     4.6 Brokers, Etc . No broker, investment banker, agent, finder or other intermediary acting on behalf of Seller or under the authority of Seller is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee directly or indirectly in connection with any of the transactions contemplated hereby.

     4.7 Title . (i) Except for encumbrances arising from the Credit Agreement, which encumbrances shall be terminated in connection with the Part 1 Closing, Seller is the sole and exclusive owner of the Purchased Assets and has the unencumbered right to convey all of the Purchased Assets; (ii) no licenses have been granted to any third party under any of the

Purchased Assets (other than licenses granted pursuant to this Agreement or the Related Agreements); and (iii) the Purchased Assets are subject to no Encumbrances other than the rights of Buyer hereunder and Permitted Encumbrances.

     4.8 Purchased Assets; Products .

     (a) Seller’s operation of the Purchased Assets and marketing, sale and distribution of the Products has been, and as of the Closing Date is or will be (as applicable), in compliance in all material respects with the Act and other comparable state and local statutes, rules and regulations applicable to the Products. To Seller’s Knowledge, there are no adverse effects from the use of any of the Products that are not disclosed in the package insert for such Product.

     (b) Except as set forth on Schedule 4.8 , there are no pending or, to Seller’s Knowledge, threatened actions, Proceedings or complaints by any Governmental Authority related to Seller or, to Seller’s Knowledge, any third party manufacturers that would, in either case, prohibit or adversely affect the manufacture, promotion, sale and/or distribution of the Products.

     (c) Except as set forth on Schedule 4.8 , Seller has not received any written notification (i) from the FDA alleging that any Product is misbranded or adulterated as defined in the Act, (ii) from the FDA or any other applicable Governmental Authority contesting the approval, uses, labeling or promotion of a Product or (iii) otherwise alleging any violation by Seller of any Legal Requirement in connection with any Product.

     4.9 Patents . Schedule 4.9 lists all patents owned, applied for, related to or used by Seller in connection with the manufacture, sale or development of the Products. Each Licensed Patent is in full force and effect, all fees necessary to maintain the Licensed Patents have been paid in full when due, and there are currently no maintenance fees due for any of the Licensed Patents. There has been no action by the United States Patent and Trademark Office to reexamine, terminate or cancel any Licensed Patent or to decline to issue any Licensed Patent that has not been issued. The Seller has not granted any license under any of the Licensed Patents to develop, make, have made, import, offer for sale or sell Products other than the license pursuant to Section 3. 4(e)(ii) . To the Seller’s Knowledge, no Person (i) has claimed that any Licensed Patent is invalid or unenforceable or (ii) is currently infringing any of the Licensed Patents. The conduct of the Seller’s business, as currently conducted, does not and, to the Seller’s Knowledge, will not infringe any valid claim of any Patent. To the Seller’s Knowledge, the conduct of the Seller’s business, as currently planned to be conducted, will not infringe any valid claim of any Patent.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF BUYER

     5.1 Organization . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the state of its organization. Buyer has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as is now being conducted.

     5.2 Authority; Enforceability . Buyer has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance of all of its obligations hereunder have been duly authorized by Buyer. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or ot