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Exhibit 10.1
MIDDLEBROOK PHARMACEUTICALS, INC.
FIRST
AMENDMENT
TO
EXECUTIVE
EMPLOYMENT AGREEMENT
THIS
FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this
“Amendment”) is made as of November 19, 2007 (the
“Effective Date”) by and between Edward M. Rudnic,
Ph.D., (the “Employee”), and MiddleBrook
Pharmaceuticals, Inc., a corporation organized and existing
under the laws of the State of Delaware and formerly known as
Advancis Pharmaceutical Corporation (the
“Company”).
WHEREAS,
the Employee and the Company are parties to an executive
Employment Agreement, dated January 7, 2000 (the
“Employment Agreement”); and
NOW,
THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the sufficiency of which is
hereby acknowledged, and intending to be legally bound, the
parties, subject to the terms and conditions set forth herein,
agree as follows, effective as of the Effective
Date:
1.
All
capitalized terms used herein and not otherwise defined have
the meanings set forth in the Employment
Agreement.
2.
The
word “termination” as used throughout the
Employment Agreement with respect to the Employee’s
employment hereby refers to a “separation from
service” by the Employee from the Company, as defined by
Treasury Regulation §1.409A-1(h).
3.
Section
8.4(a) of the Employment Agreement is hereby deleted in its
entirety and replaced with one of the following sections below
as selected by the Employee:
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“(a)
In
the event of the termination of the Employee’s employment
under Section 8.3 on or prior to the company’s final payroll
date in 2007, the Employee shall be entitled to receive a lump sum
payment within sixty (60) days of such termination, but in no event
later than December 31, 2007 (the “2007 Payment”), in
an amount equal to the present value of the remaining Salary that
the Employee would have earned for the remainder of 2007 if the
Employee had continued working for the Company during the remainder
of 2007, where such present value is to be determined using a
discount rate equal to the applicable short-term federal rate
prescribed under Section 1274(d) of the Internal Revenue Code of
1986, as amended (the “Code”); if such 2007 Payment is
made, then on January 1, 2008, another lump sum paym
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