MIDDLEBROOK PHARMACEUTICALS, INC.
Exhibit
10.1
XXXXXXXXXXX
PHARMACEUTICALS, INC.
FIRST
AMENDMENT
TO
THIS
FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) is made as
of November 19, 2007 (the “Effective Date”) by and between Xxxxxx X. Xxxxxx,
Ph.D., (the “Employee”), and XxxxxxXxxxx 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
payment shall be made in an amount equal to the
excess of
(i) the present value of the Salary that the Employee would have
earned if
the Employee had continued working for the Company during the twenty-four
(24) month period immediately following the Employee’s date of
termination, 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 Code, over
(ii) the 2007 Payment. In the event of the termination of the Employee’s
employment under Section 8.3 after the Company’s final payroll date in
2007, the Employee shall be entitled to receive one lump sum payment
within sixty (60) days of such termination, but in no event earlier
than
January 1, 2008, in an amount equal to the present value of the Salary
that the Employee would have earned if the Employee had continued
working
for the Company during the twenty-four (24) month period immediately
following the Employee’s date of termination, 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 Code of 1986.
Any
payments under this Section 8.4(a) shall be shall be considered separate
payments for purposes of Section 409A of the Code and shall be subject
to
all applicable withholding obligations for tax
purposes.”
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“(a) In
the event of the termination of the Employee’s employment under Section
8.3, the Employee shall be entitled to receive severance pay in the
amount
of twenty-four (24) months of Salary, calculated on the basis of
the
Salary in effect of the Employee’s date of termination, and paid in the
same manner as Salary was then paid hereunder, but in no case shall
payments be made after December 31 of the second calendar year following
the year of the Employee’s termination. Such payments shall be considered
separate payments for purposes of Section 409A of the Code and shall
be
subject to all applicable withholding obligations for tax
purposes.”
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4. Section
8.4(b) of the Employment Agreement is hereby amended in its entirety to be
and
read as follows:
“In
the
event of the termination of the Employee’s employment under Section 8.3, the
Employee shall be entitled to receive all Benefits to which he was entitled
on
the date preceding his/her termination for a period of twenty-four (24)
additional months following termination, made in accordance with any terms
applicable to such Benefits; provided, however, that to the extent the foregoing
right constitutes a deferral of compensation under Section 409A of the Code,
the
provision of Benefits to the Employee, or a reimbursement paid to the Employee
for the cost of such Benefits, shall satisfy the following additional
requirements: (i) the Benefits provided or amounts reimbursed in one calendar
year shall not affect the Benefits provided or amounts reimbursed for other
calendar years, (ii) any reimbursement payments made to the Employee with
respect to Benefits shall in all events be made no later than the end of the
calendar year following the calendar year in which the applicable expense is
incurred, and (iii) the right to receive such Benefits or a reimbursement with
respect to such Benefits is not subject to liquidation or exchange for other
benefits or amounts.”
5. In
all
other respects, the Employment Agreement shall remain in full force and
effect.
IN
WITNESS WHEREOF, the Employee and the Company have caused this Amendment to
be
executed on this 19th
day of
November, 2007.
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Employee
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XxxxxxXxxxx
Pharmaceuticals, Inc.
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/s/
Xxxxxx X. Xxxxxx
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By:
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/s/
Xxxxxx X. Low
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Xxxxxx
X. Xxxxxx, Ph.D.
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Xxxxxx
X. Low
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Vice
President & CFO
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