MIDDLEBROOK PHARMACEUTICALS, INC.
Exhibit
10.4
XXXXXXXXXXX
PHARMACEUTICALS, INC.
SECOND
AMENDMENT
TO
THIS
SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) is made as
of November 19, 2007 (the “Effective Date”) by and between Xxxx X. Xxxxxxxx,
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 August 13, 2003 (the “Employment Agreement”); and
WHEREAS,
the Employee and the Company are also parties to a First Amendment to an
Executive Employment Agreement, dated September 7, 2005.
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 as selected below by the Employee:
| x |
“(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 form
of a
lump sum payment within sixty (60) days of such termination, 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
[twelve
(12)]
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 Internal Revenue Code of 1986, as amended (the “Code”). Such
payment shall be subject to all applicable withholding obligations
for tax
purposes.”
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| o |
“(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 an amount
equal
to [twelve
(12)]
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. 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 [twelve
(12)]
additional months following termination, made in accordance with any terms
applicable to such Benefits. The provision of such Benefits is intended to
be
exempt from Section 409A of the Code. Accordingly, any reimbursement paid to
the
Employee for the cost of such Benefits shall be made no later than the December
31st of the second calendar year following the calendar year in which such
termination of employment occurs.””
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/
Xxxx X. Xxxxxxxx
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By:
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/s/
Xxxxxx X. Xxxxxx
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Xxxx
X. Xxxxxxxx, Ph.D.
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Xxxxxx
X. Xxxxxx, Ph.D.
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President
& CEO
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