##### Table of Contents



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549
 Form 10-K/A
 (Amendment No. 1)
  þ
    
    ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 For the fiscal year ended December 31, 2009
 OR
 o
    
    TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 For the transition period from  to
 Commission File Number: 000-50414
 MIDDLEBROOK PHARMACEUTICALS, INC.
 (Exact Name of Registrant as Specified in Its Charter)
 Delaware(State or Other Jurisdiction of 
Incorporation or Organization)
    
    52-2208264(I.R.S. Employer
Identification Number)7 Village Circle, Suite 100
    
    76262Westlake, Texas
    
    (Zip Code)(Address of Principal Executive Offices)
 (Registrants Telephone Number, Including Area Code): (817) 837-1200
 Securities registered pursuant to Section 12(b) of the Act:
 Title of each class
    
    Name of each exchange on which registeredCommon Stock, par value $0.01 per share
    
    NASDAQ Global Market
 Securities registered pursuant to Section 12(g) of the Act:
 Yes o No þ
 Yes o No þ
 þ o
 o o
 þ
  Large accelerated filer o
    
    Accelerated filer þ
    
    Non-accelerated filer o
    
    Smaller reporting company o(Do not check if a smaller reporting company)
 o þ




---



##### 



MIDDLEBROOK PHARMACEUTICALS, INC.
INDEX
FORM 10-K
 PageExplanatory Note
    
    
    3PART IIIItem 10. Directors, Executive Officers and Corporate Governance
    
    
    4Item 11. Executive Compensation
    
    
    7Item 12. Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
    
    
    20Item 13. Certain Relationships and Related Transactions, and Director Independence
    
    
    22Item 14. Principal Accountant Fees and Services
    
    
    23PART IVItem 15. Exhibits and Financial Statement Schedules
    
    
    24SIGNATURES
    
    
    25EXHIBITS
    
    
    26Exhibit 31.2
   2




---



##### Table of Contents



EXPLANATORY NOTE
     3




---



##### Table of Contents



PART III
 
 Item 10. Directors, Executive Officers and Corporate Governance
 Directors and Executive Officers
  Name
    
    Age
    
    
    Position(s)David Becker
    
    
    43
    
    
    Executive Vice President, Chief Financial Officer, and
Acting President and Chief Executive OfficerBrad Cole
    
    
    42
    
    
    Senior Vice President, General Counsel and SecretaryTimothy L. Miller
    
    
    53
    
    
    Senior Vice President, Sales Operations & AdministrationDonald J. Treacy, Ph.D.
    
    
    40
    
    
    Senior Vice President, Development & Manufacturing OperationsR. Gordon Douglas, M.D.
    
    
    76
    
    
    Chairman of the Board of DirectorsLord James Blyth
    
    
    69
    
    
    Vice Chairman of the Board of DirectorsRichard W. Dugan
    
    
    68
    
    
    DirectorWilliam C. Pate
    
    
    46
    
    
    DirectorMark R. Sotir
    
    
    46
    
    
    Director
 David Becker
 Brad Cole cum laude with honors,
 Timothy L. Miller
  4




---



##### Table of Contents



Donald J. Treacy, Ph.D.
 R. Gordon Douglas, M.D.
  Lord James Blyth
  Richard W. Dugan
  William C. Pate EGI Transaction
  5




---



##### Table of Contents



Mark R. Sotir
  Section 16(a) Beneficial Ownership Reporting Compliance
  Director Nominations Process
  Audit Committee
   
    
    the integrity of our financial statements and other financial information provided by us to our stockholders;
    
    the proposed scope and results of the audit by our independent registered public accounting firm;
    
    retention of our independent registered public accounting firm, including oversight of the terms of their
engagement and their performance, qualifications and independence;
    
    permissible audit and non-audit services and the fees paid for such services;
    
    the performance of our internal controls and disclosure controls;
    
    review and ratification of any related party transactions pursuant to our policy on such matters;
    
    compliance with our ethical policies and legal and regulatory requirements; and
    
    receipt, retention and treatment of complaints regarding accounting and auditing matters.
  6




---



##### Table of Contents



Item 11. Executive Compensation
 Compensation Discussion and Analysis
  
    
    our former President and Chief Executive Officer, John Thievon;
    
    our Executive Vice President, Chief Financial Officer and Acting President and Chief
Executive Officer, David Becker;
    
    our three other most highly-paid executives:
 
    
    Brad Cole, our Senior Vice President, General Counsel and Secretary;
    
    Timothy L. Miller, our Senior Vice President, Sales Operation and Administration;
    
    Donald J. Treacy, Ph.D., our Senior Vice President, Development and Manufacturing Operations; and
 
    
    two additional executive officers whose employment terminated prior to the end of calendar year 2009:
 
    
    Beth A. Burnside, Ph.D., our former Senior Vice President,
Regulatory Affairs, Compliance & Strategic Planning; and
    
    Frank Koos, our former Senior Vice President, Sales & Marketing.
 Executive Summary
  
    
    In 2009, our named executive officers received cash compensation in the form of base
salary and, in 2010, did not receive any raises from their 2009 annual compensation.
    
    In 2009, our named executive officers did not receive annual cash bonuses, with the
exception of Mr. Koos, who received a cash bonus based upon certain criteria that were
established as part of his original new hire package.
    
    In 2009, we did not grant equity awards to our named executive officers.
 Streptococcus
pyogenes
 EGI Transaction
   7




---



##### Table of Contents



Executive Compensation Philosophy
  
    
    promote the Companys ability to successfully attract and retain highly qualified and
motivated executives;
    
    provide compensation levels and programs that were competitive with comparably sized
pharmaceutical and biotechnology companies across the U.S.;
    
    align the interests of executives with stockholders; and
    
    reward executives with incentives that were closely linked to a balance of the
Companys short- and long-term performance goals.
  Pay for performance :
 Competitive compensation :
 Compensation Program Design and Process
  Compensation Committee
  Role of Compensation Consultant
  Role of Company Management
   8




---



##### Table of Contents



Benchmarking and Use of Peer Group Data
    Alkermes Inc.
    
    Cubist
Pharmaceuticals
Inc.
    
    Acorda Therapeutics
Inc.
    
    ViroPharma
IncorporatedInterMune Inc.
    
    CV Therapeutics Inc.
    
    Vivus Inc.
    
    Pozen Inc.Enzon
Pharmaceuticals
Inc.
    
    Durect Corporation
    
    Omrix
Biopharmaceuticals
Inc.
    
    Noven
Pharmaceuticals
Inc.
   Elements of Executive Compensation in 2009
  Base Salaries
  th
  9




---



##### Table of Contents



th
 th
  Annual Cash Incentive Bonuses
  Target bonus levels and benchmarking. th th
 Elements of Bonus.
 Performance Goals  Corporate Objectives.
 Description
    
    Relative WeightGoal #1 MOXATAG
    
    Achieve approximately 98,000
prescriptions of MOXATAG for
the month ended 12/31/09
    
    
    60
    %Goal #2: Net Sales
    
    Combined
MOXATAG®
and KEFLEX® net
factory sales of at least
$45 million
    
    
    10
    %Goal #3: Working Capital
    
    Working Capital Balance of
$28 million (defined as cash
plus accounts receivable
plus inventory, less line of
credit debt and accounts
payable)
    
    
    25
    %Goal #4: Research and
Development
    
    Advance the development of
KEFLEX Pulsys product
candidate to be prepared to
enter into a Phase III
clinical trial in the first
quarter of 2010
    
    
    5
    %
  10




---



##### Table of Contents



Performance Goals  Individual Objectives.
 
    
    Mr. Cole:
 
    
    Work with various departments to establish training and on-going policies and procedures for the sales
organization. (Links to corporate objective # 1)
    
    Work to lower law firm fees. (Links to corporate objective # 3)
    
    Obtain subtenants or alternate tenants for a significant portion of the Maryland Buildings. (Links to
corporate objective # 3)
    
    Update and revise all corporate governance policies and practices. (Links with corporate objective-
N/A)
    
    Work with manufacturing and regulatory to negotiate agreements with a new KEFLEX manufacturing site.
(Links to corporate objectives # 2 and 4)
 
    
    Mr. Koos:
 
    
    Develop and deploy the appropriate sales force strategy and tactics to
achieve revenue and prescription goals for MOXATAG and KEFLEX. (Links to corporate
objectives #1 and 2)
    
    Develop appropriate marketing strategy and tactics to ensure prescription
generation in line with forecast for MOXATAG and KEFLEX. (Links to corporate
objectives # 1 and 2)
    
    Manage all sales and marketing spend to achieve target budget for 2009.
(Links to corporate objective #3)
    
    Identify and develop business development opportunities in line with
corporate objectives. (Links to corporate objective #1-3)
 
    
    Mr. Miller:
 
    
    Manage successful on-boarding and training of new sales force and
successful launch preparation for MOXATAG including physician targeting, territory
alignment, etc. (Links to corporate objective #1)
    
    Create and manage MOXATAG and KEFLEX 750 performance metrics and
monitoring package using IMS Xponent Weekly, NPA, and PlanTrak information including
the sales incentive plan. (Links to corporate objective #2)
    
    Manage successful implementation of the developed MOXATAG managed markets
strategy with consultants focused on the top 55 commercial plans identified and the
top 15 state Medicaid programs. (Links to corporate objective #2)
    
    Successfully implement all sales force supporting programs and tools
including SFA, promotional guideline adherence, fleet, promotional material
handling, data analytics, sample accountability, convention support, etc. (Links to
corporate objectives #1 and 2)
    
    Manage all assigned expense budgets to at or below approved levels and
ensure all investments are in line with MOXATAG and KEFLEX 750 objectives. (Links to
corporate objective #2)
 
    
    Dr. Treacy:
 
    
    Manufacture and deliver MOXATAG physician samples and trade product to
meet launch goals and market demand; assuming go decision, make ready 10-count
dose-pack for launch. (Links to corporate objectives #1 and 2)
    
    Ensure amoxicillin raw material supply by acquiring material from
existing site to meet production forecast through alternate supply approval, and
complete necessary activities for United States Food and Drug Administration, or
FDA submission of an alternate raw material supplier by end of year. (Links to
corporate objectives #1 and 2)
    
    Complete agreement for new KEFLEX manufacturing site on favorable terms.
Complete necessary activities for FDA submission by end of year. Assuming
availability of funds, complete site transfer and formulation
development activities for clinical trial material manufacture readiness by end of
year. (Links to corporate objectives #2-4)
    
    Complete evaluation and recommendation for MOXATAG manufacturing capacity
to ensure sufficient supply for future demand. (Links to corporate objective # n/a)
  11




---



##### Table of Contents




    
    Dr. Burnside:
 
    
    Ensure Quality Systems and Personnel in place for successful validation
and release of MOXATAG. (Links to corporate objectives #1 and 2)
    
    Ensure Regulatory Requirements and filings are done in a timely fashion
for MOXATAG, KEFLEX and KEFLEX PULSYS. For example, the following major documents
will be filed this year: KEFLEX annual report, MOXATAG annual report, KEFLEX PULSYS
briefing packet, and a variety of other filings. (Links to corporate objectives #1,
2 and 4)
    
    Manage intellectual property activities, coordinating with outside
counsel and Company General Counsel as appropriate to maintain a competitive
position in the market for MiddleBrook products. (Links to corporate objectives #
1-4)
    
    Coordinate with Sales and Marketing to ensure promotional materials are
reviewed in a timely manner and are in compliance with regulations. (Links to
corporate objectives #2 and 3)
    
    Identify improvements in efficiency in the Regulatory Affairs, Compliance
and IP departments to contribute to 2009 budget goals. (Links to corporate objective
3)
    
    Identify improvements in efficiency in the Regulatory Affairs, Compliance
and intellectual property departments to contribute to 2009 budget goals. (Links to
corporate objective #3)
 Determination of Bonus Payments; 2009 Actual Bonus Amounts.
 Actual Bonus Levels
 Mr. Koos Bonus Award.
 Long Term Incentives  Equity Awards
   12




---



##### Table of Contents



Equity Incentive Grant Mechanics and Timing.
    Other Elements of Compensation
 Severance Benefits Estimated Payments and Benefits Upon Termination or
Change-in-Control
 Other Benefits.
  Material Changes for 2010
   13




---



##### Table of Contents



Compensation Committee Report
  
 Summary Compensation Table
  Salary
    
    
    
    
    
    
    Option Awards
    
    
    All OtherCompensation
    
    
    TotalName and Principal Position
    
    Year
    
    
    ($)(1)
    
    
    Bonus ($)
    
    
    ($)(2)
    
    
    ($)(3)
    
    
    ($)John Thievon(4)
    
    
    2009
    
    
    
    500,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    500,000Former President, Chief Executive Officer and Director
    
    
    2008
    
    
    
    159,295
    
    
    
    
    
    
    
    3,475,970
    
    
    
    90,705
    
    
    
    3,725,970David Becker(5)
    
    
    2009
    
    
    
    400,000
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    400,000Executive Vice President, Chief Financial Officer, and Acting
President and Chief Executive Officer
    
    
    2008
    
    
    
    127,436
    
    
    
    
    
    
    
    2,703,533
    
    
    
    72,564
    
    
    
    2,903,533Brad Cole (6)
    
    
    2009
    
    
    
    265,000
    
    
    
    
    
    
    
    
    
    
    
    11,725
    
    
    
    276,725Senior Vice President, General Counsel
and SecretaryTimothy L. Miller (6)
    
    
    2009
    
    
    
    250,000
    
    
    
    
    
    
    
    
    
    
    
    84,372
    
    
    
    334,372Senior Vice President, Sales
Operations and AdministrationDonald J. Treacy, Ph.D.
    
    
    2009
    
    
    
    270,400
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    270,400Senior Vice President,
    
    
    2008
    
    
    
    268,667
    
    
    
    30,420
    
    
    
    411,540
    
    
    
    
    
    
    
    710,627Development and Manufacturing
    
    
    2007
    
    
    
    242,289
    
    
    
    97,500
    
    
    
    95,150
    
    
    
    
    
    
    
    434,939OperationsBeth A. Burnside Ph.D. (7)
    
    
    2009
    
    
    
    270,400
    
    
    
    
    
    
    
    
    
    
    
    312,644
    
    
    
    583,044Former Senior Vice President,
    
    
    2008
    
    
    
    268,667
    
    
    
    30,420
    
    
    
    421,840
    
    
    
    
    
    
    
    720,927Regulatory
Affairs, Compliance & Strategic Planning
    
    
    2007
    
    
    
    243,655
    
    
    
    97,500
    
    
    
    86,500
    
    
    
    
    
    
    
    427,655Frank Koos (6)(8)
    
    
    2009
    
    
    
    250,000
    
    
    
    113,000
    (9)
    
    
    
    
    
    
    286,556
    
    
    
    649,556Former Senior Vice President, Sales
and Marketing
 (1)
    
    Officer salaries are typically set for the period from March 1st through February 28th of the following year.(2)
    
    Reflects the aggregate grant date fair value of option awards granted by the Company in the applicable year,
determined in accordance with Financial Accounting Standards Board ASC Topic 718 Stock Compensation, or FASB
ASC Topic 718. See Note 17 in the Companys Annual Report on Form 10-K for the year ended December 31,
2009 for a discussion of assumptions made in the valuation of the option awards.  14




---



##### Table of Contents



(3)
    
    Additional information regarding amounts disclosed in the All Other Compensation column for 2009 is set forth below.(4)
    
    Mr. Thievon resigned from the position of President and Chief Executive Officer and from the Board, effective March 15, 2010.(5)
    
    Mr. Becker was named the acting President and Chief Executive
Officer, in addition to his duties as Executive Vice President and
Chief Financial Officer, effective March 15, 2010.(6)
    
    Messrs. Cole, Koos and Miller became named executive officers in 2009.(7)
    
    Dr. Burnsides employment terminated on December 4, 2009. Additional
information regarding Dr. Burnsides severance is set forth below in
the table titled All Other Compensation  2009.(8)
    
    Mr. Kooss employment terminated on December 3, 2009. Additional
information regarding Mr. Koos severance is set forth below in the
table titled All Other Compensation  2009.(9)
    
    Reflects a bonus paid in connection in connection with Mr. Koos
commencement of employment, as described in the Compensation
Discussion and Analysis. All Other Compensation  2009
 Pro-rata
    
    
    
    
    
    
    Moving and
    
    
    Temporary
    
    
    TaxAccrued/Unpaid
    
    
    Health & Welfare
    
    
    Relocation
    
    
    Living
    
    
    Gross-Name and Principal Position
    
    Severance
    
    
    Vacation
    
    
    Benefits
    
    
    Expenses
    
    
    Expenses
    
    
    UpJohn Thievon
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    David Becker
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Brad Cole (a)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    2,695
    
    
    
    7,870
    
    
    
    1,160Timothy L. Miller (b)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    78,649
    
    
    
    
    
    
    
    5,723Donald J. Treacy, Ph.D.
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Beth A. Burnside Ph.D.
    
    
    269,403
    
    
    
    29,857
    
    
    
    13,384
    
    
    
    
    
    
    
    
    
    
    
    Frank Koos
    
    
    249,078
    
    
    
    27,005
    
    
    
    10,473
    
    
    
    
    
    
    
    
    
    
    
    
 (a)
    
    Includes expenses associated with Mr. Coles move to Texas during 2009, and the associated gross-up of taxes.(b)
    
    Includes the expenses associated with the sale of Mr. Millers New Jersey home, the acquisition of his Texas
home and the associated gross-up of taxes. Additionally, the Company paid Mr. Millers moving costs in
connection with his move to Texas. 2009 Grants of Plan-Based Awards Table
  Estimated Future Payouts UnderNon-Equity Incentive Plan Awards (1)Threshold
    
    
    Target
    
    
    MaximumName
    
    ($)
    
    
    ($)
    
    
    ($)Mr. Thievon
    
    
    247,500
    
    
    
    275,000
    
    
    
    550,000Mr. Becker
    
    
    162,000
    
    
    
    180,000
    
    
    
    360,000Mr. Cole
    
    
    71,550
    
    
    
    79,500
    
    
    
    159,000Mr. Miller
    
    
    67,500
    
    
    
    75,000
    
    
    
    150,000Dr. Treacy
    
    
    73,008
    
    
    
    81,120
    
    
    
    162,240Dr. Burnside
    
    
    73,008
    
    
    
    81,120
    
    
    
    162,240Mr. Koos
    
    
    67,500
    
    
    
    75,000
    
    
    
    150,000
 (1)
    
    Reflects threshold, target and maximum payout levels under our 2009 annual bonus program.
Payouts under the annual incentive plan were to begin when 90% of the performance
targets had been met. The maximum payout may have been achieved if 200% of
the performance targets had been met. For more information, please see the description
of our annual bonus program contained in the Compensation Discussion and Analysis. No annual
bonuses were paid in 2009.  15




---



##### Table of Contents



Outstanding Equity Awards at 2009 Fiscal Year-End Table
  Option AwardsNumber of Securities
    
    
    Number of SecuritiesUnderlying Unexercised
    
    
    Underlying UnexercisedOptions
    
    
    Options
    
    
    Option
    
    
    Option(#)
    
    
    (#)
    
    
    Exercise Price
    
    
    ExpirationName
    
    Grant Date
    
    
    Exercisable
    
    
    Unexercisable
    
    
    ($)
    
    
    DateMr. Thievon
    
    
    09/05/2008
    
    
    
    787,130
    
    
    
    1,731,689
    (3)
    
    
    2.06
    
    
    
    9/4/2018Mr. Becker
    
    
    09/05/2008
    
    
    
    612,213
    
    
    
    1,346,869
    (3)
    
    
    2.06
    
    
    
    9/4/2018Mr. Cole
    
    
    09/05/2008
    
    
    
    101,563
    
    
    
    223,437
    (3)
    
    
    2.06
    
    
    
    9/4/2018Mr. Miller
    
    
    09/05/2008
    
    
    
    101,563
    
    
    
    223,437
    (3)
    
    
    2.06
    
    
    
    9/4/2018Dr. Treacy
    
    
    10/16/2003
    
    
    
    10,928
    
    
    
    
    (2)
    
    
    10.00
    
    
    
    10/15/20132/25/2004
    
    
    
    50,000
    
    
    
    
    (2)
    
    
    8.45
    
    
    
    2/24/20141/24/2005
    
    
    
    50,000
    
    
    
    
    (2)
    
    
    4.05
    
    
    
    1/23/20151/25/2006
    
    
    
    23,957
    
    
    
    1,043
    (2)
    
    
    1.48
    
    
    
    1/24/20161/24/2007
    
    
    
    40,103
    
    
    
    14,897
    (2)
    
    
    2.47
    
    
    
    1/23/20172/13/2008
    
    
    
    34,380
    
    
    
    40,620
    (2)
    
    
    3.08
    
    
    
    2/13/201809/10/2008
    
    
    
    67,500
    
    
    
    148,500
    (2)
    
    
    1.77
    
    
    
    9/9/2018Dr. Burnside
    
    
    9/2/2003
    
    
    
    24,639
    
    
    
    
    (1)
    
    
    1.41
    
    
    
    9/1/20132/25/2004
    
    
    
    50,000
    
    
    
    
    (2)
    
    
    8.45
    
    
    
    2/24/20141/24/2005
    
    
    
    50,000
    
    
    
    
    (2)
    
    
    4.05
    
    
    
    1/23/20151/25/2006
    
    
    
    37,915
    
    
    
    
    (2)
    
    
    1.48
    
    
    
    1/24/20161/24/2007
    
    
    
    35,416
    
    
    
    
    (2)
    
    
    2.47
    
    
    
    1/23/20172/13/2008
    
    
    
    35,001
    
    
    
    
    (2)
    
    
    3.08
    
    
    
    2/13/201809/10/2008
    
    
    
    63,000
    
    
    
    
    (2)
    
    
    1.77
    
    
    
    9/9/2018Mr. Koos
    
    
    11/28/2008
    
    
    
    81,250
    
    
    
    
    (3)
    
    
    1.31
    
    
    
    11/28/2018
 (1)
    
    Stock option vests 25% on each of the four anniversaries of the grant date, assuming
continued employment on each vesting date.(2)
    
    Stock option vests at the rate of 1/48th of the shares each month from the date of grant,
assuming continued employment on each vesting date.(3)
    
    Stock option vests 25% on the first anniversary and then at the rate of 1/48th of the shares
each month from the first anniversary of the grant date, assuming continued employment on each
vesting date. Option Exercises and Stock Vested Table
   16




---



##### Table of Contents



Potential Payments and Benefits upon Termination or Change-in-Control
  Termination by MiddleBrookWithout Cause (inconnection with a Change inTermination by
    
    
    Control) or Termination byMiddleBrook
    
    
    Executive for Good ReasonFor
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Without Cause
    
    
    following a Potential ChangeCause
    
    
    
    
    
    
    
    
    
    
    Voluntary
    
    
    (Unrelated to a
    
    
    in Control or within 12 monthsTermination
    
    
    Death
    
    
    Disability
    
    
    Termination
    
    
    Change in Control)
    
    
    of a Change in ControlName
    
    (1) ($)
    
    
    ($)
    
    
    ($)
    
    
    ($)
    
    
    (1)(2) ($)
    
    
    (1)(3) ($)Mr. Thievon (9) (10)Cash Severance
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    1,000,000
    
    
    
    1,000,000Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    29,802
    
    
    
    29,802Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    1,029,802
    
    
    
    1,029,802Mr. Becker (10)Cash Severance
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    600,000
    
    
    
    600,000Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    22,352
    
    
    
    22,352Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    622,352
    
    
    
    622,352Mr. ColeCash Severance
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    265,000
    
    
    
    265,000Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    6,367
    
    
    
    6,367Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    271,367
    
    
    
    271,367Mr. MillerCash Severance
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    250,000
    
    
    
    250,000Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    14,151
    
    
    
    14,151Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    264,151
    
    
    
    264,151Dr. Treacy (10)Cash Severance (4)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    269,431
    
    
    
    269,431Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    14,901
    
    
    
    14,901Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    284,332
    
    
    
    284,332Dr. Burnside (7) (10)Cash Severance (4)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    269,403
    
    
    
    Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    13,384
    
    
    
    Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    282,787
    
    
    
    Mr. Koos (8)Cash Severance (4)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    249,078
    
    
    
    Value of Accelerated Options (5)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Health & Welfare Benefits (6)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    10,473
    
    
    
    Total
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    259,551
    
    
    
    
 (1)
    
    For Cause means (i) dishonesty, embezzlement, theft or fraudulent
misconduct; (ii) abuse of a controlled substance that materially
impairs the performance of the employees duties to MiddleBrook;
(iii) conduct adverse to the business, interests, or reputation of
MiddleBrook; (iv) material breach of any of the terms of the
employment agreement or of any agreement between MiddleBrook and
employee (including, but not limited to, terms relating to
non-disclosure, non-competition and invention assignment) which, if
curable, remain uncured 30 days after the employee receives written
notice of such breach; or (v) commission of a felony by employee.  17




---



##### Table of Contents



(2)
    
    Reflects: (i) a cash severance payment equal to a multiple of the
named executive officers base annual salary (in the case of Mr.
Thievon, 2x, in the case of Mr. Becker, 1.5x, and in the case of the
other named executive officers, 1x), payable in a lump sum; and (ii)
Company paid premiums for group health plan coverage for the benefit
of the named executive officer and his or her spouse and dependents
for a period of time following the date of termination (in the case
of Mr. Thievon, two years, in the case of Mr. Becker, one and
one-half years, or in the case of the other named executive officers,
one year).(3)
    
    Change-in-control benefits are paid on a double trigger meaning
that benefits are paid only if the employment of the executive is
terminated by us or our successor without Cause or by the executive
for Good Reason following a Potential Change in Control or during the
12-month period after the change in control. For each named
executive officer, the severance payment and benefits that he would
receive upon a termination without Cause or for Good Reason in
connection with a Change in Control are the same as the severance
payment and benefits that he would receive upon a termination without
cause unrelated to a Change in Control. Change in Control means
(i) any person acquires (other than from MiddleBrook) a 33% or more
ownership interest in the outstanding shares of the securities of the
Company, or the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the election
of directors (the Company Voting Stock); (ii) sale of assets
representing 50% or more of the fair market value of MiddleBrooks
consolidated assets (in a single transaction or in a series of
related transactions); (iii) the dissolution or liquidation of
MiddleBrook; (iv) the incumbent Board of Directors ceases to
constitute a majority of the Board of Directors or (v) the effective
time of any merger, share exchange, consolidation, or other business
combination involving MiddleBrook (excluding certain transactions) if
immediately after such transaction persons who hold a majority of the
outstanding voting securities are not persons who, immediately prior
to such transaction, held a majority of the Company Voting Stock.
Potential Change in Control means (i) MiddleBrook enters into a
definitive agreement, the consummation of which would result in the
occurrence of a Change in Control; or (ii) any person publicly
announces an intention to take actions which, if consummated, would
constitute a Change in Control. Good Reason generally means the
occurrence of any one of the following without the executives
consent: (i) executives relocation from his principal place of
employment by more than thirty-five (35) miles; (ii) any material
diminution in the executives authority, duties or responsibilities;
or (iii) any material reduction in the executives salary or annual
bonus. The executive may terminate for Good Reason only after a
Change in Control or Potential Change in Control.(4)
    
    Adjusted to reflect the present value of the lump sum payout,
determined using a discount rate equal to 0.69, which is the
applicable short-term federal rate for November 2009 (the month prior
to the month in which the executives employment terminated).(5)
    
    Per the terms of each named executive officers stock option
agreements, unvested options accelerate upon the occurrence of a
Change in Control. The value of the options was calculated using
$0.51, the closing price of our common stock on December 31, 2009,
which was the last trading day in calendar 2009. For purposes of this
calculation, outstanding options having an exercise price greater
than the closing price of our common stock on such date have a value
of $0.(6)
    
    Reflects Company-paid COBRA for medical and dental coverage based on
2009 rates for the applicable period (as described in footnote (2)
above).(7)
    
    Dr. Burnsides employment with the Company was terminated effective
December 4, 2009. The amounts in the table reflect the actual
payments Dr. Burnside received in connection with her termination of
employment.  18




---



##### Table of Contents



(8)
    
    Mr. Koos employment with the Company was terminated effective
December 3, 2009. The amounts in the table reflect the actual
payments Mr. Koos received in connection with his termination of
employment.(9)
    
    Mr. Thievon terminated employment on March 15, 2010. In connection
with such termination, he received the severance payments and
benefits reflected under Termination by MiddleBrook Without Cause
(Unrelated to a Change in Control). The cash severance that Mr.
Thievon received was $993,496, which reflects the present value of
the lump sum payout, determined using a discount rate equal to 0.64%.(10)
    
    Each of the employment agreements with Messrs. Thievon and Becker and
Drs. Burnside and Treacy contain a covenant not to compete with the
Company that applies for one year after the executives termination
of employment. 2009 Director Compensation Table
  
    
    a $20,000 annual retainer for services as a Board member (or $30,000 for the chairman
of the Board);
    
    a $2,500 fee for each Board meeting attended in person;
    
    a $1,500 fee for each Board meeting attended telephonically;
    
    a $7,000 annual retainer for services as the chairman of the Boards Audit Committee;
    
    a $5,000 annual retainer for services as the chairman of the Boards Compensation
Committee;
    
    a $3,000 annual retainer for services as the chairman of the Boards Nominating and
Governance Committee; and
    
    a $1,500 fee for each committee meeting, whether in person or telephonically.
  Fees Earned or
    
    
    
    
    
    
    All OtherPaid in Cash
    
    
    Option Awards
    
    
    Compensation
    
    
    TotalName
    
    ($)
    
    
    ($) (1)
    
    
    ($)
    
    
    ($)Lord James Blyth(2) (3)
    
    
    51,000
    
    
    
    18,912
    
    
    
    31,913
    
    
    
    101,825James H. Cavanaugh, Ph.D. (4)
    
    
    41,000
    
    
    
    36,912
    
    
    
    
    
    
    
    77,912R. Gordon Douglas, M.D.(3)
    
    
    61,000
    
    
    
    55,368
    
    
    
    
    
    
    
    116,368Richard W. Dugan (3)
    
    
    61,000
    
    
    
    36,912
    
    
    
    
    
    
    
    97,912Wayne T. Hockmeyer, Ph.D.(5)
    
    
    39,000
    
    
    
    
    
    
    
    
    
    
    
    39,000William C. Pate
    
    
    51,000
    
    
    
    23,142
    
    
    
    
    
    
    
    74,142Mark R. Sotir
    
    
    38,000
    
    
    
    23,142
    
    
    
    
    
    
    
    61,142Martin A. Vogelbaum (6)
    
    
    39,500
    
    
    
    56,696
    
    
    
    
    
    
    
    96,196Harold R. Werner (4)
    
    
    39,000
    
    
    
    36,912
    
    
    
    
    
    
    
    75,912
 (1)
    
    Reflects the aggregate grant date fair value of option awards granted by the
Company in 2009, determined in accordance with FASB ASC Topic 718. See Note
 17 Stock Option Plans in our Form 10-K for the year ended December 31,
2009 for a discussion of assumptions made in the valuation of the option
awards.(2)
    
    We entered into a consulting agreement with Lord Blyth which is described in
more detail under Item 13. Certain Relationships and Related Transactions,
and Director Independence  Consulting Agreements  Blyth Consulting
Agreement.As compensation for Lord Blyths services, in 2009, under his
consulting agreement, Lord Blyth received an option to purchase 500,000
shares of MiddleBrooks common stock. The option has a term of three years
and will fully vest one month prior to the expiration of the consulting
agreement. The Board may accelerate the vesting, or terminate the consulting
agreement prior to the vesting of Lord Blyths options, at any time in the
Boards sole discretion based on a review of Lord Blyths contribution to
MiddleBrook. The amount of Lord Blyths All Other Compensation is the grant
date fair value of such stock option to acquire 500,000 shares, calculated in
accordance with footnote 1 above.(3)
    
    In 2009, the Board formed an ad hoc special committee of directors to assist
in connection with our review of financing alternatives. The special
committee consisted of Dr. Gordon, Lord Blyth and Mr. Dugan. The compensation
shown above includes fees paid to the members of the special committee.(4)
    
    Dr. Cavanaugh and Mr. Werner resigned from the Board effective March 20, 2010.  19




---



##### Table of Contents



(5)
    
    Dr. Hockmeyer did not stand for re-election at our 2009 annual meeting and
his term as a member of our Board expired on June 23, 2009.(6)
    
    Mr. Vogelbaum resigned from the Board effective March 22, 2010.  Option Awards
    
    
    Grant Date FairName
    
    Grant Date
    
    
    (#)
    
    
    Value ($)Lord James Blyth
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,00011/24/2009
    
    
    
    500,000
    
    
    
    225,000James H. Cavanaugh, Ph.D.
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,000R. Gordon Douglas, M.D.
    
    
    6/23/2009
    
    
    
    30,000
    
    
    
    30,000Richard W. Dugan
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,000William C. Pate
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,000Mark R. Sotir
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,000Martin A. Vogelbaum
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,000Harold R. Werner
    
    
    6/23/2009
    
    
    
    20,000
    
    
    
    20,000
  Name
    
    Option Awards (#)Lord James Blyth
    
    
    1,020,000James H. Cavanaugh, Ph.D.
    
    
    100,000R. Gordon Douglas, M.D.
    
    
    195,517Richard W. Dugan
    
    
    150,053William C. Pate
    
    
    50,000Mark R. Sotir
    
    
    50,000Martin A. Vogelbaum
    
    
    70,000Harold R. Werner
    
    
    100,000
 Compensation Committee Interlocks and Insider Participation
 Blyth Consulting Agreement.
 
 Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
  
    
    Each person, or group of affiliated persons, known to us to own
beneficially more than 5% of our outstanding common stock;
    
    Each of our directors and nominees for director;
    
    Each of our named executive officers; and
    
    All of our directors and executive officers as a group.
  20




---



##### Table of Contents



Shares
Beneficially Owned
 Beneficial Owner(1)
    
    Number (2)
    
    
    PercentFive Percent Stockholders:EGI-MBRK, L.L.C. (3)
    
    
    44,424,242
    
    
    
    45.04
    %HealthCare Ventures group (4)
    
    
    13,111,832
    
    
    
    14.93Rho Ventures group (5)
    
    
    6,896,475
    
    
    
    7.80Tang Capital Partners, L.P. (6)
    
    
    6,533,334
    
    
    
    7.35Directors and Named Executive Officers:Lord James Blyth (7)
    
    
    34,166
    
    
    
    *R. Gordon Douglas, M.D. (8)
    
    
    243,287
    
    
    
    *Richard W. Dugan (9)
    
    
    153,386
    
    
    
    *William C. Pate (10)
    
    
    35,833
    
    
    
    *Mark R. Sotir (11)
    
    
    35,833
    
    
    
    *John Thievon (12)
    
    
    1,077,755
    
    
    
    1.23David Becker (13)
    
    
    990,298
    
    
    
    1.13Brad Cole (14)
    
    
    162,188
    
    
    
    *Timothy L. Miller (15)
    
    
    164,688
    
    
    
    *Donald J. Treacy, Ph.D. (16)
    
    
    322,546
    
    
    
    *Beth A. Burnside, Ph.D. (17)
    
    
    295,971
    
    
    
    *Frank Koos (18)
    
    
    81,250
    
    
    
    *Directors and executive officers as a group (13 persons) (19)
    
    
    3,899,826
    
    
    
    4.31
 *
    
    Less than 1%(1)
    
    Unless otherwise indicated, the address of each stockholder is c/o MiddleBrook Pharmaceuticals, Inc., 7 Village Circle,
Suite 100 Westlake, Texas 76262.(2)
    
    Beneficial ownership is determined in accordance with Rule 13d-3 of the Exchange Act and generally includes voting and
investment power with respect to securities, subject to community property laws, where applicable.(3)
    
    Includes: (i) 32,303,030 shares of common stock owned by EGI-MBRK, L.L.C., and (ii) 12,121,212 shares of common stock
issuable upon the exercise of a warrant held by EGI-MBRK, L.L.C. that are currently exercisable. The following entities
share the power to vote or dispose of the shares held by EGI-MBRK, L.L.C.: EGI-Fund (08-10) Investors, L.L.C. (Fund
(08-10)), which is the managing member of EGI-MBRK, L.L.C.; SZ Investments, L.L.C. (SZI), which is the managing
member of Fund (08-10); and Chai Trust Company, LLC (Trustee), which is the trustee of the trusts (the Trusts) which
indirectly own SZI. The Trusts were established for the benefit of Samuel Zell and members of his family. Samuel Zell is
neither an officer nor a director of the Trustee. The members of the board of managers of Trustee are Bert Cohen, JoAnn
Zell Gillis, Kellie Zell Harper, Robert Levin, Donald J. Liebentritt, Leah Zell Wagner and Matthew Zell. The address of
EGI-MBRK, L.L.C., Funds(08-10), SZI and Trustee is c/o Equity Group Investments, L.L.C. 2 N. Riverside Plaza, Chicago,
Illinois 60606.(4)
    
    Includes: (i) 3,629,973 shares of common stock owned by HealthCare Ventures V, L.P.; (ii) 6,215,389 shares of common
stock owned and 512,177 shares of common stock issuable upon exercise of warrants by HealthCare Ventures VI, L.P. that
are currently exercisable; and (iii) 1,975,892 shares of common stock owned and 778,401 shares of common stock issuable
upon exercise of warrants by HealthCare Ventures VII, L.P. that are currently exercisable. The address for the
HealthCare Ventures entities is 44 Nassau Street, Princeton, New Jersey 08542.(5)
    
    Includes: (i) 4,330,391 shares of common stock owned and 1,955,276 shares of common stock issuable upon exercise of
warrants held by funds managed by Rho Ventures that are currently exercisable; (ii) 607,374 shares of common stock owned
or managed by Joshua Ruch by reason of his control over certain entities as well as a trusteeship of a family trust; and
(iii) 1,717 shares owned by each of Habib Kairouz and Mark Leschly. Each of the aforementioned entities and persons
disclaims beneficial ownership of the securities listed above except to the extent of their pecuniary interest therein.
The address of Rho Ventures is Carnegie Hall Tower, 152 W. 57th Street, 23rd Floor, New York, NY 10019.  21




---



##### Table of Contents



(6)
    
    Based on a Form S-3 filed on February 1, 2008, the number of shares includes 4,191,667 shares of Common Stock owned and
2,341,667 shares of Common Stock issuable upon exercise of warrants by Tang Capital Partners, LP. that are currently
exercisable. The address for Tang Capital Partners, LP is 4401 Eastgate Mall, San Diego, CA 92121.(7)
    
    Includes 34,166 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(8)
    
    Includes 193,017 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(9)
    
    Includes 148,386 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(10)
    
    Includes 35,833 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(11)
    
    Includes 35,833 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(12)
    
    Includes (i) 33,200 shares held by Thievon-Becker LLC and (ii) 944,555 shares subject to stock options currently
exercisable or exercisable within 60 days of April 15, 2010.(13)
    
    Includes (i) 33,200 shares held by Thievon-Becker LLC and (ii) 857,098 shares subject to stock options currently
exercisable or exercisable within 60 days of April 15, 2010.(14)
    
    Includes 142,188 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(15)
    
    Includes 142,188 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(16)
    
    Includes 318,448 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010.(17)
    
    Dr. Burnsides employment with us was terminated effective December 4, 2009. Includes 295,971 shares subject to stock
options currently exercisable or exercisable within 60 days of April 15, 2010.(18)
    
    Mr. Koos employment with us was terminated effective December 3, 2009. Includes 81,250 shares subject to stock options
currently exercisable or exercisable within 60 days of April 15, 2010.(19)
    
    Includes 3,531,558 shares subject to stock options currently exercisable or exercisable within 60 days of April 15, 2010. 
 Item 13. Certain Relationships and Related Transactions, and Director Independence
 Related Party Transactions
  
    
    Management is responsible for determining whether a transaction requires review under these policies, in which case
the transaction shall be disclosed to the Audit Committee.
    
    The Audit Committee reviews the relevant facts and circumstances, including, for example, whether the transaction is
on terms no less favorable than terms generally available to an unaffiliated third party under the same or ordinary
circumstances and the related partys interest in the transaction.
    
    In the event we become aware of a related party transaction that has not been approved, the Audit Committee
evaluates all options available to us, including ratification, revision, or termination of the transaction, and
takes such course of action as the Audit Committee deems appropriate under the circumstances.
    
    No director may participate in any discussion or approval of a transaction for which he or she is a related party.
  Blyth Consulting Agreement.
 Grant Date
    
    Exercise Price(1)
    
    
    Options Granted10/17/2008
    
    $
    1.34
    
    
    
    470,00011/24/2009
    
    $
    0.70
    
    
    
    500,000
 (1)
    
    Equal to the closing price of MiddleBrooks common stock on the NASDAQ Global Market on October
16, 2008 and November 23, 2009, respectively.  22




---



##### Table of Contents



Director Independence
 Blyth Consulting Agreement
 
 Item 14. Accounting Fees and Services
 Independent Registered Public Accounting Firm Fees
  Types of Fees
    
    2009
    
    
    2008Audit Fees(1)
    
    $
    497,680
    
    
    $
    494,651Audit-Related Fees(2)
    
    
    25,644
    
    
    
    35,740Tax Fees(3)
    
    
    
    
    
    
    All Other Fees(4)
    
    
    1,500
    
    
    
    1,500
 (1)
    
    Audit Fees Represents the aggregate fees and expenses billed for
the audit of our financial statements and the audit of our internal
control over financial reporting for the year, the reviews of
financial statements included in our quarterly reports on Form 10-Q,
professional services performed in connection with our registration
statements and services provided in connection with statutory and
regulatory filings or engagements.(2)
    
    Audit-Related Fees These fees include professional services for
accounting and SEC consultations and assistance with other
transactions that are reasonably related to the audit of the Companys
annual financial statements. The decrease in the audit-related fees
from 2008 to 2009 is related to the decreased work associated with
registration statements in 2009 compared to 2008.(3)
    
    Tax Fees Includes fees and expenses billed for professional
services rendered for tax compliance in connection with the review of
our federal income tax return and state tax returns.(4)
    
    All Other Fees Represents the cost of subscribing to an on-line
library of authoritative accounting, auditing and financial reporting
guidance and literature.  Pre-Approval of Non-Audit Services
   23




---



##### Table of Contents



PART IV
 
 Item 15. Exhibits and Consolidated Financial Statement Schedules
  Index to Financial Statements
  Financial Statement Schedule
  Exhibits
   24




---



##### Table of Contents



SIGNATURES
  MIDDLEBROOK PHARMACEUTICALS, INC.By:

/s/
David BeckerDavid BeckerExecutive Vice President, Chief Financial Officer, and
Acting President and Chief Executive Officer   25




---



##### Table of Contents



EXHIBIT INDEX
 ExhibitNo.2.1
    +
    
    Asset Purchase Agreement, dated as of June 30,
2004, by and between the Registrant and Eli Lilly
and Company (incorporated by reference to our
Current Report on Form 8-K filed July 15, 2004).2.2
    
    
    Asset Purchase Agreement, dated November 7, 2007,
by and between the Registrant and Kef
Pharmaceuticals, Inc. (incorporated by reference to
our Current Report on Form 8-K filed November 13,
2007).2.3
    
    
    Asset Purchase Agreement, dated November 7, 2007,
by and between the Registrant and Lex
Pharmaceuticals, Inc. (incorporated by reference to
our Current Report on Form 8-K filed November 13,
2007).3.1
    
    
    Eighth Amended and Restated Certificate of
Incorporation (incorporated by reference to our
Quarterly Report on Form 10-Q filed August 6,
2009).3.2
    
    
    Amended and Restated Bylaws (incorporated by
reference to our Quarterly Report on Form 10-Q
filed August 6, 2009).3.3
    
    
    Certificate of Ownership and Merger Merging
MiddleBrook Pharmaceuticals, Inc. Into Advancis
Pharmaceutical Corporation (incorporated by
reference to our Current Report on Form 8-K filed
June 28, 2007).4.1
    
    
    Specimen Stock Certificate (incorporated by
reference to our Registration Statement, as
amended, on Form S-1 (File No. 333-107599)).4.2
    
    
    Form of Warrant of the Registrant attached to the
Form of Purchase Agreement dated April 26, 2005
(incorporated by reference to our Current Report on
Form 8-K dated April 27, 2005).4.3
    
    
    Form of Registration Rights Agreement dated April
9, 2007 (incorporated by reference to our Current
Report on Form 8-K filed April 13, 2007).4.4
    
    
    Form of Warrant of the Registrant attached to the
Securities Purchase Agreement dated April 9, 2007
(incorporated by reference to our Current Report on
Form 8-K filed November 13, 2007).4.5
    
    
    Registration Rights Agreement, dated November 7,
2007, by and among the Registrant, Deerfield
Private Design International Fund, L.P., Deerfield
Special Situations Fund, L.P., Deerfield Special
Situation International Limited and Deerfield
Private Design Fund, L.P. (incorporated by
reference to our Current Report on Form 8-K filed
November 13, 2007).4.6
    
    
    Form of Registration Rights Agreement dated January
24, 2008 (incorporated by reference to our Current
Report on Form 8-K filed January 30, 2008).4.7
    
    
    Form of Warrant Agreement attached to the
Securities Purchase Agreement dated as of January
24, 2008 (incorporated by reference to our Current
Report on Form 8-K filed January 30, 2008).4.8
    
    
    Form of Warrant of the Registrant attached to the
Securities Purchase Agreement, dated July 1, 2008
(incorporated by reference to our Current Report on
Form 8-K filed July 8, 2008).4.9
    
    
    Registration Rights Agreement, dated July 1, 2008,
by and among the Registrant and the investors named
therein (incorporated by reference to our Current
Report on Form 8-K filed July 8, 2008).4.10
    
    
    Fourth Amended and Restated Stockholders Agreement
(incorporated by reference to our Registration
Statement, as amended, on Form S-1 (File No.
333-107599)).4.11
    
    
    Omnibus Addendum and Amendment to Series E
Convertible Preferred Stock Purchase Agreement and
Fourth Amended and Restated Stockholders Agreement
(incorporated by reference to our Registration
Statement, as amended, on Form S-1 (File No.
333-107599)).9.1
    
    
    Form of Voting Agreement dated July 1, 2008
(incorporated by reference to our Current Report on
Form 8-K filed July 8, 2008).10.1
    *
    
    Form of Incentive Stock Option Agreement
(incorporated by reference to our Registration
Statement, as amended, on Form S-1 (File No.
333-107599)).10.2
    *
    
    Form of Non-Qualified Stock Option Agreement
(incorporated by reference to our Registration
Statement, as amended, on Form S-1 (File No.
333-107599)).10.3
    *
    
    Employee Stock Purchase Plan (incorporated by
reference to our Registration Statement on Form S-8
(File No. 333-109728)).10.4
    
    
    Form of Employment Agreement on Ideas, Inventions
and Confidential Information (incorporated by
reference to our Registration Statement, as
amended, on Form S-1 (File No. 333-107599)).
  26




---



##### Table of Contents



ExhibitNo.10.5
    
    
    Lease Agreement, dated August 1, 2002, between the
Registrant and Seneca Meadows Corporate Center II
LLC (incorporated by reference to our Registration
Statement, as amended, on Form S-1 (File No.
333-107599)).10.6
    +
    
    Development and Commercialization Agreement, dated
May 28, 2004, between the Registrant and Par
Pharmaceutical, Inc. (incorporated by reference to
our Quarterly Report on Form 10-Q filed August 6,
2004).10.7
    +
    
    Commercial Supply Agreement, dated December 3,
2004, between the Registrant and Ceph International
Corporation (incorporated by reference to our
Annual Report on Form 10-K filed March 10, 2005).10.8
    +
    
    First Amendment to Development and
Commercialization Agreement, dated December 14,
2004, between the Registrant and Par Pharmaceutical
Corporation (incorporated by reference to our
Annual Report on Form 10-K filed March 10, 2005).10.9
    +
    
    Manufacturing and Supply Agreement, dated April 19,
2005, between the Registrant and Clonmel Healthcare
Limited, (incorporated by reference to our
Quarterly Report on Form 10-Q filed August 15,
2005).10.10
    +
    
    Development and Clinical Manufacturing Agreement,
dated April 19, 2005, between the Registrant and
Clonmel Healthcare Limited (incorporated by
reference to our Quarterly Report on Form 10-Q
filed August 15, 2005).10.11
    +
    
    Form of Purchase Agreement, dated April 26, 2005,
including the form of Warrant attached thereto
(incorporated by reference to our Current Report on
Form 8-K dated April 27, 2005).10.12
    
    
    Securities Purchase Agreement, dated April 9, 2007,
including the form of Warrant attached thereto
(incorporated by reference to our Current Report on
Form 8-K filed April 13, 2007).10.13
    *
    
    Form of Amendment to the Form of Incentive Stock
Option Agreement (incorporated by reference to our
Current Report on Form 8-K filed May 22, 2007).10.14
    *
    
    Form of Amendment to the Form of Non-Qualified
Stock Option Agreement (incorporated by reference
to our Current Report on Form 8-K filed May 22,
2007).10.15
    
    
    Form of Securities Purchase
Agreement, dated January 24, 2008,
including the form of Warrant
attached hereto (incorporated by
reference to our Current Report on
Form 8-K filed January 30, 2008).10.16
    *
    
    Amended and Restated Executive
Employment Agreement, dated April
8, 2008, between the Registrant and
Edward M. Rudnic, Ph.D.
(incorporated by reference to our
Annual Report on Form 10-K filed
March 13, 2009).10.17
    *
    
    Amended and Restated Executive
Employment Agreement, dated April
8, 2008, between the Registrant and
Robert C. Low (incorporated by
reference to our Annual Report on
Form 10-K filed March 13, 2009).10.18
    *
    
    Amended and Restated Executive
Employment Agreement, dated April
1, 2008, between the Registrant and
Beth A. Burnside, Ph.D.
(incorporated by reference to our
Annual Report on Form 10-K filed
March 13, 2009).10.19
    *
    
    Amended and Restated Executive
Employment Agreement, dated April
1, 2008, between the Registrant and
Donald J. Treacy, Ph.D.
(incorporated by reference to our
Annual Report on Form 10-K filed
March 13, 2009).10.20
    *
    
    Amended and Restated Executive
Employment Agreement, dated April
1, 2008, between the Registrant and
Susan Clausen, Ph.D. (incorporated
by reference to our Annual Report
on Form 10-K filed March 13, 2009).10.21
    
    
    Securities Purchase Agreement,
dated July 1, 2008, by and between
the Registrant and EGI-MBRK, L.L.C.
(incorporated by reference to our
Current Report on Form 8-K filed
July 8, 2008).10.22
    *
    
    Executive Employment Agreement,
dated July 1, 2008, between the
Registrant and John S. Thievon
(incorporated by reference to our
Current Report on Form 8-K filed
July 8, 2008).10.23
    *
    
    Executive Employment Agreement,
dated July 1, 2008, between the
Registrant and David Becker
(incorporated by reference to our
Current Report on Form 8-K filed
July 8, 2008).10.24
    *
    
    Consulting Agreement, dated June
27, 2008, between the Registrant
and Edward M. Rudnic, Ph.D.
(incorporated by reference to our
Current Report on Form 8-K filed
July 8, 2008).10.25
    *
    
    Consulting Agreement, dated June
30, 2008, between the Registrant
and Robert C. Low (incorporated by
reference to our Current Report on
Form 8-K filed July 8, 2008).10.26
    *
    
    Amended and Restated MiddleBrook
Pharmaceuticals, Inc. Stock
Incentive Plan (incorporated by
reference to our Quarterly Report
on Form 10-Q filed on June 26,
2009).10.27
    *
    
    Consulting Agreement, by and
between the Registrant and Lord
James Blyth, dated October 17, 2008
(incorporated by reference to our
Current Report on Form 8-K filed
October 23, 2008).10.28
    
    
    Lease Agreement dated October 30,
2008 between Maguire Partners 
Solana Limited Partnership and the
Registrant (incorporated by
reference to our Current Report on
Form 8-K filed November 4, 2008).10.29
    *
    
    New Hire Stock Incentive Plan
(incorporated by reference to our
Registration Statement on Form S-8
filed February 11, 2009 (File No.
333-157261)).
  27




---



##### Table of Contents



ExhibitNo.10.30
    *
    
    Form of New Hire Nonqualified Stock
Option Agreement (incorporated by
reference to our Registration
Statement on Form S-8 filed
February 11, 2009 (File No.
333-157261)).10.31
    
    
    Form of Indemnification Agreement
(incorporated by reference to our
Annual Report on Form 10-K filed
March 13, 2009).23.1
    
    
    Consent of PricewaterhouseCoopers
LLP, Independent Registered Public
Accounting Firm (incorporated by
reference to our Annual Report on
Form 10-K filed March 16, 2010).31.1
    
    
    Certification of the Principal
Executive Officer and Principal
Financial Officer pursuant to Rule
13a-14(a)/15d-14(a) of the
Securities Exchange Act of 1934, as
amended (incorporated by reference
to our Annual Report on Form 10-K
filed March 16, 2010).31.2
    #
    
    Certification of the Principal
Executive Officer and Principal
Financial Officer pursuant to Rule
13a-14(a)/15d-14(a) of the
Securities Exchange Act of 1934, as
amended.32.1
    
    
    Certification by the Principal
Executive Officer and Principal
Financial Officer pursuant to Rule
13a-14b/13d-14(b) of the Securities
Exchange Act of 1934, as amended,
and 18 U.S.C. § 1350 (Section 906
of the Sarbanes-Oxley Act of 2002)
(incorporated by reference to our
Annual Report on Form 10-K filed
March 16, 2010).
 
    
    The Schedules and certain of the Exhibits to this Asset Purchase Agreement have been omitted
in reliance upon the rules of the Securities and Exchange Commission. A copy will be
delivered to the Securities and Exchange Commission upon request.+
    
    Confidential treatment requested for certain portions of this Exhibit pursuant to Rule 406
under the Securities Act, which portions are omitted and filed separately with the
Securities and Exchange Commission.*
    
    Indicates a management contract or a compensatory plan.#
    
    The certification filed with this Amendment No. 1 is limited to the matters addressed herein.  28