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:

     

    
      	
            	x	
              “(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.”

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
            	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 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.”

            


    

     

    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.

    
 

     

    
      	
              Employee

            	 	
              MiddleBrook
                Pharmaceuticals, Inc.

            
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	
              /s/
                Edward M. Rudnic

            	 	
              By:

            	
              /s/
                Robert C. Low

            
	
              Edward
                M. Rudnic, Ph.D.

            	 	 	
              Robert
                C. Low

            
	 	 	 	
              Vice
                President & CFO