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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Middlebrook Pharmaceuticals (MM) | NASDAQ:MBRK | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 0.1335 | 0 | 01:00:00 |
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware
(State or Other Jurisdiction of Incorporation or Organization) |
52-2208264
(I.R.S. Employer Identification Number) |
|
7 Village Circle, Suite 100 | 76262 | |
Westlake, Texas | (Zip Code) | |
(Address of Principal Executive Offices) |
Title of each class | Name of each exchange on which registered | |
Common Stock, par value $0.01 per share | NASDAQ Global Market |
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
3
Name | Age | Position(s) | ||||
David Becker
|
43 | Executive Vice President, Chief Financial Officer, and Acting President and Chief Executive Officer | ||||
Brad Cole
|
42 | Senior Vice President, General Counsel and Secretary | ||||
Timothy L. Miller
|
53 | Senior Vice President, Sales Operations & Administration | ||||
Donald J. Treacy, Ph.D.
|
40 | Senior Vice President, Development & Manufacturing Operations | ||||
R. Gordon Douglas, M.D.
|
76 | Chairman of the Board of Directors | ||||
Lord James Blyth
|
69 | Vice Chairman of the Board of Directors | ||||
Richard W. Dugan
|
68 | Director | ||||
William C. Pate
|
46 | Director | ||||
Mark R. Sotir
|
46 | Director |
4
5
| 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
| 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. |
| 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. |
7
| promote the Companys 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 Companys short- and long-term performance goals. |
8
Alkermes Inc.
|
Cubist Pharmaceuticals Inc. | Acorda Therapeutics Inc. | ViroPharma Incorporated | |||
InterMune Inc.
|
CV Therapeutics Inc. | Vivus Inc. | Pozen Inc. | |||
Enzon
Pharmaceuticals
Inc.
|
Durect Corporation | Omrix Biopharmaceuticals Inc. | Noven Pharmaceuticals Inc. |
9
Description | Relative Weight | |||||
Goal #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
| 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
| 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) |
12
13
Salary | Option Awards |
All Other
Compensation |
Total | |||||||||||||||||||||
Name and Principal Position | Year | ($)(1) | Bonus ($) | ($)(2) | ($)(3) | ($) | ||||||||||||||||||
John Thievon(4)
|
2009 | 500,000 | | | | 500,000 | ||||||||||||||||||
Former President, Chief Executive Officer and Director
|
2008 | 159,295 | | 3,475,970 | 90,705 | 3,725,970 | ||||||||||||||||||
|
||||||||||||||||||||||||
David Becker(5)
|
2009 | 400,000 | | | | 400,000 | ||||||||||||||||||
Executive Vice President, Chief Financial Officer, and Acting
President and Chief Executive Officer
|
2008 | 127,436 | | 2,703,533 | 72,564 | 2,903,533 | ||||||||||||||||||
|
||||||||||||||||||||||||
Brad Cole (6)
|
2009 | 265,000 | | | 11,725 | 276,725 | ||||||||||||||||||
Senior Vice President, General Counsel
and Secretary
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Timothy L. Miller (6)
|
2009 | 250,000 | | | 84,372 | 334,372 | ||||||||||||||||||
Senior Vice President, Sales
Operations and Administration
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Donald J. Treacy, Ph.D.
|
2009 | 270,400 | | | | 270,400 | ||||||||||||||||||
Senior Vice President,
|
2008 | 268,667 | 30,420 | 411,540 | | 710,627 | ||||||||||||||||||
Development and Manufacturing
|
2007 | 242,289 | 97,500 | 95,150 | | 434,939 | ||||||||||||||||||
Operations
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Beth A. Burnside Ph.D. (7)
|
2009 | 270,400 | | | 312,644 | 583,044 | ||||||||||||||||||
Former Senior Vice President,
|
2008 | 268,667 | 30,420 | 421,840 | | 720,927 | ||||||||||||||||||
Regulatory
Affairs, Compliance & Strategic Planning
|
2007 | 243,655 | 97,500 | 86,500 | | 427,655 | ||||||||||||||||||
|
||||||||||||||||||||||||
Frank Koos (6)(8)
|
2009 | 250,000 | 113,000 | (9) | | 286,556 | 649,556 | |||||||||||||||||
Former 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 Companys 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
(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. Burnsides employment terminated on December 4, 2009. Additional information regarding Dr. Burnsides severance is set forth below in the table titled All Other Compensation 2009. | |
(8) | Mr. Kooss 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. |
Pro-rata | Moving and | Temporary | Tax | |||||||||||||||||||||
Accrued/Unpaid | Health & Welfare | Relocation | Living | Gross- | ||||||||||||||||||||
Name and Principal Position | Severance | Vacation | Benefits | Expenses | Expenses | Up | ||||||||||||||||||
John Thievon
|
| | | | | | ||||||||||||||||||
David Becker
|
| | | | | | ||||||||||||||||||
Brad Cole (a)
|
| | | 2,695 | 7,870 | 1,160 | ||||||||||||||||||
Timothy L. Miller (b)
|
| | | 78,649 | | 5,723 | ||||||||||||||||||
Donald 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. Coles move to Texas during 2009, and the associated gross-up of taxes. | |
(b) | Includes the expenses associated with the sale of Mr. Millers New Jersey home, the acquisition of his Texas home and the associated gross-up of taxes. Additionally, the Company paid Mr. Millers moving costs in connection with his move to Texas. |
Estimated Future Payouts Under | ||||||||||||
Non-Equity Incentive Plan Awards (1) | ||||||||||||
Threshold | Target | Maximum | ||||||||||
Name | ($) | ($) | ($) | |||||||||
Mr. Thievon
|
247,500 | 275,000 | 550,000 | |||||||||
|
||||||||||||
Mr. Becker
|
162,000 | 180,000 | 360,000 | |||||||||
|
||||||||||||
Mr. Cole
|
71,550 | 79,500 | 159,000 | |||||||||
|
||||||||||||
Mr. Miller
|
67,500 | 75,000 | 150,000 | |||||||||
|
||||||||||||
Dr. Treacy
|
73,008 | 81,120 | 162,240 | |||||||||
|
||||||||||||
Dr. Burnside
|
73,008 | 81,120 | 162,240 | |||||||||
|
||||||||||||
Mr. Koos
|
67,500 | 75,000 | 150,000 |
(1) | Reflects threshold, target and maximum payout levels under our 2009 annual bonus program. Payouts under the annual incentive plan were to begin when 90% of the performance targets had been met. The maximum payout may have been achieved if 200% of the performance targets had been met. For more information, please see the description of our annual bonus program contained in the Compensation Discussion and Analysis. No annual bonuses were paid in 2009. |
15
Option Awards | ||||||||||||||||||||
Number of Securities | Number of Securities | |||||||||||||||||||
Underlying Unexercised | Underlying Unexercised | |||||||||||||||||||
Options | Options | Option | Option | |||||||||||||||||
(#) | (#) | Exercise Price | Expiration | |||||||||||||||||
Name | Grant Date | Exercisable | Unexercisable | ($) | Date | |||||||||||||||
Mr. Thievon
|
09/05/2008 | 787,130 | 1,731,689 | (3) | 2.06 | 9/4/2018 | ||||||||||||||
|
||||||||||||||||||||
Mr. Becker
|
09/05/2008 | 612,213 | 1,346,869 | (3) | 2.06 | 9/4/2018 | ||||||||||||||
|
||||||||||||||||||||
Mr. Cole
|
09/05/2008 | 101,563 | 223,437 | (3) | 2.06 | 9/4/2018 | ||||||||||||||
|
||||||||||||||||||||
Mr. Miller
|
09/05/2008 | 101,563 | 223,437 | (3) | 2.06 | 9/4/2018 | ||||||||||||||
|
||||||||||||||||||||
Dr. Treacy
|
10/16/2003 | 10,928 | | (2) | 10.00 | 10/15/2013 | ||||||||||||||
|
2/25/2004 | 50,000 | | (2) | 8.45 | 2/24/2014 | ||||||||||||||
|
1/24/2005 | 50,000 | | (2) | 4.05 | 1/23/2015 | ||||||||||||||
|
1/25/2006 | 23,957 | 1,043 | (2) | 1.48 | 1/24/2016 | ||||||||||||||
|
1/24/2007 | 40,103 | 14,897 | (2) | 2.47 | 1/23/2017 | ||||||||||||||
|
2/13/2008 | 34,380 | 40,620 | (2) | 3.08 | 2/13/2018 | ||||||||||||||
|
09/10/2008 | 67,500 | 148,500 | (2) | 1.77 | 9/9/2018 | ||||||||||||||
|
||||||||||||||||||||
Dr. Burnside
|
9/2/2003 | 24,639 | | (1) | 1.41 | 9/1/2013 | ||||||||||||||
|
2/25/2004 | 50,000 | | (2) | 8.45 | 2/24/2014 | ||||||||||||||
|
1/24/2005 | 50,000 | | (2) | 4.05 | 1/23/2015 | ||||||||||||||
|
1/25/2006 | 37,915 | | (2) | 1.48 | 1/24/2016 | ||||||||||||||
|
1/24/2007 | 35,416 | | (2) | 2.47 | 1/23/2017 | ||||||||||||||
|
2/13/2008 | 35,001 | | (2) | 3.08 | 2/13/2018 | ||||||||||||||
|
09/10/2008 | 63,000 | | (2) | 1.77 | 9/9/2018 | ||||||||||||||
|
||||||||||||||||||||
Mr. 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. |
16
Termination by MiddleBrook | ||||||||||||||||||||||||
Without Cause (in | ||||||||||||||||||||||||
connection with a Change in | ||||||||||||||||||||||||
Termination by | Control) or Termination by | |||||||||||||||||||||||
MiddleBrook | Executive for Good Reason | |||||||||||||||||||||||
For | Without Cause | following a Potential Change | ||||||||||||||||||||||
Cause | Voluntary | (Unrelated to a | in Control or within 12 months | |||||||||||||||||||||
Termination | Death | Disability | Termination | Change in Control) | of a Change in Control | |||||||||||||||||||
Name | (1) ($) | ($) | ($) | ($) | (1)(2) ($) | (1)(3) ($) | ||||||||||||||||||
Mr. Thievon (9) (10)
|
||||||||||||||||||||||||
Cash Severance
|
| | | | 1,000,000 | 1,000,000 | ||||||||||||||||||
Value of Accelerated Options (5)
|
| | | | | | ||||||||||||||||||
Health & Welfare Benefits (6)
|
| | | | 29,802 | 29,802 | ||||||||||||||||||
Total
|
| | | | 1,029,802 | 1,029,802 | ||||||||||||||||||
|
||||||||||||||||||||||||
Mr. Becker (10)
|
||||||||||||||||||||||||
Cash Severance
|
| | | | 600,000 | 600,000 | ||||||||||||||||||
Value of Accelerated Options (5)
|
| | | | | | ||||||||||||||||||
Health & Welfare Benefits (6)
|
| | | | 22,352 | 22,352 | ||||||||||||||||||
Total
|
| | | | 622,352 | 622,352 | ||||||||||||||||||
|
||||||||||||||||||||||||
Mr. Cole
|
||||||||||||||||||||||||
Cash Severance
|
| | | | 265,000 | 265,000 | ||||||||||||||||||
Value of Accelerated Options (5)
|
| | | | | | ||||||||||||||||||
Health & Welfare Benefits (6)
|
| | | | 6,367 | 6,367 | ||||||||||||||||||
Total
|
| | | | 271,367 | 271,367 | ||||||||||||||||||
|
||||||||||||||||||||||||
Mr. Miller
|
||||||||||||||||||||||||
Cash Severance
|
| | | | 250,000 | 250,000 | ||||||||||||||||||
Value of Accelerated Options (5)
|
| | | | | | ||||||||||||||||||
Health & Welfare Benefits (6)
|
| | | | 14,151 | 14,151 | ||||||||||||||||||
Total
|
| | | | 264,151 | 264,151 | ||||||||||||||||||
|
||||||||||||||||||||||||
Dr. Treacy (10)
|
||||||||||||||||||||||||
Cash Severance (4)
|
| | | | 269,431 | 269,431 | ||||||||||||||||||
Value of Accelerated Options (5)
|
| | | | | | ||||||||||||||||||
Health & Welfare Benefits (6)
|
| | | | 14,901 | 14,901 | ||||||||||||||||||
Total
|
| | | | 284,332 | 284,332 | ||||||||||||||||||
|
||||||||||||||||||||||||
Dr. 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 employees 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
(2) | Reflects: (i) a cash severance payment equal to a multiple of the named executive officers 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 MiddleBrooks 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 executives consent: (i) executives relocation from his principal place of employment by more than thirty-five (35) miles; (ii) any material diminution in the executives authority, duties or responsibilities; or (iii) any material reduction in the executives 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 executives employment terminated). | |
(5) | Per the terms of each named executive officers 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. Burnsides 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
(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 executives termination of employment. |
| 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 Boards Audit Committee; | ||
| a $5,000 annual retainer for services as the chairman of the Boards Compensation Committee; | ||
| a $3,000 annual retainer for services as the chairman of the Boards Nominating and Governance Committee; and | ||
| a $1,500 fee for each committee meeting, whether in person or telephonically. |
Fees Earned or | All Other | |||||||||||||||
Paid in Cash | Option Awards | Compensation | Total | |||||||||||||
Name | ($) | ($) (1) | ($) | ($) | ||||||||||||
Lord James Blyth(2) (3)
|
51,000 | 18,912 | 31,913 | 101,825 | ||||||||||||
James H. Cavanaugh, Ph.D. (4)
|
41,000 | 36,912 | | 77,912 | ||||||||||||
R. Gordon Douglas, M.D.(3)
|
61,000 | 55,368 | | 116,368 | ||||||||||||
Richard W. Dugan (3)
|
61,000 | 36,912 | | 97,912 | ||||||||||||
Wayne T. Hockmeyer, Ph.D.(5)
|
39,000 | | 39,000 | |||||||||||||
William C. Pate
|
51,000 | 23,142 | | 74,142 | ||||||||||||
Mark R. Sotir
|
38,000 | 23,142 | | 61,142 | ||||||||||||
Martin A. Vogelbaum (6)
|
39,500 | 56,696 | | 96,196 | ||||||||||||
Harold 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 Blyths services, in 2009, under his consulting agreement, Lord Blyth received an option to purchase 500,000 shares of MiddleBrooks 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 Blyths options, at any time in the Boards sole discretion based on a review of Lord Blyths contribution to MiddleBrook. The amount of Lord Blyths 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
(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 Fair | |||||||||||
Name | Grant Date | (#) | Value ($) | |||||||||
Lord James Blyth
|
6/23/2009 | 20,000 | 20,000 | |||||||||
|
11/24/2009 | 500,000 | 225,000 | |||||||||
James H. Cavanaugh, Ph.D.
|
6/23/2009 | 20,000 | 20,000 | |||||||||
R. Gordon Douglas, M.D.
|
6/23/2009 | 30,000 | 30,000 | |||||||||
Richard W. Dugan
|
6/23/2009 | 20,000 | 20,000 | |||||||||
William C. Pate
|
6/23/2009 | 20,000 | 20,000 | |||||||||
Mark R. Sotir
|
6/23/2009 | 20,000 | 20,000 | |||||||||
Martin A. Vogelbaum
|
6/23/2009 | 20,000 | 20,000 | |||||||||
Harold R. Werner
|
6/23/2009 | 20,000 | 20,000 |
Name | Option Awards (#) | |||
Lord James Blyth
|
1,020,000 | |||
James H. Cavanaugh, Ph.D.
|
100,000 | |||
R. Gordon Douglas, M.D.
|
195,517 | |||
Richard W. Dugan
|
150,053 | |||
William C. Pate
|
50,000 | |||
Mark R. Sotir
|
50,000 | |||
Martin A. Vogelbaum
|
70,000 | |||
Harold R. Werner
|
100,000 |
| 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
Beneficial Owner(1) | Number (2) | Percent | ||||||
Five Percent Stockholders:
|
||||||||
EGI-MBRK, L.L.C. (3)
|
44,424,242 | 45.04 | % | |||||
HealthCare Ventures group (4)
|
13,111,832 | 14.93 | ||||||
Rho Ventures group (5)
|
6,896,475 | 7.80 | ||||||
Tang Capital Partners, L.P. (6)
|
6,533,334 | 7.35 | ||||||
|
||||||||
Directors 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 | 1.23 | ||||||
David Becker (13)
|
990,298 | 1.13 | ||||||
Brad 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
(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. Burnsides 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. |
| 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 partys 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. |
Grant Date | Exercise Price(1) | Options Granted | ||||||
10/17/2008
|
$ | 1.34 | 470,000 | |||||
11/24/2009
|
$ | 0.70 | 500,000 |
(1) | Equal to the closing price of MiddleBrooks common stock on the NASDAQ Global Market on October 16, 2008 and November 23, 2009, respectively. |
22
Types of Fees | 2009 | 2008 | ||||||
Audit Fees(1)
|
$ | 497,680 | $ | 494,651 | ||||
Audit-Related Fees(2)
|
25,644 | 35,740 | ||||||
Tax 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 Companys 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. |
23
24
MIDDLEBROOK PHARMACEUTICALS, INC.
|
||||
By: | /s/ David Becker | |||
David Becker | ||||
Executive Vice President, Chief Financial Officer, and
Acting President and Chief Executive Officer |
25
Exhibit | ||||
No. | ||||
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
Exhibit | ||||
No. | ||||
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
Exhibit | ||||
No. | ||||
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
1 Year Middlebrook Pharmaceuticals (MM) Chart |
1 Month Middlebrook Pharmaceuticals (MM) Chart |
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