Exhibit 10.1


 


THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

(Michael P. Whitman)


 


This Third
Amendment to Second Amended and Restated Employment Agreement dated as of May 14,
2009 (this “Third Amendment”), is made by and between Power Medical
Interventions, Inc., a Delaware corporation (the “Company”), and
Michael P. Whitman (“Executive”).


 


WHEREAS, the
Company and Executive are parties to a Second Amended and Restated Employment
Agreement dated March 23, 2007, which agreement was amended by a First
Amendment to Second Amended and Restated Employment Agreement, dated as of February 4,
2008 and a Second Amendment to Second Amended and Restated Employment
Agreement, dated as of February 6, 2009 (the “Original Agreement”);
and


 


WHEREAS, the
parties wish to amend and restate a defined term in the Original Agreement in
the manner set forth herein to reflect their intent and agreement at the time
they entered into the Second Amendment to Second Amended and Restated
Employment Agreement.


 


NOW, THEREFORE, in
consideration of the premises and the covenants set forth herein and in the
Original Agreement, the parties hereby agree as follows:


 


1.                                       Defined Terms.  Capitalized terms used, but not
defined, herein shall have the meanings ascribed to them in the Original
Agreement.


 


2.                                       Definition of Change of Control.  The definition of “Change of
Control” set forth in Section 9 of the Second Amended and Restated
Employment Agreement is hereby amended and restated in its entirety as follows:


 


“ “Change of Control”
means the closing of a sale of all or substantially all of the assets or issued
and outstanding capital stock of the Company in one or more related
transactions, or a merger or consolidation involving the Company in which
stockholders of the Company immediately before such merger or consolidation do
not own immediately after such merger or consolidation capital stock or other
equity interests of the surviving corporation or entity representing more than
fifty percent in voting power of capital stock or other equity interest of such
surviving corporation or entity outstanding immediately after such merger or
consolidation.”


 


3.                                       Salary.  Section 4.1 of the Second Amended and
Restated Employment Agreement is hereby amended to delete Section 4.1(b) in
its entirety and to insert the following in its place:


 


“(b)                           Salary for 2009 and Subsequent Years.  For calendar year 2009, Executive’s
Salary shall be $385,000 increased by the percentage increase in the US
Department of Labor’s Bureau of Labor Statistics Consumer Price Index for Urban
Wage Earners and Clerical Workers in the NY-NJ-CT-PA metropolitan area Series number
CWURA101SA0 (“CPI”) for October of the preceding calendar year. For
each calendar year thereafter, Executive’s Salary shall be increased consistent
with the foregoing CPI adjustment calculation for the preceding calendar year,
the intent being to provide Executive with a minimum Salary of $385,000 plus
the amount of the annual CPI adjustments (“Minimum Salary”).  In no
event shall Executive’s Salary be decreased below the Minimum Salary.  In
addition, the Company agrees that the Executive’s Salary and performance will
be reviewed at least annually by the Board to determine if any additional
change in compensation is appropriate.”


 


4.                                       Ratification.  The Original Agreement, as
amended hereby, is hereby ratified and confirmed in all respects and shall
continue in full force and effect.  The Original Agreement shall, together
with this Third Amendment, be read and construed as a single agreement.


 

















 


5.                                       Governing Law.  This Third Amendment shall be
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to its principles of conflict of laws.


 


6.                                       Counterparts.  This Third Amendment may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


 


IN WITNESS
WHEREOF, the parties have executed this Third Amendment to Second Amended and
Restated Employment Agreement as an instrument under seal as of the date first
written above.


 


 


	
   

  	
  POWER MEDICAL
  INTERVENTIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Charles W. Federico

  
	
   

  	
  Name: Charles W.
  Federico

  
	
   

  	
  Title:    Presiding
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Michael P. Whitman

  
	
   

  	
  Michael P. Whitman