**Exhibit 10.1**

 

**THIRD AMENDMENT TO****SECOND AMENDED AND RESTATED****EMPLOYMENT AGREEMENT****(Michael P. Whitman)**

 

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

 

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

 

WHEREAS, theparties wish to amend and restate a defined term in the Original Agreement inthe manner set forth herein to reflect their intent and agreement at the timethey entered into the Second Amendment to Second Amended and RestatedEmployment Agreement.

 

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

 

1.                                       Defined Terms.  Capitalized terms used, but notdefined, herein shall have the meanings ascribed to them in the OriginalAgreement.

 

2.                                       Definition of Change of Control.  The definition of “Change ofControl” set forth in Section 9 of the Second Amended and RestatedEmployment 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 issuedand outstanding capital stock of the Company in one or more relatedtransactions, or a merger or consolidation involving the Company in whichstockholders of the Company immediately before such merger or consolidation donot own immediately after such merger or consolidation capital stock or otherequity interests of the surviving corporation or entity representing more thanfifty percent in voting power of capital stock or other equity interest of suchsurviving corporation or entity outstanding immediately after such merger orconsolidation.”

 

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

 

“(b)                           Salary for 2009 and Subsequent Years.  For calendar year 2009, Executive’sSalary shall be $385,000 increased by the percentage increase in the USDepartment of Labor’s Bureau of Labor Statistics Consumer Price Index for UrbanWage Earners and Clerical Workers in the NY-NJ-CT-PA metropolitan area Series numberCWURA101SA0 (“CPI”) for October of the preceding calendar year. Foreach calendar year thereafter, Executive’s Salary shall be increased consistentwith the foregoing CPI adjustment calculation for the preceding calendar year,the intent being to provide Executive with a minimum Salary of $385,000 plusthe amount of the annual CPI adjustments (“Minimum Salary”).  In noevent shall Executive’s Salary be decreased below the Minimum Salary.  Inaddition, the Company agrees that the Executive’s Salary and performance willbe reviewed at least annually by the Board to determine if any additionalchange in compensation is appropriate.”

 

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

 

----

 

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

 

6.                                       Counterparts.  This Third Amendment may beexecuted in two or more counterparts, each of which shall be deemed anoriginal, but all of which together shall constitute one and the sameinstrument.

 

IN WITNESSWHEREOF, the parties have executed this Third Amendment to Second Amended andRestated Employment Agreement as an instrument under seal as of the date firstwritten 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                                |

 

----