Exhibit 10.9


 


EMPLOYMENT AGREEMENT


(Joseph Camaratta)


 


This Employment Agreement dated as of January 5, 2009 (this “Agreement”)
is made by and between Power Medical Interventions, Inc., a Delaware
corporation (the “Company”), and Joseph Camaratta (“Executive”).


 


BACKGROUND


 


The Company desires to employ Executive, and employee desires to be
employed by the Company in accordance with the terms and conditions set forth
in this Agreement.


 


NOW, THEREFORE, in consideration of the premises, the respective covenants
and commitments of the parties hereto set forth in this Agreement and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:


 


1.            Employment.  The Company offers and Executive accepts
employment and agrees to perform services for the Company, for the period and
upon the other terms and subject to the conditions set forth in this Agreement.


 


2.            Employment Term.  Executive’s employment pursuant to this
Agreement shall be from January 5, 2009 (the “Effective Date”),
through December 31, 2011,
unless earlier terminated pursuant to the provisions of Section 9
below.  If Executive’s employment
continues beyond December 31, 2011, such employment shall be at will,
unless and to the extent this Agreement is extended or renewed by a written
agreement between the parties.


 


3.            Title and Duties; Representations
and Warranties.


 


3.1.          Service With Company.  Company hereby employs Executive to perform
those executive duties and services as the Company shall from time to time set
forth, and Executive accepts employment with the Company, upon the terms and
conditions hereinafter set forth. 
Executive shall serve as the Senior Vice President, Global Sales and
Marketing of the Company and shall report to the Chief Executive Officer of the
Company.  Executive may also serve as an
officer or director of one or more subsidiaries of the Company; provided,
however, that Executive shall not be entitled to any additional compensation
for serving in such additional capacities.


 


3.2.          Performance of
Duties.  Executive agrees to serve
the Company faithfully and to the best of his ability and to devote his full
time, attention and best efforts to the business and affairs of the Company
after the Effective Date and during the term of this Agreement.  Except to the extent the restrictions
contained in Section 5 may apply, nothing in this Agreement shall prohibit
Executive from (i) making and managing passive investments, and (ii) engaging
in religious, academic, charitable or other community or non-profit activities,
in a manner, and to an extent, that will not interfere with his duties to the
Company.


 

















 


3.3.         Compliance with Company Policies.  Executive agrees that in the rendering of all
services to the Company and in all aspects of employment hereunder, he shall
comply in all material respects with all directives, policies, standards and
regulations from time to time established by the Company, including without
limitation Section 104 of Company’s Employment Policies and Procedures
Manual, to the extent they are not in conflict with this Agreement.


 


3.4.         Other
Obligations.


 


(a)           Between Executive
and Third Parties.  Executive hereby
represents, warrants and agrees: (i) that Executive has the full right to
enter into this Agreement and perform the services required of him hereunder,
without any restriction whatsoever; (ii) that in the course of performing
services hereunder, Executive will not violate the terms or conditions of any
agreement between him and any third party or infringe or wrongfully appropriate
any patents, copyrights, trade secrets or other intellectual property rights of
any Person anywhere in the world; (iii) that Executive has not and will
not disclose or use during his employment  by the Company any confidential
information that he acquired as a result of any previous employment or
consulting arrangement or under a previous obligation of confidentiality; and (iv) that
Executive has disclosed to the Company in writing any and all continuing
obligations to previous employers or others that require him not to disclose
any information to the Company.


 


(b)           Between Company and Third
Parties.  Executive acknowledges that the Company from
time to time may have agreements with other Persons, including the government
of the United States or other countries and agencies thereof, which impose
obligations or restrictions on Company regarding inventions made during the
course of work thereunder or regarding the confidential nature of such work.  Executive agrees to be bound by all such
obligations and restrictions and to take all action necessary to discharge the
obligations of the Company thereunder.


 


3.5.         Location.  Executive initially shall be based at the
Company’s principal executive offices in Langhorne, Pennsylvania and shall
maintain a residence within 75 miles of Langhorne.


 


4.            Compensation and Benefits.


 


4.1.         Salary.  Company shall pay Executive a
base salary (“Salary”), payable in equal installments in accordance with
Company’s standard schedule for salary payments to its executive employees, at
an initial annual rate equal to $225,000. 
Executive’s
Salary shall be reviewed annually by the Chief Executive Officer and may be
increased at the beginning of each calendar year.


 


4.2.         Bonus.  Executive will be eligible to participate in
Company’s Incentive Compensation Plan for Senior Managers (the “Bonus Plan”).  Any bonus awarded under the Bonus Plan for a
given year (“Plan Bonus”) will be subject to the terms and conditions of
the Bonus Plan and based on (i) Company’s performance during such year
measured against one or more Company goals set by the Chief Executive Officer
at the beginning of such year, and (ii) Executive’s performance during
such year measured against one or more job-specific goals 


 


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determined by the
Chief Executive Officer and Executive at the beginning of such year.  Executive’s Plan Bonus for a given year will
be targeted at 35%
of Salary for such year, subject to approval by the Compensation Committee of
the Board of Directors (the “Compensation Committee”).


 


4.3.          Stock Options.  Subject to approval by the Compensation
Committee, the Company shall grant to Executive a nonqualified stock option
(the “Option”) to purchase 150,000 shares of the Company’s Common Stock,
$0.001 par value per share (“Common Stock”).  The Option shall have an exercise price per
share equal to the fair market value on the date of grant (as determined by the
Compensation Committee after considering advice from an independent appraisal
firm) and shall be substantially in the form of Exhibit 4.3.   The Option shall vest as to 25% of the
shares issuable thereunder on the first anniversary of the Effective Date, and
the remainder shall vest in equal monthly portions over the following 36
months, for a total four-year vesting period, all as set forth in greater
detail in the Option. 
Notwithstanding
the vesting schedule set forth above, upon a Change of Control (as defined
below), vesting of the Option shall accelerate such that if a Change of Control
occurs on or before the first anniversary of the Effective Date, then 50% of
the shares issuable pursuant to the Option shall be immediately vested and if a
Change of Control occurs after the first anniversary of the Effective Date,
then all unvested shares issuable pursuant to the Option shall immediately
become vested.


 


For purposes of the Option, a “Change
of Control” shall mean the sale of all or substantially all of 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 interests of
such surviving corporation or entity outstanding immediately after such merger
or consolidation.


 


4.4.          Other Benefits.
 Executive shall have the right to
participate in all benefit plans which may be in effect for the Company’s
executive employees from time to time, including, without limitation, group
health and dental insurance, group life insurance, disability insurance, and
401(K) plans, in accordance with the terms and conditions thereof.


 


4.5.          Expenses.  During the term of this Agreement, the
Company shall pay or reimburse Executive for all reasonable and necessary
out-of-pocket expenses incurred by Executive in the performance of his duties
under this Agreement, subject to the presentment by Executive of appropriate
reports and receipts in accordance with the Company’s normal policies for
expense verification.


 


4.6.          Vacation.  Executive shall be entitled to twenty
vacation days each calendar year.  Any
vacation taken by Executive shall be taken at such time as is reasonably
convenient in relationship to the needs of the business of the Company.  Vacation time shall not accrue beyond the
year in question; provided, however, that any vacation time not taken
during any year due to constraints imposed by the Company’s business
requirements shall accrue beyond the year in question.


 


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5.            Restrictive Covenants.


 


5.1.          Certain
Definitions.  The following terms
shall have the following meanings:


 


“Competitive Activity” means the development, manufacture,
distribution, sale or marketing of products or services which compete with the
Company’s products or services, including without limitation computer-mediated
wound closure devices, imaging devices and vascular devices, whether as a
proprietor, partner, shareholder, owner, employer, employee, independent
contractor, venturer or otherwise.


 


“Competitor” means (i) Ethicon Endo-Surgery (currently a
unit of Johnson & Johnson), (ii) United Stated Surgical
Corporation (currently a unit of Tyco International’s Tyco Healthcare division,
which is soon to be spun out as an independent company), (iii) any other
Person (other than Company) that engages in any Competitive Activity during the
Restriction Period, and (iv) any affiliate or successor of any of the
foregoing entities.


 


“Confidential Information” means all confidential, secret or
proprietary information of or relating to the Company, its business or
practice, which is not generally known or available to the public (whether or
not in written or tangible form) including, without limitation, designs,
technology, customer lists, supplier lists, processes, know-how, trade secrets,
pricing policies and other confidential business information.


 


“Confidential Materials” means any and all documents, records,
reports, lists, notes, plans, materials, programs, software, disks, diskettes,
recordings, manuals, correspondence, memoranda, magnetic media or any other
tangible media (including, without limitation, copies or reproductions of any
of the foregoing) in which any Confidential Information may be contained.


 


“Customers” means any and all past, present and future customers
of the Company.


 


“Company” means the Company and its subsidiaries, whether now or
in the future.


 


“Non-Competition Period” means the period of time, commencing on
the date hereof and expiring 12 months after the termination of Executive’s
employment with the Company pursuant to, this Agreement, voluntarily or
involuntarily, for any reason whatsoever, subject to extension pursuant to Section 5.6
below.


 


“Person” means an individual, proprietorship, partnership, joint
venture, corporation, limited liability company, association, trust, estate,
unincorporated organization, a government or any branch, subdivision,
department or agency thereof, or any entity.


 


“Personnel” means any and all employees, contractors, agents,
vendors, consultants or other Persons rendering services or providing goods to
the Company for compensation in any form, whether employed by or independent of
the Company.


 


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“Restricted Area” means  world-wide.


 


“Restriction Period” means the period of time, commencing on the
date hereof and expiring 12 months after the termination of Executive’s
employment with the Company pursuant to, this Agreement, voluntarily or
involuntarily, for any reason whatsoever, subject to extension pursuant to Section 5.4
below.


 


5.2.         Confidentiality.


 


(a)           Confidential
Information.  Subject to Section 5.2(c):


 


(i)            Duty to Maintain Confidentiality.  Executive shall maintain in strict confidence
and duly safeguard to the best of his ability any and all Confidential Information.


 


(ii)           Covenant Not to Disclose, Use or Exploit.  Executive shall not, directly or indirectly,
disclose, divulge or otherwise communicate to anyone or use or otherwise
exploit for the benefit of anyone, other than the Company, any Confidential
Information.


 


(iii)          Confidential Materials.  All Confidential Information and Confidential
Materials are and shall remain the exclusive property of the Company and no
such materials or information may be copied or otherwise reproduced, removed
from the premises of the Company or entrusted to any Person (other than Company
itself or authorized Personnel) without prior written permission from the
Company.


 


(b)          Survival
of Covenants.  Notwithstanding
anything herein to the contrary, the covenants set forth in this Section 5.2
shall survive the termination of this Agreement and any other agreement among
the parties hereto (regardless of the reason for such termination), unless
terminated by a written instrument that expressly terminates by specific
reference the covenants set forth in this Section 5.2.


 


(c)           Permitted
Activities.  If Executive receives a
request or demand for Confidential Information (whether pursuant to a discovery
request, subpoena or otherwise), Executive shall immediately give the Company
written notice thereof and shall at the Company’s expense (provided the Company
approves any and all such expenses) exert his best efforts to resist
disclosure, including, without limitation, by fully cooperating and assisting
the Company in whatever efforts it may make to resist or limit disclosure or to
obtain a protective order or other appropriate remedy to limit or prohibit
further disclosure or use of such Confidential Information.  If Executive complies with the preceding
sentence but nonetheless becomes legally compelled to disclose Confidential
Information, Executive shall disclose only that portion of the Confidential
Information that he is legally compelled to disclose.


 


5.3.         Covenant
not to Compete.  During the
Non-Competition Period, Executive shall not, directly, indirectly, whether as a
sole practitioner, owner, partner, shareholder, investor, employee, Company,
venturer, independent contractor, consultant or other participant, (i) own,



 


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manage, invest in or
acquire any economic stake or interest in any Person involved in a Competitive
Activity, (ii) derive economic benefit from or with respect to any
Competitive Activity, or (iii) otherwise engage or participate in any
manner whatsoever in any Competitive Activity; provided, however, this Section 5.3
shall not restrict Executive from owning less than 1% of the publicly traded
debt or equity securities issued by a corporation or other entity or from
having any other passive investment that creates no conflict of loyalty or
interest with any duty owed to the Company. 
Executive shall be deemed to have derived economic benefit in violation
of this Section 5.3 if, among other things, any of his compensation or
income is in any way related to any Competitive Activity conducted by any
Person.  Further, during the
Non-Competition Period Executive shall not, directly or indirectly, advance,
cooperate in or help or aid any Competitor in the conduct of any Competitive
Activity, or accept any employment with or otherwise be involved, directly or
indirectly, in (or with any Person involved in) any Competitive Activity which
by its nature could reasonably be expected to involve the use or disclosure of
any Confidential Information.


 


5.4.         Covenants
not to Interfere.


 


(a)           Customers.  During the Restriction Period, Executive
shall not, directly or indirectly, induce or influence, or attempt to induce or
influence, any Customer to terminate a relationship which has been formed or is
being formed, or otherwise divert from the Company, any Customer, or solicit,
induce or influence any Customer to discontinue, reduce the extent of,
discourage the development of or otherwise harm its relationship with the
Company, including, without limitation, to commence or increase its relationship
with any Competitor.


 


(b)           Personnel.  During the Restriction Period, Executive
shall not, directly or indirectly, recruit, solicit or otherwise induce or
influence any Personnel of the Company to discontinue, reduce the extent of,
discourage the development of or otherwise harm its relationship or commitment
to the Company.  Conduct prohibited under
this Section 5.4(b) shall include, without limitation, employing,
seeking to employ or causing, aiding, inducing or influencing a Competitor to
employ or seek to employ any Personnel of the Company.


 


5.5.         Equitable
Relief.  Each of the parties
acknowledges that the provisions and restrictions of this Section 5 are
reasonable and necessary for the protection of the legitimate interests of
Company.  Each of the parties further
acknowledges that the provisions and restrictions of this Section 5 are
unique and that any breach or threatened breach of any such provisions or
restrictions will provide Company with no adequate remedy at law, and the
result will be irreparable harm to Company. 
Therefore, the parties hereto agree that upon a breach or threatened
breach of the provisions or restrictions of this Section 5, Company shall
be entitled, in addition to any other rights and remedies which may be
available to it, to institute and maintain proceedings at law or in equity, to
recover damages, to obtain an equitable accounting of all earnings, profits or
other benefits resulting from such breach or threatened breach and to obtain
specific performance or a temporary and permanent injunction.


 


5.6.         Full
Restriction Period.  If Executive
violates any restrictive covenant contained herein and Company institutes
action for equitable relief, Company, as a result of the time involved in
obtaining such relief, shall not be deprived of the benefit of the full
Non-Competition Period or Restriction Period, as the case may be.  Accordingly, the Non-


 


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Competition Period
and the Restriction Period shall be deemed to have the respective durations
specified in Section 5.1, computed from and commencing on the date on
which relief is granted by a final order from which there is no appeal, but
reduced, if applicable, by the length of time between the date such period
commenced and the date of the first violation of any restrictive covenant by
Executive.


 


5.7.         Equitable
Accounting.  Company shall have the
right to demand and receive equitable accounting with respect to any
consideration received by Executive in connection with activities in breach of
the restrictive covenants herein, and Company shall be entitled to payment from
Executive of such consideration on demand.


 


5.8.         Prior
Breaches.  Neither the expiration of
the Restriction Period nor the termination of the status of any Customer or
Personnel as such (whether or not due to a breach hereof by Executive) shall
preclude, limit or otherwise affect the rights and remedies of Company against
Executive based upon any breach hereof during the Restriction Period or before
such status of Customer or Personnel terminated.


 


5.9.         Noncircumvention
of Covenants.  Executive acknowledges
and agrees that, for purposes of this Agreement, an action shall be considered
to have been taken by Executive “indirectly” if taken by or through (a) any
member of his family (whether a close or distant relation by blood, marriage or
adoption), (b) any Person owned or controlled, solely or with others,
directly or “indirectly” by Executive or a member of his family, (c) any
Person of which he is an owner, partner, Company, employee, trustee,
independent contractor or agent, (d) any employees, partners owners or
independent contractors of any such Person or (e) any other one or more
representatives or intermediaries, it being the intention of the parties that
Executive shall not directly or indirectly circumvent any restrictive covenant
contained herein or the intent thereof.


 


5.10.       Notice
of Restrictions.  During the
Restriction Period, Employee shall notify each prospective Company, partner or
co-venturer of the restrictions contained in this Agreement.  Company is hereby authorized to contact any
of such Persons for the purpose of providing notice of such restrictions.


 


5.11.       Reduction
of Restrictions by Court Action. 
Each of the provisions hereof, including, without limitation, the
periods of time, geographic areas and types and scopes of duties of, and
restrictions on the activities of, the parties hereto specified herein are and
are intended to be divisible, and if any portion thereof (including any
sentence, clause or word) shall be held contrary to law or invalid or
unenforceable in any respect in any jurisdiction, or as to one or more periods
of time, areas or business activities or any part thereof, the remaining
provisions shall not be affected but shall remain in full force and effect, and
any such invalid or unenforceable provision shall be deemed, without further
action on the part of any party hereto or other Person, modified and amended to
the minimum extent on the part of any party hereto or other Person, modified
and amended to the minimum extent necessary to render the same valid and
enforceable in such jurisdiction.


 


5.12.       Fairness
of Restrictions.  Executive
acknowledges and agrees that (a) compliance with the restrictive covenants
set forth herein would not prevent him from earning a 


 


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living that involves
his training and skills without relocating, but only engaging in unfair
competition with, misappropriating a corporate opportunity of, or otherwise
unfairly harming Company and (b) the restrictive covenants set forth
herein are intended to provide a minimum level of protection necessary to
protect the legitimate interests on Company. 
In addition, the parties acknowledge that nothing herein is intended to
or shall limit, replace or otherwise affect any other rights or remedies at law
or in equity for protection against unfair competition with, misappropriation
of corporate opportunities of, disclosure of confidential and proprietary
information of, or defamation of Company, or for protection of any other rights
or interest of Company.


 


6.            Ownership and Assignment of
Company Inventions.  Executive agrees
that if, during his employment with Company, Executive shall (either alone or
with others) make, conceive, discover or reduce to practice any invention,
modification, discovery, design, development, improvement, process, formula,
data, technique, know-how, secret or intellectual property right whatsoever or
any interest therein (whether or not patentable or registrable under copyright
or similar statutes or subject to analogous protection) (collectively, “Company
Inventions”) that relates to any of the products or services being
developed, manufactured or sold by Company or which may conveniently be used in
relation therewith or which may be used in place of any such product or
service, or results from tasks assigned to Executive by Company or results, in
whole or in part, from the use of property or premises owned, leased or
contracted for by Company, such Company Inventions and the benefits thereof
shall immediately become the sole and absolute property of Company and its
assigns.  Executive agrees that all
Company Inventions that consist of works of authorship capable of protection
under copyright laws shall constitute works made for hire.  Executive hereby agrees to assign, and to the
extent he may lawfully do so, hereby assigns to Company, any rights Executive
may have or acquire in the Company Inventions and benefits and/or rights
resulting therefrom to Company and its assigns without compensation.


 


7.            Executive’s Obligation to Keep
Records.  Executive shall make and
maintain adequate and current written records of all Company Inventions,
including notebooks and invention disclosures, which records shall be available
to and remain the property of Company at all times.  Executive shall promptly disclose all Company
Inventions to Company, fully, in writing and without publishing the same,
immediately upon production or development of the same and at any time upon
request.


 


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8.            Executive’s Obligation to
Cooperate.  Executive will, at any
time during his employment, or after it terminates, upon request of Company,
execute all documents and perform all lawful acts which Company considers
necessary or advisable to secure its rights under Section 6 of this
Agreement and to carry out the intent of this Agreement.  Without limiting the generality of the
foregoing, Executive will assist Company in any reasonable manner to obtain for
its own benefit patents or copyrights in any and all countries with respect to
all Company Inventions assigned pursuant to Section 6, and Executive will
execute, when requested, patent and other applications and assignments thereof
to Company, or Persons designated by it, and any other lawful documents deemed
necessary by Company to carry out the purposes of this Agreement, and Executive
will further assist Company in every way to enforce any patents and copyrights
obtained, including testifying in any suit or proceeding involving any of said
patents or copyrights or executing any documents deemed necessary by Company,
all without further consideration than provided for herein.  It is understood that reasonable
out-of-pocket expenses of Executive’s assistance incurred at the request of
Company under this Section will be reimbursed by Company.


 


9.            Termination.


 


9.1.         Bases
for Termination.  Notwithstanding any
other provision of this Agreement, the employment relationship created under
this Agreement between Company and Executive shall terminate immediately upon
the occurrence of any one of the following events:


 


(a)           The death of
Executive;


 


(b)           Executive shall
become Permanently Disabled (as defined in Section 9.4);


 


(c)           Immediately upon
delivery to Executive by Company of written notice of termination for Cause (as
defined in Section 9.4);


 


(d)           Immediately upon
delivery to Executive by Company of written notice of termination without
Cause; or


 


(e)           Thirty (30) days
after delivery to Company by Executive of written notice of Executive’s
voluntary and unilateral termination of this Agreement.


 


Notwithstanding
any termination of employment, Executive, in consideration of his employment
hereunder to the date of such termination and the payment by Company of the
compensation payable hereunder, agrees that Executive’s covenants and
obligations set forth in Sections 5 through 10 shall remain in effect and be
fully enforceable in accordance with the provisions thereunder.


 


9.2.         Effect
of Termination.


 


(a)           If Executive’s
employment is terminated pursuant to clauses (a), (b), (c) or (e) of Section 9.1
hereof, Executive shall be entitled to receive his Salary pro-rated through the
effective date of such termination (which shall be the date of death or the date
Executive becomes Permanently Disabled), which pro-rated Salary shall be paid
to Executive


 


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within 15 days of such effective date. 
Executive shall also be entitled to reimbursement for all Expenses
incurred by Executive prior to such effective date in connection with his
duties hereunder, to the extent that such expenses have not been previously
reimbursed by Company, which Expenses shall be paid to Executive within 15 days
after Executive submits to Company appropriate documentation as required
hereunder.


 


(b)                                 If Executive’s employment is
terminated pursuant to clause (d) of Section 9.1 hereof prior to the
six-month anniversary of the Effective Date, then Company shall (i) continue
to pay to Executive his Salary in effect as of the date immediately prior to
the effective date of such termination, until the second month anniversary of such effective date, and (ii) reimburse
Executive for all Expenses incurred prior to such effective date in connection
with his duties hereunder, to the extent that such Expenses have not been
previously reimbursed by Company, which Expenses shall be paid to Executive
within 15 days after Executive submits to Company appropriate documentation as
required hereunder.


 


(c)                                  If Executive’s employment is
terminated pursuant to clause (d) of Section 9.1 hereof on or after
the sixth-month anniversary of the Effective Date and on or before the 24-month
anniversary of the Effective Date, then Company shall (i) continue to pay
to Executive his Salary in effect as of the date immediately prior to the
effective date of such termination, until the fourth
month anniversary of such effective date, and (ii) reimburse
Executive for all Expenses incurred prior to such effective date in connection
with his duties hereunder, to the extent that such Expenses have not been
previously reimbursed by Company, which Expenses shall be paid to Executive
within 15 days after Executive submits to Company appropriate documentation as
required hereunder.


 


(d)                                 If Executive’s employment is
terminated pursuant to clause (d) of Section 9.1 hereof after the
24-month anniversary of the Effective Date, then Company shall (i) continue
to pay to Executive his Salary in effect as of the date immediately prior to
the effective date of such termination, until the sixth month anniversary of such effective date, and (ii) reimburse
Executive for all Expenses incurred prior to such effective date in connection
with his duties hereunder, to the extent that such Expenses have not been
previously reimbursed by Company, which Expenses shall be paid to Executive
within 15 days after Executive submits to Company appropriate documentation as
required hereunder.


 


(e)                                  Notwithstanding
anything to the contrary in Section 9.2, Executive shall not be entitled
to receive any payments or benefits pursuant to Section 9.2(b), (c) or
(d) unless he first executes and delivers to the Company a general release
of claims against the Company and its affiliates in form and substance
reasonably satisfactory to the Company. 
Without prejudice to any other right or remedy to which the Company may
be entitled, the Company may terminate its obligations under Section 9.2
if Executive breaches his obligations under Sections 5, 6, 8, 9 or 10.


 


9.3.                              Surrender of Records and
Property.  Upon termination of his employment with
Company, Executive shall promptly deliver to Company all records, manuals,
books, blank forms, documents, letters, memoranda, notes, notebooks, reports,
data, tables, calculations and copies thereof, which are the property of
Company or which relate in any way to the business, products, practices or
techniques of Company, and all other property, trade secrets and


 


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confidential information of Company, including, without limitation, all
documents which in whole or in part contain any trade secrets or confidential
information of Company, which in any of these cases are in his possession or
under his control.


 


9.4.                              Certain Definitions.  For the purposes of this Section 9, the
following terms shall have the following meanings:


 


“Cause” shall mean (i) Executive’s
willful misconduct which materially and adversely reflects upon the business,
affairs, operations, or reputation of Company or upon Executive’s ability to
perform his duties for Company; (ii) Executive’s failure to perform his
duties and responsibilities other than as a result of disability for Company,
which failure continues for more than ten days after Company gives written
notice to Executive which sets forth in reasonable detail the nature of such
failure; (iii) Executive’s negligent performance of his duties, which
negligent performance continues for more than ten days after Company gives
written notice to Executive which sets forth in reasonable detail the nature of
such negligence; or (iv) Executive’s breach of any one or more of the
material provisions of this Agreement (including without limitation Section 3.3
and the policies referenced therein), which breach continues for more than ten
days after Company gives written notice to Executive which sets forth in
reasonable detail the nature of such breach.


 


“Permanently Disabled” means Executive
is unable to continue his normal duties of employment, by reason of a medically
determined physical or mental impairment, for a continuous period of nineteen
(19) consecutive weeks or for any twenty-six (26) weeks within a fifty-two (52)
week period.


 


10.                                 Miscellaneous
Provisions.


 


10.1.                        Governing Law and Jurisdiction.  This Agreement shall be deemed to be a
contract made under the laws of the Commonwealth of Pennsylvania and for all
purposes shall be construed in accordance with the laws of said state
applicable to contracts made and to be performed within said state.  The parties consent to the exclusive
jurisdiction of the Courts of Common Pleas located in Bucks County,
Pennsylvania in all actions arising out of this Agreement.


 


10.2.                        Entire Agreement.  This Agreement (together with the exhibit
attached hereto, which hereby is incorporated by reference) contains the entire
agreement of the parties hereto relating to the employment of Executive by
Company and the other matters discussed herein and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.


 


10.3.                        Withholding Taxes.  Company may withhold from any compensation or
other benefits payable under this Agreement all federal, state, city or other
taxes as shall be required pursuant to any law or governmental regulation or
ruling.


 


10.4.                        Supplements and Amendments.  This Agreement may be supplemented or amended
only upon the written consent of each of the parties hereto.


 


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10.5.                        Assignment.  Except as expressly provided below, this
Agreement shall not be assignable, in whole or in part, by either party without
the prior written consent of the other party. 
Company may, without the prior written consent of Executive, assign its
rights and obligations under this Agreement to any other corporation, firm or
other business entity with or into which Company may merge or consolidate, or
to which Company may sell or transfer all or substantially all of its assets,
or of which 50% or more of the equity investment and of the voting control is
owned, directly or indirectly, by, or is under common ownership with,
Company.  This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.


 


10.6.                        No Waiver.  No term or condition of this Agreement shall
be deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought.  Any written waiver shall not be deemed a
continuing waiver unless specifically stated, shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than that specifically
waived.


 


10.7.                        Severability.   The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be judicially
unenforceable and/or invalid by a court of competent jurisdiction, in whole or
in part, the remaining provisions shall nevertheless be binding, enforceable
and in full force and effect.


 


10.8.                        Titles and Headings.  The titles and headings of  the various Sections of this Agreement are
intended solely for convenience of reference and not intended for any purpose
whatsoever to explain, modify or place any construction upon any of the
provisions hereof.


 


10.9.                        Remedies.  Executive recognizes that money damages alone
may not adequately compensate Company in the event of breach by Executive of
this Agreement, and Executive therefore agrees that, in addition to all other
remedies available to Company at law, in equity or otherwise, Company may be
entitled to injunctive relief for the enforcement hereof.  (For purposes of clarification, Executive’s
consent to injunctive relief is subject to Company first proving a material
breach of this Agreement.)  All rights
and remedies hereunder are cumulative and are in addition to and not exclusive
of any other rights and remedies available at law, in equity, by agreement or
otherwise.


 


10.10.                  Validity.  In the event that any provision of this
Agreement shall be determined to be unenforceable by reason of its extension
for too great a period of time or over too large a geographic area or over too
great a range of activities, it shall be interpreted to extend only over the
maximum period of time, geographic area or range of activities as to which it
may be enforceable.  If, after
application of the preceding sentence, any provision of this Agreement shall be
determined to be invalid, illegal or otherwise unenforceable by a court of
competent jurisdiction, the validity, legality and enforceability of the other
provisions of this Agreement shall not be affected thereby.  Except as otherwise provided in this Section 10,
any invalid, illegal or unenforceable provision of this Agreement shall be
severable, and after any such severance, all other provisions hereof shall
remain in full force and effect.


 


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10.11.                  Notices.  For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when hand delivered (which shall
include personal delivery and delivery by courier, messenger or overnight
delivery service) or mailed by certified mail, return receipt requested,
postage prepaid, addressed as follows:


 


	
  If to Executive:

  	
  At his home address in accordance with the
  Company’s records.

  
	
   

  	
   

  
	
  If to Company:

  	
  2021 Cabot Boulevard West

  
	
   

  	
  Langhorne, PA 19047

  



 


or to such other address of which either party gives notice to the
other party in accordance herewith, except that notices of change of address
shall be effective only upon receipt.


 


10.12.                  Counterparts.  This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.


 


* * * * *


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Employment Agreement on the day and year first written above.


 


 


	
   

  	
  POWER MEDICAL INTERVENTIONS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ MICHAEL WHITMAN

  
	
   

  	
   

  	
      Name:

  	
  Michael Whitman

  
	
   

  	
   

  	
      Title:

  	
  President & CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ JOSEPH CAMARATTA

  
	
   

  	
  Joseph Camaratta

  



 


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