Exhibit 10.8


 


EMPLOYMENT AGREEMENT


(Brian Posner)


 


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 Brian Posner (“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 Chief Financial Officer 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. Notwithstanding anything to the contrary in this Section, Company
acknowledges the Separation Agreement dated December 23, 2008 by and among
Executive, Pharmacopeia, Inc. and Ligand Pharmaceuticals Incorporated and 


 

















 


acknowledges
Executive’ continuing obligations thereunder, including the obligation to
provide certain cooperation.


 


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 $250,000. 
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 


 


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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
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 four weeks
vacation 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 


 


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constraints imposed
by the Company’s business requirements shall accrue beyond the year in
question.


 


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.


 


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“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.


 


“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, at the Company’s
expense, 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.


 


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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, 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.


 


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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-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 initially 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
(being an immediate 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, 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.


 


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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 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 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, “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 Inventions and the benefits thereof
shall immediately become the sole and absolute property of Company and its
assigns.  Executive agrees that all
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 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 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
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 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 reasonably 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 during the term of
Executive’s employment by the Company reasonable out-of-pocket expenses of
Executive’s assistance incurred at the request of Company under this Section will
be reimbursed by Company and following the term of Executive’s employment by
Company, Executive and Company will mutually agree upon a reasonable rate of
reimbursement, in addition to reasonable out-of-pocket expenses, for Executive’s
assistance incurred at the request of Company under this Section.


 


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.


 


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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 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 a
Change of Control, 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 six-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 a
Change of Control, 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 one-year  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)         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 reasonable 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 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.


 


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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.


 


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 


 


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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.


 


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 


 


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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/ BRIAN M. POSNER

  
	
   

  	
   

  	
  Brian Posner

  






 


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