Exhibit 10.1
AMENDMENT NO. 3 TO
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amendment No. 3 is entered
into as of the 5th day of August, 2009 (the
“Amendment”), by and between Richard E. Davis (the
“Executive”) and NMT Medical, Inc., a Delaware
corporation (the “Company”), to amend the Amended and
Restated Employment Agreement, dated as of May 20, 2004, as
amended by Amendment No. 1 to the Amended and Restated
Employment Agreement, dated as of August 14, 2006, and
Amendment No. 2 to the Amended and Restated Employment
Agreement, dated as of April 15, 2008, by and between the
Executive and the Company (as amended, the
“Agreement”). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the
Agreement.
WHEREAS, the Parties, acting in
accordance with Section 23 of the Agreement, desire to amend
the Agreement to provide for (i) an additional week of
vacation for the Executive and (ii) to extend the time period
in which the Executive’s Options can be exercised following
both involuntary termination without Cause and termination by the
Executive without Cause;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. The reference to “three
weeks of vacation” in Section 7(b) shall be replaced
with the following:
“four weeks of
vacation”
2. The reference to “360
days” in Section 14 of the Agreement shall be replaced
with the following:
“one
(1) year”
3. The reference to “90
days” in
