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
