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As Of Filer Filing For·On·As Docs:Size Issuer Agent 4/17/07 Masimo Corp S-1 44:20M RR Donnelley/FA |
Document/Exhibit Description Pages Size
1: S-1 Form S-1 for Masimo Corporation HTML 2.16M
2: EX-3.1 Amended and Restated Certificate of Incorporation HTML 111K
3: EX-3.3 Bylaws, as Currently in Effect HTML 85K
4: EX-3.4 Amended and Restated Bylaws to Be Effective Upon HTML 83K
Closing of the Offering
5: EX-4.2 Fifth Amended and Restated Registration Rights HTML 280K
Agreement Dated 09/14/1999
6: EX-10.1 Form of Indemnity Agreement HTML 43K
15: EX-10.10 Manufacturing and Purchase Agreement, Dated HTML 47K
08/19/2005
16: EX-10.11 Shelter Labor Services Agreement, Dated 12/27/2000 HTML 177K
17: EX-10.12 Lease Agreement, Effective as of 02/01/2001 HTML 149K
18: EX-10.13 Lease Agreement, Dated 04/14/2003 HTML 92K
19: EX-10.14 Lease Agreement, Dated 12/26/2006 HTML 144K
20: EX-10.15 Purchase Agreement, Dated 07/26/2001 With Jabil HTML 62K
Circuit, Inc.
21: EX-10.16 Contribution and Assignment Agreement, Dated HTML 8.55M
01/01/05 With Masimo Americas, Inc.
22: EX-10.17 Sales and Distribution Agreement, Dated 01/01/2005 HTML 56K
With Masimo Americas, Inc.
23: EX-10.18 Occupancy Agreement, Dated 01/01/2005, With Masimo HTML 35K
Americas, Inc.
24: EX-10.19 Management Services Agreement, Dated 01/01/2005 HTML 31K
With Masimo Americas, Inc.
7: EX-10.2 Employment Agreement, Dated 04/13/2007, With Joe HTML 69K
E. Kiani
25: EX-10.20 Sublease Agreement, Dated 01/31/2004, With HTML 389K
Multilayer Technology, Inc.
26: EX-10.21 Standard Industrial/Commercial Multi-Tenant HTML 351K
Lease-Net, Dated 02/08/2006
27: EX-10.22 Pulse Oximetry & Related Products Capital HTML 226K
Equipment Supplier Agreement
28: EX-10.23 Group Purchasing Agreement-Capital Equipment, HTML 336K
Dated 03/01/2006
29: EX-10.24 Supply Agreement, Dated 02/22/2002 With Wintek HTML 58K
Electro-Optics Corporation
30: EX-10.25 Form of Equipment Purchase and Assignment of HTML 55K
Proceeds
31: EX-10.26 Intercompany Agreement, Dated 01/01/2006, With HTML 61K
Spo2.Com
32: EX-10.27 Intercompany Agreement, Dated 01/01/2006, With HTML 61K
Masimo Japan Corporation
33: EX-10.28 Intercompany Agreement, Dated 01/01/2006, With HTML 63K
Masimo Canada Ulc
34: EX-10.29 Intercompany Agreement, Dated 01/01/2006, With HTML 87K
Masimo Europe Limited
8: EX-10.3 Indefinite Term Employment Contract, Dated HTML 78K
12/31/2005, With Olivier Berthon
35: EX-10.30 Settlement Agreement and Release of Claims, Dated HTML 146K
01/17/2006
36: EX-10.31 Third Amended and Restated 1996 to Stock Option HTML 137K
Plans and Purchase Plans
37: EX-10.32 2004 Stock Option Plans and Restricted Stock HTML 177K
Purchase Plan
38: EX-10.33 2007 Stock Incentive Plan HTML 440K
39: EX-10.34 Amended and Restated Cross-Licensing Agreement HTML 140K
40: EX-10.35 Services Agreement HTML 47K
41: EX-10.36 Adsp-2136X Sharc Rom Agreement, Dated 07/19/2004, HTML 59K
With Analog Devices Inc.
9: EX-10.4 Offer Letter, Dated 03/31/1995, Between Ammar HTML 20K
Al-Ali and the Registrant
10: EX-10.5 Offer Letter, Dated 02/09/1996, Between Bradley R. HTML 21K
Langdale and the Registrant
11: EX-10.6 Offer Letter, Dated 05/29/2002, Between Chris HTML 23K
Kilpatrick and the Registrant
12: EX-10.7 Offer Letter, Dated 02/15/1996, Between Yongsam HTML 21K
Lee and the Registrant
13: EX-10.8 Offer Letter, Dated 03/30/2007, Between Anand HTML 19K
Sampath and the Registrant
14: EX-10.9 Offer Letter, Dated 06/09/2006, Between Mark De HTML 22K
Raad and the Registrant
42: EX-16.1 Letter From Pricewaterhousecoopers LLP HTML 15K
43: EX-21.1 List of Registrant's Subsidiaries HTML 16K
44: EX-23.1 Consent of Independent Registered Public HTML 15K
Accounting Firm
| Employment Agreement, dated 04/13/2007, with Joe E. Kiani |
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of this 13th day of April, 2007, by and between Masimo Corporation, a Delaware corporation (“Company”), and Joe E. Kiani (“Executive”).
RECITALS
A. Executive is a founder of the Company and has been its Chairman and Chief Executive Officer (“CEO”) since its inception. The Board of Directors of the Company (the “Board”) recognizes that the Executive’s contributions as Chairman and CEO have been instrumental to the success of the Company. Executive and Company entered into an employment contract dated May 4, 1996, which was amended by an amendment dated April 2, 1998. The Board and Executive desire to amend and restate such prior agreement pursuant to the terms hereof to assure the Company of the Executive’s continued employment in an executive capacity and to compensate him therefor.
B. Company considers the establishment and maintenance of a sound management to be essential to protecting and enhancing the best interests of the Company and its shareholders.
C. Company’s Board of Directors has determined that appropriate steps should be taken to retain Executive and to reinforce and encourage his continued attention and dedication to his assigned duties.
D. The Company desires to retain the services of the Executive, and the Executive desires to be employed by the Company pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises and the mutual covenants and agreements hereinafter set forth, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT. During the Employment Period (as hereinafter defined), Company hereby agrees to continue to employ Executive and Executive hereby agrees to continue to serve the Company, on the terms and conditions contained in this Agreement.
2. POSITION AND DUTIES. Executive shall serve the Company as its Chairman of the Board and Chief Executive Officer and shall report to the Board of Directors. Executive shall be assigned the responsibilities of such office as they may be modified from time to time by the Board of Directors of the Company provided that such duties are consistent with Executive’s present duties and with Executive’s position. Executive hereby accepts such employment and agrees to devote substantially all of his full business and professional time and energy to the business and affairs of the Company. Notwithstanding the foregoing, the Executive shall be permitted to serve (i) as an employee, consultant, officer and/or director of, and provide services to, Masimo Laboratories, Inc., a Delaware corporation (“Masimo Labs”), and (ii) on the board of directors of any other company or entity.
3. EMPLOYMENT PERIOD. The “Employment Period” shall mean the period commencing on the date hereof, and ending on the later of (i) the third (3rd) anniversary date of this Agreement or (ii) three years following the date on which notice of non-renewal of this Agreement is given to the other by either the Executive or the Company. This Agreement shall be renewed automatically on a daily basis so that the outstanding term is always three (3) years following any effective notice of nonrenewal or of termination given by this Company or the Executive.
4. PLACE OF PERFORMANCE. In connection with his employment by the Company, the Executive shall be based at the Company’s office or facility where, on the date hereof, the Executive is regularly rendering services on behalf of the Company and shall not be required to be absent therefrom on travel status or otherwise more than a reasonable number of days in any calendar year. For purposes of the preceding sentence, the parties hereto agree that a “reasonable number of days” shall mean such number of days which is not in excess of one hundred twenty-five percent (125%) of the number of days on which the Executive was on travel status or otherwise required by the Company to be absent from this principal place of performance during the calendar year immediately prior to the year of computation.
5. COMPENSATION.
5.1 BASE SALARY. In consideration for services performed pursuant to this Agreement, Company will pay or cause to be paid to the Executive, and Executive will be entitled to receive and hereby agrees to accept, an initial annual base salary of Four Hundred Eleven Thousand and Four Hundred Twelve Dollars ($411,412), subject to increases in the discretion of the Board or its annual review Compensation Committee (“Base Salary”), payable in accordance with the Company’s normal payroll payment policy. All Base Salary provided by this Agreement shall be reduced by the annual base salary paid to Executive by Masimo Labs, if applicable.
5.2 BONUS. Executive shall be eligible to receive an annual bonus equal to 50% of his Base Salary based on the Company’s attaining certain financial goals established by the Board (or designated committee). In addition, Executive may be entitled to receive such additional bonus amounts as the Board (or such Committee as may be designated by the Board) shall determine in its discretion. In determining such additional amounts, if any, the Board (or Committee) shall consider among other things Executive’s contribution to the accomplishment of the Company’s long-range business goals, the success of various corporate strategies in which Executive participated, and Executive’s unique services in connection with the maintenance or increase in shareholder values in the Company.
5.3 STOCK OPTIONS AND RELATED INCENTIVE PLANS. Executive shall be eligible to participate in the Company’s existing incentive programs and any additional or successor incentive plan or plans. Any option grants made to Executive pursuant to such plans shall provide for an expiration date consistent with the provisions of such plans, without regard to termination of employment; provided, however, in no event shall any option remain exercisable beyond its stated expiration date.
5.4 EXPENSES. Company shall reimburse Executive for all reasonable expenses incurred and paid by Executive in the course of the performance of his duties pursuant to this
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Agreement. In addition, Company shall reimburse Executive for all reasonable travel and lodging expenses for Executive’s immediate family, if Executive elects to have his immediate family accompany him during his business travel. Notwithstanding anything to the contrary set forth in Company’s Business Travel and Expense Policy, dated October 22, 2003, as may be amended or restated from time to time (the “Travel and Expense Policy”) or Company’s 2006 Employee Handbook, as may be amended or restated from time to time (the “Employee Handbook”), for purposes of this Agreement, “reasonable” expenses shall be deemed to include travel and hospitality expenses for first class airplane travel and accommodations and expenses for travel using private or chartered aircraft. In addition, the following Company reimbursement policies and provisions shall not apply to Executive: (i) the Travel and Expense Policy; and (ii) the section entitled “Expense Reimbursements” in the Employee Handbook.
5.5 FRINGE BENEFITS. The Executive shall be entitled to continue to participate in or receive benefits under all of the Company’s employee benefits plans and arrangements in effect on the date hereof or plans or arrangements providing the Executive with at least equivalent benefits thereunder. The Company agrees that, without the Executive’s consent, it will not make any changes in such plans or arrangements which would adversely affect the Executive’s rights or benefits thereunder. The Executive shall be entitled to participate in or receive benefits under any pension plan, profit-sharing plan, savings plan, stock option plan, life insurance, health-and-accident plan or arrangement made available by the Company in the future to its executives and key management employees, subject to and on a basis consistent with the terms, conditions and overall administration of such plans and arrangements. Nothing paid to the Executive under any plan or arrangement presently in effect or made available in the future shall be deemed to be in lieu of compensation to the Executive hereunder.
5.6 VACATIONS. The Executive shall be entitled to the number of paid vacation days in each calendar year determined by the Company’s Board from time to time for its senior executive officers (prorated in any calendar year during which the Executive is employed by the Company for less than the entire such year in accordance with the number of days in such calendar year during which he is so employed). The Executive shall also be entitled to all paid holidays given by the Company to its senior executive officers.
5.7 PERQUISITES. The Executive shall be entitled to continue to receive the fringe benefits appertaining to the office of Chairman and CEO of the Company in accordance with present practice.
6. CONFIDENTIAL INFORMATION. Executive has entered into and agrees to be bound by the terms and conditions of the Company’s Employee Confidentiality Agreement (the “Confidentiality Agreement”). Executive agrees to execute such other documents (including, but not limited to, new versions of the Confidentiality Agreement) as may be necessary in order to protect the Company’s confidential information.
7. TERMINATION.
7.1 DEATH. The Executive’s employment hereunder shall terminate upon his death.
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7.2 DISABILITY. If, as a result of the Executive’s incapacity due to physical or mental illness, the Executive shall have been absent from his duties hereunder on a full time basis for one hundred twenty (120) consecutive business days, and within thirty (30) days after written notice of termination is given shall not have returned to the performance of his duties hereunder on a full time basis, the Company may terminate the Executive’s employment hereunder.
7.3 CAUSE. The Company may terminate the Executive’s employment hereunder for Cause. For the purposes of this Agreement, the Company shall have “Cause” to terminate the Executive’s employment hereunder upon (i) the willful and continued failure by the Executive to substantially perform his duties hereunder, other than any such failure resulting from the Executive’s incapacity due to physical or mental illness, or (ii) the willful engaging by the Executive in gross misconduct materially injurious to the Company, or (iii) the willful violation by the Executive of the provisions of Confidentiality Agreement hereof provided that such violation results in demonstrably material injury to the Company. For purposes of this paragraph, no act, or failure to act, on the Executive’s part shall be considered “willful” unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interests of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to the Executive a copy of a resolution, duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for the purpose (after reasonable notice to the Executive and an opportunity for him, together with his counsel, to be heard before the Board), finding that in the good faith opinion of the Board the Executive was guilty of conduct set forth above in clause (i), (ii), or (iii), and specifying the particulars thereof in detail.
7.4 TERMINATION BY THE EXECUTIVE. The Executive may terminate his employment hereunder (i) for Good Reason, (ii) if his health should become impaired to an extent that makes the continued performance of his duties hereunder hazardous to his physical or mental health or his life, or (iii) at any time by giving six months’ written notice to the Company of his intention to terminate. For purposes of this Agreement, “Good Reason” shall mean (A) any assignment to the Executive of any duties other than those contemplated by, or any limitation of the powers of the Executive in any respect not contemplated by Section 2 hereof, except in connection with termination of the Executive’s employment for Cause, (B) a reduction in the Executive’s rate of compensation, or a reduction in the Executive’s fringe benefits or any other failure by the Company to comply with Section 5 hereof, (C) failure by the Company to comply with Section 4 hereof or (D) a “Change in Control” as that term is defined in Section 9 below.
7.5 NOTICE OF TERMINATION. Any termination by the Company pursuant to subsection 7.3 or by the Executive pursuant to subsection 7.4 above shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated.
7.6 DATE OF TERMINATION. “Date of Termination” shall mean (i) if the Executive’s
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employment is terminated by his death, the date of his death, (ii) if the Executive’s employment is terminated pursuant to subsection 7.2 above, thirty (30) days after Notice of Termination is given (provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such thirty (30) day period), (iii) if the Executive’s employment is terminated pursuant to subsection 7.3 or clause (iii) of subsection 7.4 above, the date specified in the Notice of Termination, or (iv) if the Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given; provided that if within sixty (60) days after a Notice of Termination is given the party receiving such Notice of Termination notifies the other party that a dispute exists concerning the termination, the Date of Termination shall be the date on which the dispute is finally determined, either by mutual written agreement of the parties, by a binding and final arbitration award or by a final judgment, order or decree of a court of competent jurisdiction (the time for appeal therefrom having expired and no appeal having been perfected).
8. COMPENSATION UPON TERMINATION, DEATH OR DURING DISABILITY.
8.1 DEATH. If the Executive’s employment shall be terminated by reason of his death, the Company shall pay to such person as he shall designate in a notice filed with the Company, or, if no such person shall be designated, to his estate as a death benefit, an amount equal to one-half (1/2) of the Executive’s Base Salary at the rate in effect on the date of the Executive’s death. Such amount shall be paid for the duration of this Agreement, or three (3) years, whichever is longer, in substantially equal monthly installments at the same time as Base Salary is paid hereunder. This amount shall be exclusive of and in addition to any payments the Executive’s surviving spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy presently maintained by the Company.
8.2 DISABILITY. During any period that the Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Executive shall continue to receive his full Base Salary and incentive compensation until the Executive’s employment is terminated pursuant to subsection 7.2 hereof, or until the Executive terminates his employment pursuant to clause (ii) of subsection 7.4 hereof, whichever first occurs. After termination, the Executive shall be paid one-half (1/2) of his Base Salary at the rate then in effect for three (3) years. Such disability benefits shall be reduced by any disability payment otherwise payable by or pursuant to plans provided by the Company and actually paid to the Executive and shall be paid in substantially equal monthly installments at the same times as Base Salary is paid hereunder.
8.3 CAUSE. If the Executive’s employment shall be terminated for Cause, the Company shall pay the Executive his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further obligations to the Executive under this Agreement.
8.4 OTHER. If the Company shall terminate the Executive’s employment other than pursuant to subsections 7.1, 7.2 or 7.3 hereof or if the Executive shall terminate his employment pursuant to clause (i) of subsection 7.4 hereof, then the Company shall pay to Executive in cash a severance benefit equal to Executive’s Base Salary at the rate then in effect for a period of two
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(2) years. Such severance pay shall be payable in accordance with the Company’s normal payroll payment policy. Company shall vest all of Executive’s stock options and issue the stock therefor as additional compensation. Company shall also pay the withholding tax due on the issuance of such stock at the “Supplemental Payment Rate” to the federal and state taxing authorities.
8.5 EMPLOYEE BENEFIT PLANS. Unless the Executive’s employment is terminated pursuant to subsection 7.3 hereof, the Company shall maintain in full force and effect, for the continued benefit of the Executive for the full term of this Agreement all employee benefit plans and programs in which the Executive was entitled to participate immediately prior to the Date of Termination provided that the Executive’s continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive’s participation in any such plan or program is barred, the Executive shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations made by the Company to him, to his account or on his behalf under such plans and programs from which his continued participation is barred.
8.6 PARTICIPATION IN FUTURE FINANCINGS. If Executive’s employment is terminated other than pursuant to subsections 7.1, 7.2 or 7.3 hereof or if Executive shall terminate his employment pursuant to clause (i) of subsection 7.4 hereof, then until immediately prior to the time the Company has completed an initial public offering, the Executive shall have a preemptive right to purchase or subscribe for (i) any shares of Common Stock, (ii) any other equity security of the Company, including, without limitation, shares of Preferred Stock, (iii) any option, other than options granted pursuant to an employee stock option plan, warrant or other right to subscribe for, purchase or otherwise acquire any equity security of the Company, or (iv) any debt Securities (the “Offered Securities”). Executive shall have a preemptive right to purchase or subscribe for that portion of the Offered Securities as the aggregate number of shares of Common Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares) then held by or issuable to Executive bears to the total number of outstanding shares of Common Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares) of the Company then held by or issuable to any person as a result of any convertible security, warrant or option, other than options granted pursuant to an employee stock option plan.
8.7 CODE SECTION 409A COMPLIANCE. Notwithstanding anything in this Section 8 to the contrary, if the Company determines in good faith that any payment or benefit to the Executive under this Section 8 constitutes a “deferral of compensation” under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (as set forth in Treasury Regulations or binding administrative notices or rulings issued by the Internal Revenue Service), and the Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), the Company shall delay commencement of any such payment or benefit until six months after the Executive’s applicable Date of Termination (the “409A Suspension Period”). Within 14 calendar days after the end of the 409A Suspension Period, the Company shall pay to the Executive (or his estate or beneficiary, as applicable) a lump sum payment in cash equal to any payments (including interest on any such payments, at an interest rate of not less than the average prime interest rate, as published in the Wall Street Journal, over the 409A Suspension Period) and benefits that the Company would otherwise have been required
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to provide under this Section 8 but for the imposition of the 409A Suspension Period. Thereafter, the Executive shall receive any remaining payments and benefits due under this Section 8 in accordance with the terms of this Section (as if there had not been any suspension period beforehand).
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8.8 PARACHUTE PAYMENTS.
(i) If any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to the Executive or for the Executive’s benefit paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Executive’s employment with the Company or a change in ownership or effective control of the Company or of a substantial portion of its assets (a “Parachute Payment” or “Parachute Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties, other than interest and penalties imposed by reason of the Executive’s failure to file timely a tax return or pay taxes shown to be due on the Executive’s return), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Parachute Payment or Parachute Payments.
(ii) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made at the Company’s expense by the Company’s regular outside auditors (the “Accounting Firm”). The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation, to the Company and the Executive within ten days of the Termination Date, if applicable, or promptly upon request by the Company or by the Executive (provided the Executive reasonably believes that any of the Parachute Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to a Parachute Payment or Parachute Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such Parachute Payment or Parachute Payments. Within ten days of the delivery of the Determination to the Executive, the Executive shall have the right to dispute the Determination (the “Dispute”). The Gross-Up Payment, if any, as determined pursuant to this subsection 8.8(ii) shall be paid by the Company to the Executive within ten days of the receipt of the Accounting Firm’s determination notwithstanding the existence of any Dispute. If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and the Executive subject to the application of clause (iii) below. The Company and the Executive shall resolve any Dispute in accordance with the terms of this Agreement. Notwithstanding the foregoing, in no event shall payment of the Gross-Up Payment occur before the earlier of the Executive’s termination of employment with the Company or a “change in control event” within the meaning of Proposed Treasury Regulation § 1.409A-3(g)(5) or any successor final regulation (a “Qualifying Change in Control”). If the Executive becomes entitled to receive a Gross-Up Payment in connection with a Change in Control that is not a Qualifying Change in Control, the unpaid Gross-Up Payment shall accrue interest an annual interest rate of prime plus 1% until paid immediately following the Executive’s Date of Termination; however, if the Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i),
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then the Company shall pay the Executive the deferred Gross-Up Payment on the date that is six months after the Executive’s Date of Termination.
(iii) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, the Company and the Executive acknowledge that it is possible that a Gross-Up Payment (or a portion thereof) will be paid that should not have been paid (an “Excess Payment”) or a Gross-Up Payment (or a portion thereof) that should have been paid will not have been paid (an “Underpayment”). An Underpayment shall be deemed to have occurred (a) upon notice (formal or informal) to the Executive from any governmental taxing authority that the Executive’s tax liability (whether in respect of the Executive’s current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Parachute Payment or Parachute Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (b) upon a determination by a court, (c) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return) or (d) upon the resolution of the Dispute to the Executive’s satisfaction. If an Underpayment occurs, the Executive shall promptly notify the Company and the Company shall promptly, but in any event, at least five days prior to the date on which the applicable government taxing authority has requested payment, pay to the Executive an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of the Executive’s failure to file timely a tax return or pay taxes shown to be due on the Executive’s return) imposed on the Underpayment. If, however, no notice of an Underpayment having been made is received by the Company within one year of the date of the payment of the Gross-Up Payment by the Company to the Executive, then no payments shall be owed by the Company under this subsection 8.8(iii). An Excess Payment shall be deemed to have occurred upon a “Final Determination” (as hereinafter defined) that the Excise Tax shall not be imposed upon a Parachute Payment or Parachute Payments (or portion thereof) with respect to which the Executive had previously received a Gross-Up Payment. A “Final Determination” shall be deemed to have occurred when the Executive has received from the applicable government taxing authority a refund of taxes or other reduction in the Executive’s tax liability by reason of the Excise Payment and upon either (x) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds the Executive and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (y) the statute of limitations with respect to the Executive’s applicable tax return has expired. If an Excess Payment is determined to have been made, the Executive shall pay to the Company on demand (but not less than ten days after the determination of such Excess Payment and written notice has been delivered to the Executive) the amount of the Excess Payment plus interest at an annual rate equal to the Applicable Federal Rate provided for in Section 1274(d) of the Code from the date the Gross-Up Payment (to which the Excess Payment relates) was paid to the Executive until the date of repayment to the Company. If, however, no notice of an Excess Payment having been made is received by the Executive within one year of the date of the payment of the Gross-Up Payment by the Company to the Executive, then no payments shall be owed by the Executive under this subsection 8.8(iii).
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(iv) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Parachute Payment or Parachute Payments, the Company shall pay to the applicable government taxing authorities as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Parachute Payment or Parachute Payments or the Gross Up Payment.
9. CHANGE IN CONTROL OF THE COMPANY. For purposes of this Agreement “Change in Control” shall be deemed to have occurred at such time as:
(i) any person (including any syndicate or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or any successor provision to either of the foregoing) is or becomes the beneficial owner, directly or indirectly, of shares of capital stock of the Company entitling such person to exercise more than 35% of the total voting power of all voting shares of the Company; or
(ii) there shall occur any consolidation of the Company with, or merger of the Company into, any other person, individual, corporation, limited liability company, partnership or other entity (a “Person”), any merger of another person into the Company, or any sale or transfer of all or substantially all of the assets of the Company to another Person (other than (a) a merger which is effected solely to change the jurisdiction of incorporation of the Company or (b) any consolidation with or merger of the Company into a wholly owned subsidiary or of a wholly owned subsidiary into the Company, or any sale or transfer by the Company of all or substantially all of its assets to one or more of its wholly owned subsidiaries in any one transaction or a series of transactions; provided, in each case that the resulting corporation (if not the Company) or each such subsidiary assumes or guarantees the obligations of the Company hereunder; or
(iii) there shall occur a change in the Board of Directors of the Company in which the individuals who constituted the Board of Directors of the Company at the beginning of the two-year period immediately preceding such change (together with any other director whose election by the Board of Directors of the Company or whose nomination for election by the stockholders of the Company was approved by a vote of at least a majority of the directors then in office either who were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office.
10. BINDING AGREEMENTS. This Agreement and all rights of the Executive hereunder shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
11. NON-WAIVER OF RIGHTS. The failure to enforce, at any time, any of the provisions of this Agreement, or to require, at any time, performance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provision or to affect either the validity of this Agreement, or any part hereof, or the right of either party thereafter to enforce each and every provision in accordance with the terms of this Agreement.
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12. INVALIDITY OF PROVISIONS. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
13. ASSIGNMENTS. This Agreement is binding upon the parties hereto and their respective successors, assigns, heirs and personal representatives. Except as otherwise provided herein, neither of the parties hereto may make any assignment of this Agreement, or any interest herein, without the prior written consent of the other party, except that, without such consent, this Agreement shall be assigned to any corporation or entity which shall succeed to the business presently being operated by Company, by operation of law or otherwise, including by dissolution, merger, consolidation, transfer of assets, or otherwise.
14. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
15. AMENDMENTS. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing specifically referring hereto, and signed by the parties hereto.
16. NOTICES. For the purposes 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 delivered or mailed by United States certified mail, return receipt requested, postage prepaid, addressed as follows:
| If to the Executive: | 1 Point Catalina | |
| If to the Company: | Masimo Corporation 40 Parker Attention: Chairman of the Board of Directors | |
or to such other address as any party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
17. SURVIVAL. Subsection 5.4 and Sections 6, 8, 10-13, 15-18 and 20 shall survive termination of this Agreement.
18. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement or the making, performance or interpretation thereof shall be settled by arbitration in Orange County, California, in accordance with the Rules of the American Arbitration Association then existing, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. Arbitrators shall be persons experienced in negotiating, making and consummating employment matters. Notwithstanding the pendency of any such dispute or controversy, the Company should continue to pay Executive his full compensation in effect when the notice giving rise to the dispute was given (including, but not limited to, base
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salary and any bonus due) and continue Executive as a participant in all compensation, benefit and insurance plans in which Executive was participating when the notice giving rise to the dispute was given, until the dispute is finally resolved. Amounts paid under this section are in addition to all other amounts due under this Agreement and shall not be offset against or reduce any other amounts due under this Agreement. Judgment may be entered on the arbitrator’s award in any court having jurisdiction; provided, however, that Executive shall be entitled to seek specific performance of his right to be paid during the pendency of any dispute or controversy arising under or in connection with this Agreement.
19. ENTIRE AGREEMENT. This Agreement supersedes all prior employment agreements, both written and oral, between Company and Executive.
20. INTERPRETATION. This Agreement shall in all respects be interpreted, construed and governed by and in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the Company at the direction of the Board has caused this Employment Agreement to be executed as of the day and year first above written.
| “Company” | MASIMO CORPORATION | |||
| By: | /s/ Mark de Raad | |||
| Name: | Mark de Raad | |||
| Its: | Executive Vice President & Chief Financial Officer | |||
| “Executive” | /s/ Joe E. Kiani | |||
| Joe E. Kiani | ||||
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| This ‘S-1’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 4/17/07 | None on these Dates | ||
| 10/22/03 | ||||
| 4/2/98 | ||||
| 5/4/96 | ||||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/28/24 Masimo Corp. 10-K 12/30/23 144:57M 5/01/23 Masimo Corp. 10-K/A 12/31/22 13:3M 3/01/23 Masimo Corp. 10-K 12/31/22 143:76M 11/09/22 Masimo Corp. 10-Q 10/01/22 119:13M 8/10/22 Masimo Corp. 10-Q 7/02/22 123:15M 5/03/22 Masimo Corp. 10-Q 4/02/22 99:10M 2/16/22 Masimo Corp. 10-K 1/01/22 118:77M 10/26/21 Masimo Corp. 10-Q 10/02/21 96:9.8M 7/27/21 Masimo Corp. 10-Q 7/03/21 98:9.7M 4/27/21 Masimo Corp. 10-Q 4/03/21 97:8.8M 2/23/21 Masimo Corp. 10-K 1/02/21 119:66M 10/27/20 Masimo Corp. 10-Q 9/26/20 101:11M |