Exhibit 10.3
AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT
This Amendment No. 1 to
Employment Agreement (this “ Amendment No. 1
”) is made and entered into as of December 31, 2008, by and
between Masimo Corporation, a Delaware corporation (the “
Company ”), and Joe E. Kiani (the “
Executive ”).
Recitals
WHEREAS, the Company and the
Executive are parties to that certain Employment Agreement, dated
as of July 19, 2007 (the “ Employment Agreement
”); and
WHEREAS, the Company and the
Executive desire to amend the Employment Agreement as set forth in
this Amendment No. 1.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, and with
reference to the above recitals, the parties hereby agree as
follows:
ARTICLE 1
AMENDMENTS
1.1 AMENDMENT TO SECTION 8.1.
Section 8.1 of the Employment Agreement is amended and
restated in its entirety to read as follows:
“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 three (3) years, in substantially
equal monthly installments commencing within 30 days following the
Executive’s death. 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.”
1.2 AMENDMENT TO SECTION 8.2. The
third sentence of Section 8.2 of the Employment Agreement is
amended by inserting “To the extent permitted by Treasury
Regulation § 1.409A-3(i)(l)(ii)(A),” immediately before
“such disability benefits shall be reduced”.
1.3 AMENDMENT TO SECTION 8.4. The
second sentence of Section 8.4 of the Employment Agreement is
amended by inserting “over two years” immediately after
“Such amount shall be paid in installments”.
1.4 AMENDMENT TO SECTION 8.5.
Section 8.5 is amended and restated in its entirety to read as
follows:
“8.5 EMPLOYEE BENEFIT
PLANS.
(i) 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.
(ii) In the event that the
Executive’s participation in any such plan or program is
barred, the Company shall reimburse expenses actually incurred by
the Executive during such period to obtain similar coverage, but
only to the extent Executive’s requested reimbursement of
expenses for similar coverage does not exceed the Company’s
premiums or contributions that the Company would otherwise pay
under the terms of this Agreement as of the date of the
Executive’s termination, or date of payment if later, to
continue Executive’s participation in the underlying plan for
the period the expenses were incurred by the Executive. Expenses
reimbursable under this paragraph shall be reimbursed within thirty
(30) days following Executive’s submission to the
Company of the reimbursement request and supporting documentation
reasonably requested by the Company and in no event later than the
end of the calendar year following the calendar year in which the
expenses were incurred by Executive. The expenses eligible for
reimbursement under this paragraph during any calendar year shall
not affect the expenses eligible for reimbursement under this
paragraph in any other calendar year.”
1.5 AMENDMENT TO SECTION 8.7.
Section 8.7 of the Employment Agreement is amended and
restated in its entirety to read as follows:
“8.7 CODE SECTION 409A
COMPLIANCE. Notwithstanding anything in this Section 8 to the
contrary, if any benefit or amount payable to the Executive under
this Section 8 on account of the Executive’s termination
of employment constitutes “nonqualified deferred
compensatio
