Exhibit 10.3
INDEFINITE TERM EMPLOYMENT
CONTRACT
BETWEEN THE
UNDERSIGNED:
Société MASIMO
EUROPE LIMITED
90 Avenue de LANESSAN
69410 Champagne au Mont
d’Or
Siret n° 47903287200026 - Code
APE: 541 N
Represented by Mr. Joe
KIANI, acting in his capacity as Director of the
aforementioned company. Social Security contributions are paid to
the URSSAF in LYON whose registration number is: N° 691
330000002961734 9
of the one
part,
AND
Mr. Olivier
BERTHON
of the other
part ,
NOW THIS AGREEMENT
WITNESSETH :
ARTICLE 1 :
Appointment
Mr. Olivier BERTHON is
appointed as of the 31st December 2005 full-time
and for an indefinite duration to the post of Managing
Director with « Cadre »
status, position 11 as provided by the applicable
national collective bargaining agreement «
Pharmacie, parapharmacie, produits vétérinaires,
fabrication et commerce » and subject to the
results of a pre-recruitment medical examination.
A nominative notification of
employment was delivered to the URSSAF in Lyon.
According to Law of 6th January
1978, Mr. Olivier BERTHON has a right of access and correction
to the information contained in the contract.
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ARTICLE 2 : Duration
This contract shall remain in force
for an indefinite duration and run without any probationary
period.
ARTICLE 3 : Duties - Place
of work
Article 3.1:
Duties
Mr. Olivier BERTHON will
exercise as Managing Director of the
Company.
The essential duties of
Mr. Olivier BERTHON include the management, coordination and
supervision of routine business matters in all their human,
material, financial, logistic and legal aspects.
A description of the content of the
principal responsibilities of Mr. Olivier BERTHON is enclosed
to the hereby contract. Mr. Olivier BERTHON acknowledges he
thoroughly read it when signing the hereby contract.
The parties agree that Appendix 1
includes the duties of Mr. Olivier BERTHON without any
exhaustiveness or limitation. Mr. Olivier BERTHON’s
position may be modified or may evolve subject to the requirement
of the company, which Mr. Olivier BERTHON agrees provided such
modifications do not completely alter his total cash
compensation.
Article 3.2 : Place of
work
Mr. Olivier BERTHON is informed
that his place of work is located in the premises of the head
office.
Given the substance of his duties,
Mr. Olivier BERTHON acknowledges that he has been informed
that he is expected to travel regularly to see his clients or
prospects, Masimo corporate headquarters in the US, and the
branches of Masimo EMEA for which he is responsible.
ARTICLE 4 : Hours of
work - Remuneration
Article 4.1: Hours of
work
Given the importance of the duties
and responsibilities entrusted to Mr. Olivier BERTHON and the
autonomy he shall enjoy in the decision making process,
Mr. Olivier BERTHON cannot be subject to any predetermined
hours of work and has executive manager status pursuant to Article
L. 212-15-1 of the French Labor Code.
Mr. Olivier BERTHON shall
therefore enjoy a complete freedom and independence in the
organization and management of his schedule to carry out his
assignments and duties. As an executive manager and pursuant to
Article L. 212-15-1 of the French Labor Code, Mr. Olivier
BERTHON shall not be subject to hours of work control.
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Article 4.2: Fixed base
salary
In consideration of his professional
services, Mr. Olivier BERTHON shall receive a fixed base
salary in a gross annual amount of 114.850 Euros payable in 12
monthly installments. The amount of this remuneration is
all-inclusive and irrespective of the time spent by
Mr. Olivier BERTHON to carry out his duties and assignments.
As an executive manager, Mr. Olivier BERTHON is indeed not
subject to hours of work control.
Expenses incurred within his
professional services shall be refunded on presentation of evidence
and according to the Company’s internal policy.
Article 4.3: Variable
compensation
In consideration for his
professional services, the parties agreed that Mr. Olivier
BERTHON shall receive a variable compensation calculated according
to the targets fixed in Appendix 2.
The parties agreed to reappraise
each year the variable compensation as well as the targets fixed by
MASIMO Europe Limited after consultation of the salaried employee
and according to the economic and sales evolution of the Company
through an appendix to the hereby contract.
ARTICLE 5: Relations with
superiors - Discipline
Within the carrying out of his
duties and to ensure its efficiency, Mr. Olivier BERTHON shall
be under the authority of Mr. Joe KIANI or his
designee.
The parties also agreed that
Mr. Olivier BERTHON shall regularly inform the Company about
the evolution of his services for the Company by means of monthly
business reports.
ARTICLE 6 :
Absences
Mr. Olivier BERTHON must
immediately inform the Company of any absence for reasons of
sickness or accident. Mr. Olivier BERTHON must submit to the
Company within 48 hours a medical certificate justifying his
absence. In the event of a sick leave extension, Mr. Olivier
BERTHON must submit to the Company within 48 hours a medical
certificate justifying this extension.
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ARTICLE 7 : Paid Vacation and
Holidays
Mr. Olivier BERTHON is entitled
to 13.4 hours of vacation per month, which is 20 days per year, to
a maximum of 240 hours carryover, in accordance with the standard
Masimo Corporation vacation policy for employees with 6 to 10 years
of service. He will be entitled to take official holidays in
accordance with French Law, so long as total vacation/holiday time
does not exceed 27 days in any year. The period during which
Mr. Olivier BERTHON takes his Vacation shall be determined by
mutual agreement between Mr. Olivier BERTHON and his
superior.
ARTICLE
8 : Discretion
Mr. Olivier BERTHON undertakes
to observe the utmost discretion about any information, business
strategy, trade secrets and technical knowledge he would have
gained in the course of his employment in the Company and agrees to
be bound by the terms of the Masimo Employee Confidentiality and
Non-Solicitation Agreement, which is attached hereto as Appendix
3 and is incorporated herein by reference.
ARTICLE 9 : Social
benefits
MASIMO EUROPE
LIMITED is affiliated
to:
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•
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for
complementary old age pension :
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AGRR,
31 rue Mazenod, 69408 LYON CEDEX
03.
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•
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for
provision for old age:
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APGIS/AGF,
12 rue Massue, 94684 Vincennes
Cedex
ARTICLE 10: Company
car
For the purpose of his professional
services, the Company puts at Mr. Olivier BERTHON’s
disposal, for professional use, a car: either a Peugeot 307 Estate,
a Vauxhall Astra Estate, a Renault Mégane Estate, a Ford Focus
Estate or an equivalent model.
Mr. Olivier BERTHON is allowed
to use the car entrusted to him for his private use subject to a
limitation of 10.000 kilometers per year, it being agreed that
expenses, including petrol expenses, incurred within the scope of
private use of the car are on no account refunded by the
Company.
Mr. Olivier BERTHON will be
informed of the content of the car rental agreement entered into by
MASIMO Europe Limited. Mr. Olivier BERTHON shall bear the
entire cost of any supplementary service or agreement he would like
to subscribe to.
In the same way, the salaried
employee shall also bear the cost of using the company car beyond
the scope of the rental contract, except in the event of a prior
and written agreement of the Company.
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Mr. Olivier BERTHON is liable for any
damage not covered by the insurance policy agreement signed for the
professional use of the car, for any repair not covered by the
maintenance contract and for any repair prior to the return of the
car.
The private use of a company car is
a benefit in kind which must be taken into account for tax purposes
as well as for the calculation of the amount of social
contributions deducted from Mr. Olivier BERTHON’s
remuneration. A valuation regularization of this benefit in kind
shall be made at the end of the fiscal year, according to the
monthly statements that Mr. Olivier BERTHON has to make
concerning the private use of his vehicle and to hand in every
month to the Company.
Mr. Olivier BERTHON shall
regularly and every time necessary arrange for the maintenance and
the repairing of his vehicle, it being agreed that all costs are
included in the leasing agreement.
The Company shall entirely refund
Mr. Olivier BERTHON of the petrol, parking and toll expenses
incurred within the scope of his professional services on
presentation of evidence of these expenses.
Mr. Olivier BERTHON shall bear
the cost of any fine, even if sent to the Company.
In the event of an accident,
Mr. Olivier BERTHON shall inform within 48 hours the Company
in the one hand and the insurance company in the other hand and
specify all the circumstances of the accident.
In the event of the termination of
his employment contract and irrespective of the reason for it,
Mr. Olivier BERTHON shall immediately return the vehicle put
at his disposal on the effective date of termination.
The parties formally agreed that the
company vehicle system is not part of Mr. Olivier
BERTHON’s contract but part of a collective company policy
for the purpose of its operations. The Company reserves the right
to either modify, replace this benefit by another system, including
the use of a private vehicle subject to the payment of mileage
compensation or to cancel it, in accordance with the evolution of
Mr. Olivier BERTHON’s responsibilities or of its method
of working for instance.
ARTICLE 11: Non
Competition
Article 11.1: Basis for
Non-Compete Obligation
Given the nature of his functions,
the confidential information (know-how, technical and commercial
practices, etc.) of which he may become aware, or be informed, in
the exercise of his responsibilities and as a result of his
c
