Exhibit 10.1
MASIMO CORPORATION
INDEMNITY
AGREEMENT
THIS INDEMNITY
AGREEMENT (this “
Agreement ”) is made and entered into this [
] day of [
] by and between M ASIMO C ORPORATION , a Delaware corporation (the “
Company ”), and [
] (“ Agent ”).
R ECITALS
WHEREAS , Agent performs a valuable service to the
Company in [his/her] capacity as [
] of the Company;
WHEREAS , the Company’s Amended and Restated
Bylaws (the “ Bylaws ”), which were
approved by the stockholders of the Company, provide for the
indemnification of the directors, officers, employees and other
agents of the Company, including persons serving at the request of
the Company in such capacities with other corporations or
enterprises, as authorized by the Delaware General Corporation Law
(the “ DGCL ”);
WHEREAS , the Bylaws and the DGCL, by their
non-exclusive nature, permit contracts between the Company and its
agents, officers, employees and other agents with respect to
indemnification of such persons; and
WHEREAS , in order to induce Agent to continue to serve
as [
] of the Company, the Company has determined and agreed to enter
into this Agreement with Agent.
NOW, THEREFORE
, in consideration of Agent’s
continued service as [
] of the Company after the date hereof, the parties hereto agree as
follows:
A GREEMENT
1. Services to the Company.
Agent will serve, at the will of the Company or under separate
contract, if any such contract exists, as [
] of the Company or as a director, executive officer or other
fiduciary of an affiliate of the Company (including any employee
benefit plan of the Company) faithfully and to the best of
Agent’s ability so long as Agent is duly elected and
qualified in accordance with the provisions of the Bylaws or other
applicable charter documents of the Company or such affiliate;
provided, however, that Agent may at any time and for any
reason resign from such position (subject to any contractual
obligation that Agent may have assumed apart from this Agreement)
and that the Company or any affiliate shall have no obligation
under this Agreement to continue Agent in any such
position.
2. Indemnity of Agent. The
Company hereby agrees to hold harmless and indemnify Agent to the
fullest extent authorized or permitted by the provisions of the
Bylaws and the DGCL, as the same may be amended from time to time
(but only to the extent that such amendment permits the Company to
provide broader indemnification rights than the Bylaws or the DGCL
permitted prior to adoption of such amendment).
3. Additional Indemnity. In addition to
and not in limitation of the indemnification otherwise provided for
herein, and subject only to the exclusions set forth in
Section 4 hereof, the Company hereby further agrees to hold
harmless and indemnify Agent:
(a) against any and all expenses
(including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other
amounts that Agent becomes legally obligated to pay because of any
claim or claims made against or by Agent in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or
investigative (including an action by or in the right of the
Company) to which Agent is, was or at any time becomes a party, or
is threatened to be made a party, by reason of the fact that Agent
is, was or at any time becomes a director, officer, employee or
other agent of the Company, or is or was serving or at any time
serves at the request of the Company as a director, officer,
employee or other agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise;
and
(b) otherwise to the fullest extent
as may be provided to Agent by the Company under the
non-exclusivity provisions of the DGCL and Article IX of the
Bylaws.
4. Limitations on Additional
Indemnity. No indemnity pursuant to Section 3 hereof shall
be paid by the Company:
(a) on account of any claim against
Agent solely for an accounting of profits made from the purchase or
sale by Agent of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of
1934, as amended, or similar provisions of any federal, state or
local statutory law;
(b) on account of Agent’s
conduct that is established by a final judgment as knowingly
fraudulent or deliberately dishonest or that constituted willful
misconduct;
(c) on account of Agent’s
conduct that is established by a final judgment as constituting a
breach of Agent’s duty of loyalty to the Company or resulting
in any personal profit or advantage to which Agent was not legally
entitled;
(d) for which payment is actually
made to Agent under a valid and collectible insurance policy or
under a valid and enforceable indemnity clause, bylaw or agreement,
except in respect of any excess beyond payment under such
insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful
(and, in this respect, both the Company and Agent have been advised
that the Securities and Exchange Commission believes that
indemnification for liabilities arising under the federal
securities laws is against public policy and is, therefore,
unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication); or
(f) in connection with any
proceeding (or part thereof) initiated by Agent, or any proceeding
by Agent against the Company or its directors, officers, employees
or other agents, unless (i) such indemnification is expressly
required to be made by law, (ii) the proceeding was authorized
by the Board of Directors of the Company, (iii) such
indemnification is provided by the Company, in its sole discretion,
pursuant to the powers vested in the Company under the DGCL or any
other applicable law, or (iv) the proceeding is initiated
pursuant to Section 9 hereof.
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5. Continuation of Indemnity. All
agreements and obligations of the Company contained herein shall
continue during the period Agent is a director, officer, employee
or other agent of the Company (or is or was serving at the request
of the Company as a director, officer, employee or other agent of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so
long as Agent shall be subject to a
