Form of Indemnity Agreement



 Exhibit 10.1 
 MASIMO CORPORATION 
 INDEMNITY AGREEMENT 
 THIS INDEMNITY AGREEMENT (this “Agreement”) is made and entered into this [    ] day of
[                    ] by and between MASIMO CORPORATION, a Delaware corporation
(the “Company”), and [                    ] (“Agent”). 
 RECITALS 
 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: 
 AGREEMENT 
 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 any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, arbitrational, administrative or
investigative, by reason of the fact that Agent was serving in the capacity referred to herein. 
 6. Partial Indemnification. Agent shall be entitled
under this Agreement to indemnification by the Company for a portion of the 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 in connection with any action, suit or proceeding referred to in Section 3 hereof even if not entitled hereunder to indemnification for the total amount thereof, and the Company shall indemnify Agent for the portion thereof to which
Agent is entitled. 
 7. Notification and Defense of Claim. Not later than 30 days after receipt by Agent of notice of the commencement of any action,
suit or proceeding, Agent will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability
which it may have to Agent otherwise than under this Agreement. With respect to any such action, suit or proceeding as to which Agent notifies the Company of the commencement thereof: 
 (a) the Company will be entitled to participate therein at its own expense; 
 (b) except as otherwise provided below, the Company may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense thereof, with counsel
reasonably satisfactory to Agent. After notice from the Company to Agent of its election to assume the defense thereof, the Company will not be liable to Agent under this Agreement for any legal or other expenses subsequently incurred by Agent in
connection with the defense thereof except for reasonable costs of investigation or otherwise as provided below. Agent shall have the right to employ separate counsel in such action, suit or proceeding but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Agent unless (i) the employment of counsel by Agent has been authorized by the Company, (ii) Agent shall have reasonably concluded,
and so notified the Company, that there is an actual conflict of interest between the Company and Agent in the conduct of the defense of such action or (iii) the Company shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of Agent’s separate counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the
Company or as to which Agent shall have made the conclusion provided for in clause (ii) above; and 
  

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 (c) the Company shall not be liable to indemnify Agent under this Agreement for any amounts paid in
settlement of any action or claim effected without its written consent, which shall not be unreasonably withheld. The Company shall be permitted to settle any action except that it shall not settle any action or claim in any manner which would
impose any penalty or limitation on Agent without Agent’s written consent, which may be given or withheld in Agent’s sole discretion. 
 8.
Expenses. The Company shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by Agent in connection with such proceeding upon receipt of an undertaking by or on behalf of
Agent to repay said amounts if it shall be determined ultimately that Agent is not entitled to be indemnified under the provisions of this Agreement, the Bylaws, the DGCL or otherwise. 
 9. Enforcement. Any right to indemnification or advances granted by this Agreement to Agent shall be enforceable by or on behalf of Agent in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within 90 days of request therefor. Agent, in such enforcement action, if successful in whole or in part, shall be entitled to be paid also
the expense of prosecuting Agent’s claim. It shall be a defense to any action for which a claim for indemnification is made under Section 3 hereof (other than an action brought to enforce a claim for expenses pursuant to Section 8
hereof, provided that the required undertaking has been tendered to the Company) that Agent is not entitled to indemnification because of the limitations set forth in Section 4 hereof. Neither the failure of the Company (including its
Board of Directors or its stockholders) to have made a determination prior to the commencement of such enforcement action that indemnification of Agent is proper in the circumstances, nor an actual determination by the Company (including its Board
of Directors or its stockholders) that such indemnification is improper shall be a defense to the action or create a presumption that Agent is not entitled to indemnification under this Agreement or otherwise. 
 10. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of
Agent, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. 
 11. Non-Exclusivity of Rights. The rights conferred on Agent by this Agreement shall not be exclusive of any other right which Agent may have or hereafter acquire
under any statute, provision of the Company’s Amended and Restated Certificate of Incorporation or Bylaws, each as may be amended from time to time, agreement, vote of stockholders or directors, or otherwise, both as to action in Agent’s
official capacity and as to action in another capacity while holding office. 
 12. Survival of Rights. 
 (a) The rights conferred on Agent by this Agreement shall continue after Agent has ceased to be a director, officer, employee or other agent of the
Company or to serve 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 inure to the benefit of Agent’s
heirs, executors and administrators. 
  

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 (b) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no
such succession had taken place. 
 13. Separability. Each of the provisions of this Agreement is a separate and distinct agreement and independent of
the others, so that if any provision hereof shall be held to be invalid for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. Furthermore, if this Agreement shall be
invalidated in its entirety on any ground, then the Company shall nevertheless indemnify Agent to the fullest extent provided by the Bylaws, the DGCL or any other applicable law. 
 14. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware (without regard to conflicts of laws principles). 
 15. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by both
parties hereto. 
 16. Identical Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement. Facsimile signatures, or signatures delivered by
other electronic transmission, shall be as effective as original signatures. 
 17. Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof. 
 18. Notices. All
notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery if delivered by hand to the party to whom such communication was directed, (ii) when sent by
confirmed electronic mail, with verification of receipt, or by facsimile, in either case, if sent during regular business hours; if not, then on the next business day; or (iii) upon the third business day after the date on which such
communication was mailed if mailed by certified or registered mail, return receipt requested, with postage prepaid. 
 (a) All communications
shall be delivered to Agent at the address indicated on the signature page hereof, or at such other address as Agent shall designate by ten days’ advance written notice to the Company. 
 (b) All communications shall be delivered to the Company at 40 Parker, Irvine, California 92618, or such other address as may have been furnished to
Agent by the Company. 
  

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 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year
first above written. 
  

			
	MASIMO CORPORATION
		
	By:	 	  

	Name:	 	  

	Its:	 	  



  

			
	 AGENT

		
	 Name:
	 	  




			
	 Print Name:
	 	  




			
	 Address:
	 	  

		 	  

		 	  



 [SIGNATURE PAGE TO IDEMNITY
AGREEMENT]