MASIMO CORP

EX-3.1 · tm2617395d1_ex3-1.htm

EX-3.1
 2
 tm2617395d1_ex3-1.htm
 EXHIBIT 3.1

 Exhibit 3.1

 NINTH
AMENDED AND RESTATED

 CERTIFICATE
OF INCORPORATION

OF

MASIMO CORPORATION

 ARTICLE
One

 The name of the corporation
is Masimo Corporation (the “ Corporation ”).

 ARTICLE
Two

 The address of the Corporation’s
registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle, 19808. The name
of its registered agent at such address is Corporation Service Company.

 ARTICLE
Three

 The nature of the business or
purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.

 ARTICLE
Four

 The total number of shares of
capital stock that the Corporation has authority to issue is One Thousand (1,000) shares of common stock, par value $0.001 per share (“ Common
Stock ”). Except as otherwise provided by law, the Common Stock shall have the exclusive right to vote for the election of directors
and for all other purposes. Each share of the Common Stock shall have one vote and the Common Stock shall vote together as a single class.

 ARTICLE
Five

 The Corporation is to have perpetual
existence.

 ARTICLE
Six

 In furtherance and not in limitation
of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the by-laws
of the Corporation.

 ARTICLE
Seven

 Meetings of stockholders may
be held within or outside of the State of Delaware, as the by-laws of the Corporation may provide. The books of the Corporation may be
kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the
by-laws of the Corporation. Election of directors need not be by written ballot unless the by-laws of the Corporation so provide.

 ARTICLE
Eight

 Section 1  The personal
liability of the directors and officers of the Corporation are hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of § 102 of the DGCL, as the same may be amended and supplemented.

 Section 2 The Corporation
shall, to the fullest extent permitted by the provisions of § 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a person.

 Section 3 Any repeal
or modification of the clauses in this Article EIGHT shall be prospective only and shall not adversely affect any right or protection
of a director, officer, agent or other person existing at the time of, or increase the liability of any director or officer of the Corporation
with respect to any acts or omissions of such director, officer, agent or other person occurring prior to, such repeal or modification.

 Section 4 A right to
indemnification, exculpation from liabilities for acts or omissions and rights to advancement of expenses relating thereto arising under
Article EIGHT of the amended and restated certificate of incorporation of the Corporation as in effect immediately prior to the effectiveness
of this Ninth Amended and Restated Certificate of Incorporation shall not be eliminated or impaired by this Ninth Amended and Restated
Certificate of Incorporation with respect to an act or omission by a director or officer occurring prior to such effectiveness.

 ARTICLE
Nine

 The Corporation expressly elects
not to be governed by § 203 of the General Corporation Law of the State of Delaware.

 ARTICLE
Ten

 Subject to Article EIGHT, the
Corporation reserves the right to amend, alter, change or repeal any provision contained in this Ninth Amended and Restated Certificate
of Incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this Ninth Amended and Restated Certificate of Incorporation
in its present form or as hereafter amended herein are granted subject to this reservation.

 ARTICLE
Eleven

 To the maximum extent permitted
from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy of the Corporation in,
or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors
or stockholders, other than those officers, directors or stockholders who are employees of the Corporation. No amendment or repeal of
this Article ELEVEN shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder of
the Corporation for or with respect to any opportunities of which such officer, director, or stockholder becomes aware prior to such amendment
or repeal.

 * * * * *

EX-3.2 · tm2617395d1_ex3-2.htm

EX-3.2
 3
 tm2617395d1_ex3-2.htm
 EXHIBIT 3.2

 Exhibit 3.2

 SEVENTH AMENDED AND
RESTATED BY-LAWS

 OF

 MASIMO CORPORATION

 A Delaware corporation

 (Adopted as of June 10, 2026)

 ARTICLE I

 OFFICES

 Section 1.              
 Registered Office . The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State
of Delaware. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the board
of directors.

 Section 2.              
 Other Offices . The Corporation may also have offices at such other places, both within and without the State of Delaware,
as the board of directors of the corporation (the “ Board of Directors ”) may from time to time determine or the business
of the Corporation may require.

 ARTICLE II

 MEETINGS OF STOCKHOLDERS

 Section 1.              
 Annual Meetings . Annual meetings of stockholders for the election of directors, and for such other business as may be stated
in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as
the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. If the Board of Directors fails
so to determine the time, date and place of meeting, the annual meeting of stockholders shall be held at the registered office of the
Corporation on the first Tuesday in May. If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held
on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they
may transact such other corporate business as shall be stated in the notice of the meeting.

 Section 2.              
 Special Meetings . Special meetings of the stockholders for any purpose or purposes may be called by any duly authorized
officer of the Corporation, or by resolution of the Board of Directors.

 Section 3.              
 Voting . Each stockholder entitled to vote in accordance with the terms of the Ninth Amended and Restated Certificate of
Incorporation of the Corporation, dated as of June 10, 2026 (the “ Certificate of Incorporation ”) and these By-Laws
may vote in person or by proxy, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period.
All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise
provided by the Certificate of Incorporation or the laws of the State of Delaware.

 A complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall
be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is entitled to be
present.

 Section 4.              
 Quorum . Except as otherwise required by law, by the Certificate of Incorporation of the Corporation or by these By-Laws,
the presence, in person or by proxy, of stockholders holding shares constituting a majority of the voting power of the Corporation shall
constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest
of the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At
any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted
that might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally
noticed shall be entitled to vote at any adjournment or adjournments thereof.

 Section 5.              
 Notice of Meetings . Written notice, stating the place, date and time of the meeting, and the general nature of the business
to be considered, shall be given to each stockholder entitled to vote thereat, at his or her address as it appears on the records of the
Corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice
shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

 Section 6.              
 Action Without Meeting . Unless otherwise provided by the Certificate of Incorporation of the Corporation, any action required
or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.

 ARTICLE III

 DIRECTORS

 Section 1.              
 Number and Term . The business and affairs of the Corporation shall be managed under the direction of a Board of Directors
which shall consist of not less than one person. The exact number of directors shall initially be one and may thereafter be fixed from
time to time by the Board of Directors. Directors shall be elected at the annual meeting of stockholders and each director shall be elected
to serve until his or her successor shall be elected and shall qualify. A director need not be a stockholder.

 2

 Section 2.              
 Resignations . Any director may resign at any time. Such resignation shall be made in writing, and shall take effect at the
time specified therein, and if no time be specified, at the time of its receipt by the Chairman, the Managing Director or the Secretary.
The acceptance of a resignation shall not be necessary to make it effective.

 Section 3.              
 Vacancies . If the office of any director becomes vacant, the remaining directors in the office, though less than a quorum,
by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his
or her successor shall be duly chosen. If the office of any director becomes vacant and there are no remaining directors, the stockholders,
by the affirmative vote of the holders of shares constituting a majority of the voting power of the Corporation, at a special meeting
called for such purpose, may appoint any qualified person to fill such vacancy.

 Section 4.              
 Removal . Except as hereinafter provided, any director or directors may be removed either for or without cause at any time
by the affirmative vote of the holders of a majority of the voting power entitled to vote for the election of directors, at an annual
meeting or a special meeting called for the purpose, and the vacancy thus created may be filled, at such meeting, by the affirmative vote
of holders of shares constituting a majority of the voting power of the Corporation.

 Section 5.              
 Committees . The Board of Directors may, by resolution or resolutions passed by a majority of the whole Board of Directors,
designate one or more committees, each committee to consist of one or more directors of the Corporation.

 Any such committee, to the
extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the Corporation.

 Section 6.              
 Meetings . The newly elected director(s) may hold their first meeting for the purpose of organization and the transaction
of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may
be fixed by consent of all the Directors.

 Regular meetings of the Board
of Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Board of
Directors.

 Special meetings of the Board
of Directors may be called by the Chairman or the Managing Director or by the Secretary on the written request of any director, on at
least one day’s notice to each director (except that notice to any director may be waived in writing by such director) and shall
be held at such place or places as may be determined by the Board of Directors, or as shall be stated in the notice of the meeting.

 Unless otherwise restricted
by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors, or any committee designated
by the Board of Directors, may participate in any meeting of the Board of Directors or any committee thereof by means of a conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.

 3

 Section 7.              
 Quorum . A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the
Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until
a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned.
The vote of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors
unless the Certificate of Incorporation of the Corporation or these By-Laws shall require the vote of a greater number.

 Section 8.              
 Compensation . Directors shall not receive any stated salary for their services as directors or as members of committees,
but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing
herein contained shall be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent or
otherwise, and receiving compensation therefor.

 Section 9.              
 Action without Meeting . Any action required or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board of Directors or of
such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or such
committee.

 ARTICLE IV

OFFICERS

 Section 1.              
 Officers . The officers of the Corporation shall be a President, Treasurer and a Secretary, all of whom shall be elected
by the Board of Directors and shall hold office until their successors are duly elected and qualified. In addition, the Board of Directors
may elect a Chief Financial Officer, and such Vice Presidents, Assistant Secretaries, Assistant Treasurers or any other officers with
any other title as it may deem proper. The Board of Directors may appoint such other officers and agents as it may deem advisable, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time
by the Board of Directors.

 Section 2.              
 The President and Chief Executive Officer . The President or Chief Executive Officer, if any, shall have such powers and
shall perform such duties as shall be assigned to them, respectively, by the Board of Directors.

 Section 3.              
 Vice Presidents . Vice Presidents, if any, shall have such powers and shall perform such duties as shall be assigned to them,
respectively, by the Board of Directors.

 Section 4.              
 Chief Financial Officer . The Chief Financial Officer, if any, shall have such powers and shall perform such duties as shall
be assigned to them by the Board of Directors.

 Section 5.              
 Treasurer . The Treasurer shall have the custody of the Corporate funds and securities and shall keep full and accurate account
of receipts and disbursements in books belonging to the Corporation. He or she shall deposit all moneys and other valuables in the name
and to the credit of the Corporation in such depositaries as may be designated by the Board of Directors. He or she shall disburse the
funds of the Corporation as may be ordered by the Board of Directors, the Chairman or the Managing Director, taking proper vouchers for
such disbursements. He or she shall render to the Chairman, the Managing Director and Board of Directors at the regular meetings of the
Board of Directors, or whenever they may request it, an account of all his or her transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, he or she shall give the Corporation a bond for the faithful discharge of his
or her duties in such amount and with such surety as the Board of Directors shall prescribe. If there is no Treasurer appointed by the
Board of Directors of the Corporation, the duties of Treasurer shall be vested in the Chief Financial Officer.

 4

 Section 6.              
 Secretary . The Secretary shall give, or cause to be given, notice of all meetings of stockholders and of the Board of Directors
and all other notices required by law or by these By-Laws, and in case of his or her absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the Chairman or the Managing Director, or by the Board of Directors, upon whose
request the meeting is called as provided in these By-Laws. He or she shall record all the proceedings of the meetings of the Board of
Directors, any committees thereof and the stockholders of the Corporation in a book to be kept for that purpose, and shall perform such
other duties as may be assigned to him or her by the Board of Directors, the Chairman or the Managing Director.

 Section 7.              
 Assistant Treasurers and Assistant Secretaries . Assistant Treasurers and Assistant Secretaries, if any, shall be elected
and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the Board of Directors.

 Section 8.              
 Other Officers, Assistant Officers and Agents . Officers, assistant officers and agents, if any, other than those whose duties
are provided for in these By-Laws, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them,
respectively, by the Board of Directors.

 ARTICLE V

 MISCELLANEOUS

 Section 1.              
 Certificates of Stock . Each stockholder shall be entitled to a certificate of stock certifying the number of shares owned
by such stockholder in the Corporation. Certificates of stock of the Corporation shall be of such form and device as the Board of Directors
may from time to time determine. If authorized by the Board of Directors, the Corporation may issue some or all of the shares of stock
of the Corporation without certificates.

 Section 2.              
 Lost Certificates . A new certificate of stock may be issued in the place of any certificate theretofore issued by the Corporation,
alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed
certificate, or such owner’s legal representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding
double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss
of any such certificate, or the issuance of any such new certificate.

 Section 3.              
 Transfer of Shares . The shares of stock of the Corporation shall be transferable only upon its books by the holders thereof
in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered
to the Corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person
as the Board of Directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall
be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in
the entry of the transfer.

 5

 Section 4.              
 Stockholders Record Date . In order that the Corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors
and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (2) in
the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more
than ten days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case
of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (1) the record date for
determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which
the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without
a meeting when no prior action of the Board of Directors is required by law, shall be the first day on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts
the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close
of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned meeting.

 Section 5.              
 Dividends . Dividends upon the capital stock of the Corporation shall in the discretion of the Board of Directors from time
to time be declared by the Board of Directors out of funds legally available therefor after setting aside of proper reserves.

 Section 6.              
 Fiscal Year . The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.

 Section 7.              
 Checks . All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in
the name of the Corporation shall be signed by such officer or officers, or agent or agents, of the Corporation, and in such manner as
shall be determined from time to time by resolution of the Board of Directors.

 6

 Section 8.              
 Notice And Waiver Of Notice . Whenever any notice is required to be given under these By-Laws, personal notice is not required
unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United
States mail, postage prepaid, addressed to the person entitled thereto at his or her address as it appears on the records of the Corporation,
and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled
to receive notice of any meetings except as otherwise provided by law. Whenever any notice is required to be given under the provisions
of any law, or under the provisions of the Certificate of Incorporation of the Corporation or of these By-Laws, a waiver thereof, in writing
and signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent
to such required notice.

 Section 9.              
 Corporate Seal . The corporate seal shall have inscribed thereon the name of the Corporation and the words “Corporate
Seal, Delaware.”

 ARTICLE VI

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

 Section 1.              
 Nature of Indemnity . Each person who was or is made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether brought by or in the right of the Corporation or any of its subsidiaries and whether civil, criminal,
administrative or investigative (hereinafter a “proceeding”), or any appeal of such proceeding, by reason of or arising out
of the fact that such person, or any other person for whom such person is the legal representative, is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a director, officer, manager, general partner, employee, fiduciary,
or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, may be indemnified
and held harmless by the Corporation to the fullest extent which it is empowered to do so unless prohibited from doing so by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred
by such person in connection with such proceeding), and such indemnification shall inure to the benefit of his or her heirs, executors
and administrators; but only if such person acted in good faith and in a manner which such person reasonably believed to be (in the case
of such person’s official capacity) in the best interests of the Corporation or (in all other cases) not opposed to the best interests
of the Corporation, and in addition, in the case of a criminal action or proceeding, such person had no reasonable cause to believe that
his or her conduct was unlawful; provided that, except as provided in Section 2 of this Article VI, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by
the Board of Directors of the Corporation. The right to indemnification conferred in this Article VI shall be a contract right and, subject
to Sections 2 and 5 hereof, shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding
in advance of its final disposition. The Corporation may, by action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.

 7

 Section 2.              
 Procedure for Indemnification of Directors and Officers . Any indemnification of a director or officer of the Corporation
provided for under Section 1 of this Article VI or advance of expenses provided for under Section 5 of this Article VI shall be made promptly,
and in any event within thirty (30) days, upon the written request of the director or officer. If a determination by the Corporation that
the director or officer is entitled to indemnification pursuant to this Article VI is required, and the Corporation fails to respond within
sixty (60) days to a written request for indemnity, the Corporation shall be deemed to have approved the request. If the Corporation wrongfully
denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request
is not properly made within thirty (30) days, the right to indemnification or advances as granted by this Article VI shall be enforceable
by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the Corporation) that
the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware
for the Corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the Corporation. Neither
the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of
conduct. No officer or director will make any claim for indemnification against the Corporation by reason of the fact that he, she, or
it was a director, officer, employee, or agent of the Corporation or was serving at the request of the Corporation as a partner, trustee,
director, officer, employee, or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts
paid in settlement, losses, expenses, including any advancement thereof, or otherwise and whether such claim is pursuant to any statute,
charter document, bylaw, agreement, or otherwise) with respect to any action, suit, proceeding, complaint, claim, or demand brought by
the Corporation against such officer or director (whether such action, suit, proceeding, complaint, claim, or demand is pursuant to applicable
law or otherwise).

 Section 3.              
 Article Not Exclusive . The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance
of its final disposition conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, By-Laws, agreement, vote of stockholders or disinterested directors
or otherwise.

 Section 4.              
 Insurance . The Corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was
a director, officer, employee, fiduciary, or agent of the Corporation or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, whether or not the Corporation would have the power to indemnify such
person against such liability under this Article VI.

 8

 Section 5.              
 Expenses . Expenses incurred by any person described in Section 1 of this Article VI in defending a proceeding shall be paid
by the Corporation in advance of such proceeding’s final disposition unless otherwise determined by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of the director or officer or other person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the Corporation. Such expenses incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.

 Section 6.              
 Employees and Agents . Persons who are not covered by the foregoing provisions of this Article VI and who are or were employees
or agents of the Corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation,
partnership, joint venture, trust or other enterprise, may be indemnified, and may be advanced expenses, to the extent authorized at any
time or from time to time by the Board of Directors.

 Section 7.              
 Contract Rights . The provisions of this Article VI shall be deemed to be a vested contract right between the Corporation
and each director and officer who serves in any such capacity at any time while this Article VI and the relevant provisions of the General
Corporation Law of the State of Delaware or other applicable law are in effect. Such contract right shall vest for each director and officer
at the time such person is elected or appointed to such position, and no repeal or modification of this Article VI or any such law shall
affect any such vested rights or obligations of any current or former director or officer with respect to any state of facts or proceeding
regardless of when occurring.

 Section 8.              
 Merger or Consolidation . For purposes of this Article VI, references to “the Corporation” shall include, in
addition to the resulting Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under this Article VI with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 ARTICLE VII

 AMENDMENTS

 These By-Laws may be altered,
amended or repealed at any annual meeting of the stockholders (or at any special meeting thereof if notice of such proposed alteration,
amendment or repeal to be considered is contained in the notice of such special meeting) by the affirmative vote of the holders of shares
constituting a majority of the voting power of the Corporation. Except as otherwise provided in the Certificate of Incorporation of the
Corporation, the Board of Directors may by majority vote of those present at any meeting at which a quorum is present alter, amend or
repeal these By-Laws, or enact such other By-Laws as in their judgment may be advisable for the regulation and conduct of the affairs
of the Corporation.

 9

EX-10.1 · tm2617395d1_ex10-1.htm

EX-10.1
 4
 tm2617395d1_ex10-1.htm
 EXHIBIT 10.1

 Exhibit 10.1

 SEPARATION AND CONSULTING AGREEMENT

 This Separation and Consulting
Agreement (this “ Agreement ”) is entered into as of [DATE] (the “ Effective Date ”), by and between
[EXECUTIVE NAME] (the “ Executive ”) and Masimo (the “ Company ”).

 WHEREAS, the Company has entered
into an Agreement and Plan of Merger (the “ Merger Agreement ”) pursuant to which a change in control of the Company
will be consummated (the date on which such closing occurs, the “ Closing Date ”), and the Executive desires to resign
Executive’s employment and the parties desire to set forth the terms of the Executive’s separation from employment and subsequent
consulting engagement in connection therewith;

 WHEREAS, the parties desire
to condition the payment of certain severance benefits upon the Executive’s execution and non-revocation of a general release of
claims and entry into the restrictive covenant agreement set forth in Exhibit A hereto;

 WHEREAS, the Executive has had
a prominent role in the management of the business and the development of the goodwill of the Company and its affiliates, has established
and developed relations and contacts with certain employees and commercial counterparties of the Company and its affiliates, all of which
constitute valuable goodwill of, and could be used by the Executive to compete unfairly with, the Company and its affiliates; and in the
course of the Executive’s employment with the Company, the Executive has obtained confidential and proprietary information and trade
secrets concerning the business and operations of the Company and its affiliates that could be used to compete unfairly with the Company
and its affiliates;

 WHEREAS, the parties acknowledge
and agree that the covenants and restrictions contained in Exhibit A hereto are intended to protect the legitimate interests of
the Company and its affiliates in their respective goodwill, trade secrets and other confidential and proprietary information, and the
Executive desires to acknowledge and reaffirm that the Executive is bound by such covenants and restrictions;

 WHEREAS, the parties wish to
memorialize the separation of the Executive from employment with the Company and set forth their agreement as to the manner in which the
Executive’s employment with the Company will be completed and the terms of the Executive’s subsequent consulting engagement;

 NOW, THEREFORE, in consideration
of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive agree as follows:

 1.             
 Separation of Employment .

 (a) Separation
Date. The Executive’s employment with the Company and its affiliates shall terminate on the Closing Date (as defined in the
Merger Agreement) (the “ Separation Date ”). Effective as of the Separation Date, the Executive hereby resigns from all
positions, officer designations, board memberships, titles, duties, authorities and responsibilities with, arising out of or relating
to the Executive’s employment with the Company and its affiliates, and agrees to execute all additional documents and take such
further steps as may be required to effectuate such resignation. For the avoidance of doubt, the Executive shall continue to receive all
compensation and benefits in effect on the date hereof through the Separation Date.

 (b) Consulting
Period . During the period commencing on the first calendar day immediately following the Separation Date and ending on the date that
is three (3) months thereafter (the “ Consulting Period ”), the Executive shall serve as a consultant to the Company
and shall have the title of Special Advisor. During the Consulting Period, the Executive shall be available on an on-call basis to provide
transition and advisory services as described in Section 7 of this Agreement (the “ Services ”). The Executive agrees
and acknowledges that the Executive shall dedicate reasonable time and attention to performing any agreed Services as Special Advisor,
on an on-call basis as reasonably requested by the Company, and that such time commitment shall not exceed twenty percent (20%) of the
average level of services the Executive performed with the Company in the 36 months prior to the Separation Date (or since the start of
the Executive’s employment with the Company, if shorter) and the Executive shall not be expected to provide the Services in excess
of ten (10) hours in any calendar week during the Consulting Period.

 2.             
 Severance Benefits .

 (a) Accrued
Obligations . On the first regular payroll date following the Separation Date, the Company shall pay the Executive all base salary
accrued and payable through the Separation Date, any annual incentive earned in a fiscal year ended before the Separation Date but not
yet paid to the Executive as of the Separation Date, any accrued but unused paid time off or vacation pay, and any unreimbursed business
expenses accrued and payable in accordance with Company policy, in each case reduced by any required tax withholdings (collectively, the
 “ Accrued Obligations ”). Payment of the Accrued Obligations is not conditioned upon the execution of the Release (as
defined in Section 5(a)).

 (b) Lump
Sum Severance Payment . Subject to Section 5 hereof, the Company shall pay the Executive a lump sum cash severance payment equal to
[three (3)] 1 [two (2)] 2
times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Separation Date (without giving effect
to any reduction that constitutes Good Reason (as defined in the applicable Company severance plan)) and (ii) if applicable, the Executive’s
target annual bonus opportunity for the fiscal year in which the Separation Date occurs (without giving effect to any reduction that constitutes
Good Reason) (the “ Lump Sum Severance Payment ”), payable upon the first payroll date following the Release becoming
effective and irrevocable, subject to Section 5(a) hereof. The Lump Sum Severance Payment shall be reduced by any required tax withholdings.

 (c) Prorated
Annual Bonus . Subject to Section 5 hereof, the Company shall pay the Executive a prorated annual incentive award for the fiscal year
in which the Separation Date occurs, equal to the product of (i) the Executive’s target annual bonus opportunity for such fiscal
year, multiplied by (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company and its subsidiaries
during the fiscal year of termination and the denominator of which is the total number of days in such fiscal year (the “ Prorated
Bonus ”), payable upon the first payroll date following the Release becoming effective and irrevocable,
subject to Section 5(a) hereof . The Prorated Bonus shall be reduced by any required tax withholdings.

 1
 Note to Draft : To be included for Katie.

 2
 Note to Draft : To be included for Charles and Greg.

 (d) COBRA
Reimbursement . Subject to Section 5 hereof and the Executive’s timely election of continuation coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“ COBRA ”), the Company shall reimburse or pay the premiums for the Executive’s
and the Executive’s covered dependents’ participation in the Company’s group health plans pursuant to COBRA for a period
ending on the earliest of (i) eighteen (18) months following the Separation Date, (ii) the Executive becoming eligible for other employer-sponsored
group health benefits or Medicare, and (iii) the expiration of the Executive’s rights under COBRA[; provided, however, that if the
applicable COBRA period extends beyond eighteen (18) months and the Executive ceases to be eligible for COBRA (other than as a result
of becoming eligible for Medicare or coverage under other group health plans), within thirty (30) days following the date the Executive
ceases to be so eligible, the Company shall pay a lump sum amount equal to (A) the remaining COBRA period less the number of months of
COBRA that have previously been provided for as of such date, multiplied by (B) the amount of the COBRA premiums paid in the final month
of COBRA eligibility] 3 .

 (e) Equity
Awards . The Executive’s outstanding and unvested equity awards shall be treated as follows: (i) any outstanding and unvested
equity awards held by the Executive that were granted prior to the effective date of the Merger Agreement shall immediately vest in full
upon the Separation Date; and (ii) any outstanding and unvested equity awards held by the Executive that were granted following the effective
date of the Merger Agreement and prior to the Closing Date shall be governed by the terms of the Merger Agreement and the applicable equity
plan and award agreement(s). All other equity-based awards shall be settled in accordance with the terms of the award agreements pursuant
to which they were granted.

 (f) Consulting
Fee . Subject to the terms and conditions of this Agreement (including Section 9), the Executive’s satisfactory provision of
the Services during the Consulting Period, and the Executive’s compliance with the other terms and conditions of this Agreement,
the Company shall pay the Executive [[a monthly consulting fee equal to one-fortieth (1/40th) of the Executive’s annual base salary
in effect immediately prior to the Separation Date, prorated for any partial months served (the “ Monthly Consulting Fee ”)] 4
// [a monthly consulting fee equal to one-one hundred twentieth (1/120th) of the Executive’s annual base salary in effect immediately
prior to the Separation Date, prorated for any partial months served (the “ Monthly Consulting Fee ”)] 5
// [a monthly consulting fee equal to one-two hundred fortieth (1/240th) of the Executive’s annual base salary in effect immediately
prior to the Separation Date, prorated for any partial months served (the “ Monthly Consulting Fee ”)] 6 .
Notwithstanding anything herein to the contrary, all accrued Monthly Consulting Fees shall be paid in a single lump sum within ten (10)
Business Days following the later of (i) the conclusion of the Consulting Period and (ii) the occurrence of the Second Release Effective
Date; provided, that if the Executive fails to timely execute or revokes the second re-execution of this Agreement as contemplated by
Section 3(i), the Executive shall forfeit any right to receive the Monthly Consulting Fees. In addition, the Company shall reimburse the
Executive for any actual, reasonable and documented out-of-pocket expenses incurred in connection with the Executive’s provision
of Services hereunder, but only to the extent that such expenses are approved in advance by the Company’s then-current Chief Executive
Officer and incurred in accordance with the Company’s travel and expense reimbursement policy. The parties acknowledge and agree
that the Monthly Consulting Fees shall represent fees for services as an independent contractor, and shall therefore be paid without any
deductions or withholdings taken therefrom for taxes or for any other purpose. The Company will issue a Form 1099 to Executive for all
Monthly Consulting Fees. In no event shall the Company be responsible for federal, state or local taxes on the Monthly Consulting Fees
payable hereunder, or the Executive’s internal administrative costs or other costs of doing business.

 3 Note to Draft : This language to be included for Greg and Charles. This benefit is not provided
in Katie’s employment agreement.

 4 Note to Draft : To be included for Charles.

 5 Note to Draft : To be included for Katie.

 6 Note to Draft : To be included for Greg.

 (g) Termination
of Employment Agreement . Effective on the Separation Date, the Executive shall no longer be employed by the Company and all of the
rights and obligations under any employment agreement or arrangement of the Company and the Executive shall terminate, except (i) as provided
in this Section 2 and (ii) all of the rights and obligations of the Company and the Executive under any restrictive covenant provisions
of any employment agreement or arrangement shall survive the Executive’s termination of employment and the termination of such arrangements,
and are incorporated by reference herein and shall continue in full force and effect, in each case, except as modified by this Agreement.

 (h) Section
409A . This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein either shall be
exempt from the requirements of Section 409A of the Internal Revenue Code of 1986 (the “ Code ”) or shall comply with
the requirements of Section 409A of the Code. A termination of employment shall not be deemed to have occurred for purposes of any provision
of this Agreement unless such termination is also a “separation from service” within the meaning of Section 409A of the Code.
If the Executive is deemed to be a “specified employee” within the meaning of Section 409A of the Code, any payments or benefits
due upon a termination of the Executive’s employment under any arrangement that constitutes a “deferral of compensation”
within the meaning of Section 409A of the Code and which do not otherwise qualify under the exemptions under Treasury Regulations Section
1.409A-1 shall be delayed and paid or provided to the Executive in a lump sum on the earlier of (i) the date which is six (6) months and
one day after the Executive’s “separation from service” for any reason other than death, and (ii) the date of the Executive’s
death. Each payment and/or benefit provided hereunder shall be a payment in a series of separate payments for purposes of Section 409A
of the Code.

 3.             
 Release and Waiver .

 (a) General
Release . With the sole exceptions described in this Section 3, the Executive (on behalf of the Executive and all of the Executive’s
heirs, assigns, legal representatives, successors in interest, or any person claiming through the Executive) hereby releases the Company
and each of its divisions, subsidiaries, benefit plans and all other current or future affiliated entities, as well as all their current
and former employees, officers, directors, agents, shareholders, attorneys, accountants, partners, insurers, advisors, partnerships, assigns,
successors, heirs, predecessors in interest, joint venturers, and affiliated persons of all those entities, each in their respective official
capacities as such (collectively, “ Released Parties ”), from all liabilities, causes of action, charges, complaints,
suits, claims, obligations, costs, losses, damages, injuries, rights, judgments, attorneys’ fees, expenses, bonds, bills, penalties,
fines, liens, and all other legal responsibilities of any form or nature whatsoever, in law or equity, fixed or contingent, whether known
or unknown or suspected or unsuspected to exist by the Executive, which the Executive has or had or may claim to have by reason of any
and all matters from the beginning of time through the date Executive executes or re-executes (as applicable) this Agreement, including
but not limited to those arising from the Executive’s employment and separation from the Company, arising under any plan or policy
of the Company or its affiliates, or pursuant to any federal, state, or local laws, regulations, orders or other requirements, including,
but not limited to, federal, state and local wage and hour laws, federal, state and local whistleblower laws, federal, state and local
fair employment laws, federal, state and local anti-discrimination laws, federal, state and local labor laws, Section 1981 of the Civil
Rights Act of 1866, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans with Disabilities
Act, the Employee Retirement Income Security Act of 1974, the Vietnam Era Veterans Readjustment Assistance Act, the Fair Credit Reporting
Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act (“ ADEA ”), as amended by the Older Workers
Benefit Protection Act, the Worker Adjustment and Retraining Notification Act of 1988, the Occupational Safety and Health Act, the Sarbanes-Oxley
Act of 2002, and the Genetic Information Nondiscrimination Act of 2008, as each has been or may be amended from time to time (hereinafter,
all such matters will be collectively referred to as “ Released Actions ”). This release does not (i) extend to rights
the Executive may have to enforce the provisions of this Agreement, (ii) waive or release claims that cannot be released as a matter of
law (including, but not limited to, claims under applicable state law for workers’ compensation benefits and/or indemnification)
or any claims arising solely after the effective date of this Agreement, (iii) waive or release claims for any reimbursable business expenses
appropriately incurred at or prior to the Separation Date that have not been paid to the Executive in full as of such date, (iv) waive
or release claims the Executive has as of the date hereof relating to any rights of indemnification, advancement and/or defense arising
under the Company’s (or any affiliate’s) certificate (or articles) of incorporation, bylaws, shareholders agreements, operating
agreements or other organizational or governance documents in effect on the date hereof, or any indemnification, advancement and/or defense
rights under any contract the Executive has with the Company (or any affiliate) in effect on the date hereof, or (v) waive or release
claims relating to any right the Executive may have as of the date hereof as an insured under any director and officer, committee member,
management, employment practices, general liability or other insurance policy or excess policy.

 (b) Knowing
and Voluntary Release of Statutory Claims . The Executive specifically intends to include, as a Released Action, any and all claims
relating to any violation of the statutes referenced herein (including claims related to actual or perceived race, religion, creed, color,
national origin, ancestry, citizenship, age, physical disability, mental disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, sexual orientation, military or veteran status, or any other legally protected characteristic,
or for having engaged in any protected activity), under Title VII of the 1964 Civil Rights Act, the Equal Pay Act, the Americans with
Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, Section 1981 of the Civil Rights Act of 1866, the Civil
Rights Act of 1991, the Employee Retirement Income Security Act of 1974, the ADEA, as amended by the Older Workers Benefit Protection
Act, the Worker Adjustment and Retraining Notification Act of 1988, the Occupational Safety and Health Act, the Sarbanes-Oxley Act of
2002, the Genetic Information Nondiscrimination Act of 2008, or any other law, regulation or ordinance that may have arisen before the
effective date of this Agreement, including but not limited to those arising from the Executive’s employment and separation from
the Company.

 (c) ADEA .
Age Discrimination Is Specifically Intended to Be Included As a Released Action. The Executive acknowledges that the Executive specifically
intends that Released Actions shall include the ADEA, except for any allegation that a breach of the ADEA occurred following the effective
date of this Agreement. This provision does not extend to any rights the Executive may have to challenge the validity of the release of
claims arising under the ADEA.

 (d) No
Pending Charges or Lawsuits . The Executive represents that, as of the date the Executive executes this Agreement, the Executive has
not filed any complaints or charges or lawsuits against the Company or any other Released Party with any governmental agency or in any
court. The Executive agrees that the Executive will not file in any court any lawsuits against the Company or any other Released Party
regarding any Released Action at any time in the future; provided, however, this shall not limit the Executive from pursuing any claim
or lawsuit not released by the Executive under this Agreement. Nothing in this Agreement shall be construed to prevent the Executive from
filing a complaint or charge with, providing information to, and/or from participating in any investigation or proceeding conducted by
the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, the Securities and Exchange Commission,
the National Labor Relations Board, or any other federal or state government agency. However, the Executive agrees that by signing this
Agreement, the Executive is fully waiving the Executive’s right to obtain all monetary or other relief that could otherwise be recoverable
in any legal proceeding brought by the Executive against the Company or any Released Party.

 (e) Additional
Consideration . The Executive acknowledges that certain of the payments and benefits described in Sections 2(b), 2(c), 2(d), and 2(f)
are in addition to anything of value to which the Executive already is entitled from the Company and its affiliates and constitute good
and valuable consideration for the release contained in this Section 3.

 (f) Consultation
with Attorney . The Executive is hereby advised to consult with the Executive’s attorney prior to signing this Agreement because
the Executive is giving up significant legal rights. The Executive acknowledges that the Executive has been so advised and has, in fact,
had the opportunity to consult with the Executive’s attorney prior to the Executive’s signing this Agreement.

 (g) Knowing
and Voluntary Waiver . The Executive understands that the Executive was advised that the Executive may consider whether to agree to
the terms contained herein for a period of twenty-one (21) days after the date hereof and nonetheless determined to agree to such terms
and execute and deliver this Agreement on the date hereof. The Executive may rescind the Executive’s release in this Section 3 at
any time prior to the eighth (8th) day following the date on which the Executive executes this Agreement by sending written notice stating
the Executive’s decision to so rescind to the Company and its counsel in accordance with Section 10(d) of this Agreement before
the Release Effective Date. In the event of such a rescission, the Executive shall irrevocably forfeit the Executive’s right to
receive any of the payments or benefits set forth in Sections 2(b), 2(c), 2(d), and 2(f) hereof.

 (h) Re-Execution
of the Release . The Company’s obligations under Sections 2(b), 2(c), and 2(d) of this Agreement are strictly contingent upon
the Executive’s re-execution and non-revocation of this Agreement within twenty-one (21) days following the Separation Date (the
date of such re-execution, the “ Re-Execution Date ”). By re-executing this Agreement, the Executive advances to the
Re-Execution Date the Executive’s general waiver and release of all claims against the Released Parties and the other covenants
set forth in this Agreement. The Executive acknowledges the Executive has seven (7) calendar days from the Re-Execution Date to revoke
the Executive’s re-execution of this Agreement. Provided that the Executive does not revoke the Executive’s re-execution of
this Agreement within such seven (7) day period, the “Release Effective Date” shall occur on the eighth (8th) calendar day
after the date on which the Executive re-executes this Agreement.

 (i) Re-Execution
of the Release following the Consulting Period . The Company’s obligation to pay the Monthly Consulting Fees pursuant to Section
2(f) is strictly contingent on the Executive’s second re-execution and non-revocation of this Agreement within twenty-one (21) days
following the termination of the Consulting Period (the date of such second re-execution, the “ Second Re-Execution Date ”).
By re-executing this Agreement following the Consulting Period, the Executive advances to the Second Re-Execution Date the Executive’s
general waiver and release of all claims against the Released Parties and the other covenants set forth in this Agreement. The Executive
acknowledges the Executive has seven (7) calendar days from the Second Re-Execution Date to revoke the Executive’s re-execution
of this Agreement. Provided that the Executive does not revoke the Executive’s second re-execution of this Agreement within such
seven (7) day period, the “Second Release Effective Date” shall occur on the eighth (8th) calendar day after the date on which
the Executive re-executes this Agreement. For the avoidance of doubt, if the Second Release Effective Date does not occur, the Executive
shall forfeit any right to receive the Monthly Consulting Fees pursuant to Section 2(f).

 4.             
 Covenants of Executive and Company .

 (a) Statements
Regarding Relationship with Company . From and following the Separation Date, the Executive shall no longer project or create a circumstance
which permits others to conclude the Executive is an employee, director, officer or other service provider of the Company, except in the
Executive’s capacity as a consultant during the Consulting Period.

 (b) Restrictive
Covenants . The Executive hereby specifically acknowledges and affirms the Executive’s commitments to the Company and its affiliates
pursuant to the restrictive covenants (including non-solicitation, non-competition, and confidential information covenants) set forth
in Exhibit A hereto (the “ Restrictive Covenants ”), which are incorporated by reference into this Agreement and
shall continue in full force and effect. For the avoidance of doubt, the restrictive period of any Restrictive Covenant that contains
a period of time during which it applies post-termination of employment shall commence on the Separation Date.

 (c) Company
Property . The Executive agrees to return within seven (7) Business Days following the Separation Date all of the Company’s property
in the Executive’s custody, possession or control, including but not limited to any security access cards, keys, computer disks,
cellular telephones, memory cards, hard drives, flash drives, laptops, work files, memoranda, notes, passwords, access to digital files,
access to social media accounts, records and other documents made or compiled by the Executive or made available to the Executive during
the term of the Executive’s employment and related to that employment (other than de minimis items).

 5.             
 Conditions to Severance Benefits .

 (a) Release .
Payment of the severance and other benefits described in Sections 2(b), 2(c), 2(d), and 2(f) shall be subject to (i) the Executive’s
execution and re-executions (as applicable) and non-revocation of the general release of claims set forth in Section 3 of this Agreement
(the “ Release ”) within the time period specified herein, and (ii) the Executive’s execution of the Restrictive
Covenants set forth in Exhibit A hereto concurrently with the execution of this Agreement. Notwithstanding the foregoing, the Release
must first become effective, if at all, within sixty (60) days following the Separation Date. If the time period to consider, revoke and
return the Release crosses two of the Executive’s tax years, any portion of the severance benefits described in Sections 2(b) and
2(c) that constitutes deferred compensation subject to Section 409A will, in all events, be paid in the later tax year.

 6.             
 Certain Forfeitures in Event of Breach . The Executive acknowledges and agrees that, notwithstanding
any other provision of this Agreement, in the event the Executive materially breaches any of the Executive’s obligations under this
Agreement (including, but not limited to, Sections 4(b) and 4(c) hereof) or the Restrictive Covenants set forth in Exhibit A hereto,
and such breach is not cured (if capable of cure) within a reasonable period following the Executive’s receipt of written notice
by the Company describing the alleged breach, then the Executive will forfeit the Executive’s right to receive the payments and
benefits set forth in Sections 2(b), 2(c), 2(d), and 2(f) of this Agreement to the extent not theretofore paid to the Executive as of
the date of such breach.

 7.             
 Consulting Services .

 (a) Scope
of Services . During the Consulting Period, the Executive shall provide the following Services on an on-call basis as reasonably requested
by the Company’s then-current Chief Executive Officer or such other senior officer as the Company may designate: (i) transition
support and knowledge transfer to the Executive’s successor and other members of the Company’s management team; (ii) relationship
continuity with material customers, suppliers, business partners and other commercial counterparties of the Company and its affiliates;
(iii) assistance with integration planning and execution in connection with the transactions contemplated by the Merger Agreement; and
(iv) such other advisory and transition services as are mutually agreed upon by the Executive and the Company. The Executive shall perform
the Services in a professional and competent manner consistent with the Executive’s prior performance as an employee of the Company.

 (b) Cooperation
with Litigation . The Executive agrees to reasonably cooperate (including attending meetings) with respect to any claim, arbitral hearing,
lawsuit, action or governmental or internal investigation relating to the business of the Company or its affiliates prior to the Separation
Date. The Executive agrees to provide full and complete disclosure in response to any inquiry in connection with any such matters. To
the extent that the Company’s legal counsel is unable to represent the Executive in connection with any matter as to which the Executive’s
cooperation is requested pursuant to this Section 7(b), the Company shall reimburse the Executive for the Executive’s reasonable
attorneys’ fees and expenses incurred to obtain separate counsel on such matter. The Company shall (i) pay the Executive an hourly
rate equal to the Executive’s annual base salary in effect immediately prior to the Separation Date divided by 2,080 for the Executive’s
time spent following the conclusion of the Consulting Period and (ii) reimburse the Executive for other pre-approved out-of-pocket expenses
reasonably incurred in connection with such cooperation, upon the presentation by the Executive of an itemized accounting of such expenditures,
with supporting receipts. Nothing in this Agreement shall be construed to require the Executive’s cooperation in any internal or
external claims, investigations, proceedings, arbitrations, lawsuits or other legal, internal or business matters in a manner that would
require the Executive to cooperate on issues legally adverse to any then-current employer of the Executive or adverse to the Executive’s
own legal interests.

 8.             
 Independent Contractor Status .

 (a) Independent
Contractor . During the Consulting Period, the Executive is an independent contractor, and the Company shall not have any actual, potential
or other control over the Executive except as otherwise expressly set forth in this Agreement. Except as expressly provided in Section
2(d) of this Agreement, the Executive is not entitled to any benefits provided by the Company to its employees. The Executive shall be
solely responsible for the filing and payment of all taxes imposed on the Executive’s receipt of the Monthly Consulting Fee by any
governmental authority, including but not limited to, unemployment compensation and insurance, social security taxes and worker’s
compensation. The Executive shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including
penalties and interest. The Executive shall not have the right or authority to assume or create any obligation or responsibility whatsoever,
express or implied, on the Company’s behalf or in the Company’s name or to bind the Company in any respect whatsoever, nor
shall the Executive represent that the Executive has such right or authority.

 9.             
 Termination of Consulting Period . Either party shall have the right to terminate the Consulting
Period for any or no reason upon ten (10) days’ prior written notice to the other party.

 10.            
 General Provisions .

 (a) Integration .
This Agreement constitutes the entire understanding of the Company and the Executive with respect to the subject matter hereof and supersedes
all prior understandings, written or oral, including without limitation any employment agreement or arrangement and any other applicable
plan or policy of the Company or its affiliates, except as expressly provided herein. The terms of this Agreement may be changed, modified
or discharged only by an instrument in writing signed by the parties hereto. A failure of the Company or the Executive to insist on strict
compliance with any provision of this Agreement shall not be deemed a waiver of such provision or any other provision hereof. In the event
that any provision of this Agreement is determined to be so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.

 (b) Heirs
and Assigns and Successors . This Agreement is binding on and is for the benefit of the parties hereto and their respective successors,
assigns, heirs, executors, administrators and other legal representatives. Neither this Agreement nor any right or obligation hereunder
may be assigned by the Executive without the prior written consent of the Company. The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company
to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. This Agreement shall apply to, be binding upon and inure to the benefit of any such
successor.

 (c) Choice
of Law . This Agreement shall be construed, enforced and interpreted in accordance with and governed by the laws of the State of Delaware,
without regard to its choice of law provisions.

 (d) Notice .
Any notice or other communication required or permitted under this Agreement shall be effective only if it is in writing and shall be
deemed to be given when delivered personally or via electronic mail, or four (4) days after it is mailed by registered or certified mail,
postage prepaid, return receipt requested, or one (1) day after it is sent by a reputable overnight courier service, and in each case
addressed as follows (or if it is sent through any other method agreed upon by the parties):

 If to the Company:

 Danaher Corporation

 2200 Pennsylvania Ave, NW

 Suite 800W

 Washington, D.C. 20037

 Attention:
 Christopher Korves; Jeffrey Szekeres

 Email:

 With a copy to (which shall
not constitute notice):

 Kirkland & Ellis LLP

 601 Lexington Avenue

 New York, New York 10022

 Attention:

 Daniel Wolf, P.C.

 David M. Klein, P.C.

 Brian H. Junquera

 Email:

 If to the Executive:

 The address on file
with the Company or to such other address as the Executive may designate by notice to the Company.

 With a copy to (which shall
not constitute notice):

 Greenberg Glusker LLP

 2049 Century Park East, Suite 2600

 Los Angeles, CA 90067

 Attention: Benjamin Wiles

 and

 White & Case LLP

 1221 Avenue of the Americas

New York, New York 10020

 Attention:
 Richard Brand

Matthew Barnett

 Email:

 (e) Construction
of Agreement . The parties hereto acknowledge and agree that each party has reviewed and negotiated the terms and provisions of this
Agreement and has had the opportunity to contribute to its revision. Accordingly, the rule of construction to the effect that ambiguities
are resolved against the drafting party shall not be employed in the interpretation of this Agreement. Rather, the terms of this Agreement
shall be construed fairly as to both parties hereto and not in favor or against either party.

 (f) Severability .
The parties hereto intend that the validity and enforceability of any provision of this Agreement shall not affect or render invalid any
other provision of this Agreement. If any provision of this Agreement, or the application of such provision to any person or any circumstance,
is held by a court of competent jurisdiction as illegal, invalid or unenforceable, a suitable and equitable provision to be negotiated
by the parties, each acting reasonably and in good faith, shall be substituted therefor in order to carry out, so far as may be legal,
valid and enforceable, the original intent and purpose of such illegal, invalid or unenforceable provision, and the remainder of this
Agreement and the application of such provision to other persons or circumstances shall not be affected by such illegality, invalidity
or unenforceability.

 (g) Counterparts .
This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which counterpart,
when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but
one and the same Agreement. A copy of this Agreement executed or delivered by electronic means shall be deemed to have the same legal
effect as delivery of an original executed copy of this Agreement.

 (h) No
Admission of Liability . This Agreement does not constitute an admission of liability or wrongdoing of any kind by the Company or its
affiliates or by the Executive.

 11.             
 Exhibit A — Restrictive Covenants . Concurrently with the execution of this Agreement,
the Executive shall execute the Restrictive Covenants set forth in Exhibit A hereto, which are incorporated herein by reference
and made a part of this Agreement.

 IN WITNESS WHEREOF, the Company
has caused this Agreement to be signed by its duly authorized representative and the Executive has signed this Agreement as of the day
and year first above written.

 MASIMO CORPORATION

 By:

 Name:

 Title:

 IN WITNESS WHEREOF, the Company
has caused this Agreement to be signed by its duly authorized representative and the Executive has signed this Agreement as of the day
and year first above written.

 EXECUTIVE

 By:

 Name:

 Date:

 Exhibit A

 (Attached.)