UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. 12)*
Masimo Corporation
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
574795100
(CUSIP Number)
Quentin Koffey
Politan Capital Management LP
106 West 56th Street, 10th
Floor
New York, New York 10019
646-690-2830
With a copy to:
Richard M. Brand
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, NY 10281
212-504-6000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 15, 2024
(Date of Event Which Requires Filing of This
Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e),
13d-1(f) or 13d-1(g), check the following box. ¨
Note:
Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7
for other parties to whom copies are to be sent.
| * | The remainder of this cover page
shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this
cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (“Act”)
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
CUSIP No. 574795100 |
|
Page 2 |
1 |
NAME OF REPORTING PERSON
Politan Capital Management LP |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) x
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
OO (See Item 3) |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
Number of
shares
beneficially
owned by
each
reporting
person
with |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
4,713,518 |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
4,713,518 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,713,518 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%* |
14 |
TYPE OF REPORTING PERSON
IA |
* All percentage calculations set forth herein
are based upon the aggregate of 53,182,247 shares of Common Stock outstanding as of June 13, 2024, as reported in the Issuer’s definitive
proxy statement, filed with the Securities and Exchange Commission (the “SEC”) on June 17, 2024 (the “Issuer
Proxy Statement”).
CUSIP No. 574795100 |
|
Page 3 |
1 |
NAME OF REPORTING PERSON
Politan Capital Management GP LLC |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) x
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
OO (See Item 3) |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
Number of
shares
beneficially
owned by
each
reporting
person
with |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
4,713,518 |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
4,713,518 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,713,518 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%* |
14 |
TYPE OF REPORTING PERSON
IA |
* All percentage calculations set forth herein
are based upon the aggregate of 53,182,247 shares of Common Stock outstanding as of June 13, 2024, as reported in the Issuer Proxy Statement.
CUSIP No. 574795100 |
|
Page 4 |
1 |
NAME OF REPORTING PERSON
Politan Capital Partners GP LLC |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) x
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
OO (See Item 3) |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware |
Number of
shares
beneficially
owned by
each
reporting
person
with |
7 |
SOLE VOTING POWER
0 |
8 |
SHARED VOTING POWER
4,713,518 |
9 |
SOLE DISPOSITIVE POWER
0 |
10 |
SHARED DISPOSITIVE POWER
4,713,518 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,713,518 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%* |
14 |
TYPE OF REPORTING PERSON
IA |
* All percentage calculations set forth herein
are based upon the aggregate of 53,182,247 shares of Common Stock outstanding as of June 13, 2024, as reported in the Issuer Proxy Statement.
CUSIP No. 574795100 |
|
Page 5 |
1 |
NAME OF REPORTING PERSON
Quentin Koffey |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) x
(b) ¨ |
3 |
SEC USE ONLY
|
4 |
SOURCE OF FUNDS
OO (See Item 3) |
5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
United States |
Number of
shares
beneficially
owned by
each
reporting
person
with |
7 |
SOLE VOTING POWER
1,228 |
8 |
SHARED VOTING POWER
4,713,518 |
9 |
SOLE DISPOSITIVE POWER
1,228 |
10 |
SHARED DISPOSITIVE POWER
4,713,518 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,714,746* |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
¨ |
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.9%** |
14 |
TYPE OF REPORTING PERSON
IN |
* Includes Mr. Koffey’s 1,228 restricted
share units granted to him on June 26, 2023 by virtue of his position as a director on the Board and that vest upon the earliest of the
first anniversary of the grant date, the date of the next annual meeting of stockholders, or a change in control of the Issuer.
** Mr. Koffey’s percentage calculations
set forth herein are based upon the aggregate of 53,182,247 shares of Common Stock outstanding as of June 13, 2024, as reported in the
Issuer Proxy Statement.
CUSIP No. 574795100 |
|
Page 6 |
This Amendment No. 12 to Schedule
13D (this “Amendment No. 12”) amends and supplements the Schedule 13D filed on August 16, 2022 (as amended and supplemented
through the date of this Amendment No. 12, collectively, the “Schedule 13D”) by the Reporting Persons, relating to
the common stock, par value $0.001 per share, of Masimo Corporation, a Delaware corporation
(the “Issuer”). Capitalized terms not defined in this Amendment No. 12 shall have the meaning ascribed to them in the
Schedule 13D.
The information set forth
in response to Item 4 below shall be deemed to be a response to all Items where such information is relevant.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Schedule 13D is hereby amended and supplemented with the following information:
On July 15,
2024, Politan, a Reporting Person, sent a letter to the Board. The letter is qualified in its entirety by reference to Exhibit 99.14,
which is attached hereto and is incorporated herein by reference.
ITEM 7. |
MATERIAL TO BE FILED AS AN EXHIBIT |
Exhibit 99.1 |
Joint Filing Agreement among Politan Capital Management LP, Politan Capital Management GP LLC, Politan Capital Partners GP LLC, and Quentin Koffey* |
|
|
Exhibit 99.2 |
Trading Data* |
|
|
Exhibit 99.3 |
Trading Data* |
|
|
Exhibit 99.4 |
Form of Verified Complaint, filed with the Delaware Court of Chancery on October 21, 2022* |
|
|
Exhibit 99.5 |
Form of Second Amended and Supplemented Complaint, filed as an Exhibit to the Motion for Leave to Amend with the Delaware Court of Chancery on March 10, 2023* |
Exhibit 99.6 |
Form of Engagement and Indemnification Agreement entered into by and between Politan Capital Management LP and Michelle Brennan* |
Exhibit 99.7 |
Trading Data* |
Exhibit 99.8 |
Press Release, dated June 26, 2023* |
Exhibit 99.9 |
Form of Engagement and Indemnification Agreement entered into by and between Politan Capital Management LP and each of William Jellison and Darlene Solomon* |
Exhibit 99.10 |
Demand Letter, dated May 8, 2024* |
Exhibit 99.11 |
Politan Letter, dated May 9, 2024* |
Exhibit 99.12 |
Politan Letter, dated July 3, 2024* |
Exhibit 99.13 |
Politan Letter, dated July 12, 2024* |
Exhibit 99.14 |
Politan Letter, dated July 15, 2024 |
*Previously filed.
CUSIP No. 574795100 |
|
Page 7 |
SIGNATURES
After reasonable inquiry and to the best of each
of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Date: July 15, 2024
|
POLITAN CAPITAL MANAGEMENT LP |
|
|
|
By: |
Politan Capital Management GP LLC, |
|
|
its general partner |
|
|
|
|
By: |
/s/ Quentin Koffey |
|
|
Name: |
Quentin Koffey |
|
|
Title: |
Managing Member |
|
|
|
|
|
POLITAN CAPITAL MANAGEMENT GP LLC |
|
|
|
By: |
/s/ Quentin Koffey |
|
|
Name: |
Quentin Koffey |
|
|
Title: |
Managing Member |
|
|
|
|
|
POLITAN CAPITAL PARTNERS GP LLC |
|
|
|
By: |
/s/ Quentin Koffey |
|
|
Name: |
Quentin Koffey |
|
|
Title: |
Managing Member |
|
|
|
|
|
QUENTIN KOFFEY |
|
|
|
By: |
/s/ Quentin Koffey |
|
|
Name: |
Quentin Koffey |
CUSIP No. 574795100 |
|
Page 8 |
INDEX TO EXHIBITS
Exhibit |
Description |
Exhibit 99.1 |
Joint Filing Agreement among Politan Capital Management LP, Politan Capital Management GP LLC, Politan Capital Partners GP LLC, and Quentin Koffey* |
|
|
Exhibit 99.2 |
Trading Data* |
|
|
Exhibit 99.3 |
Trading Data* |
|
|
Exhibit 99.4 |
Form of Verified Complaint, filed with the Delaware Court of Chancery on October 21, 2022* |
|
|
Exhibit 99.5 |
Form of Second Amended and Supplemented Complaint, filed as an Exhibit to the Motion for Leave to Amend with the Delaware Court of Chancery on March 10, 2023* |
|
|
Exhibit 99.6 |
Form of Engagement and Indemnification Agreement entered into by and between Politan Capital Management LP and Michelle Brennan* |
Exhibit 99.7 |
Trading Data* |
Exhibit 99.8 |
Press Release, dated June 26, 2023* |
Exhibit 99.9 |
Form of Engagement and Indemnification Agreement entered into by and between Politan Capital Management LP and each of William Jellison and Darlene Solomon* |
Exhibit 99.10 |
Demand Letter, dated May 8, 2024* |
Exhibit 99.11 |
Politan Letter, dated May 9, 2024* |
Exhibit 99.12 |
Politan Letter, dated July 3, 2024* |
Exhibit 99.13 |
Politan Letter, dated July 12, 2024* |
Exhibit 99.14 |
Politan Letter, dated July 15, 2024 |
*Previously filed.
Exhibit 99.14
106
West 56th Street, 10th Floor
New York, New York 10019
July 15, 2024
Via
Email
The Board of Directors
c/o Masimo
Corporation
52 Discovery
Irvine, CA 92618
| Re: | Resetting the Record Date |
Dear Members of the Board:
We are writing in response to Mr.
Kiani’s accusation that Politan has confused stockholders, and therefore the Masimo Board of Directors is considering
resetting the record date. This accusation is false. Politan has done nothing to mislead stockholders, as was made extremely clear
in the reports from ISS and Glass Lewis that have been published in the last two business days. Clearly, resetting the record date
is motivated by the Company recognizing it needs to address the issue around empty voting. While Politan welcomes this reversal of
the Board’s position, the fact that it was necessary at all is deeply concerning.
This entire issue has served to once again
demonstrate that Mr. Kiani’s approach to corporate governance is limited only by the outer bounds of legality, rather than by
what is in the best interests of Masimo stockholders. The Board should be aware that any attempt to delay the Annual Meeting past
August 5 will be seen as a transparent maneuver in response to Politan receiving full support from both proxy advisory firms.
First, attempting to blame Politan for what has occurred
ignores the facts:
| i) | On July 3, Politan privately made the Board aware of a potential empty voting scheme
perpetrated by a fund with personal ties to Mr. Kiani and asked for a new record date to promptly be set given that the matter was highly
time sensitive. |
| ii) | On July 5, the last day the Board could have reset the record date without moving
the Annual Meeting, Masimo's general counsel informed us privately that the Board would hold a meeting the following week. On July 8,
we filed our letter publicly. The Board then publicly dismissed our concerns. The Board meeting never occurred. |
| iii) | On July 12, proxy advisory firm Glass Lewis issued its recommendation in which
it disclosed troubling engagement it had with RTW Investments and brought to light RTW as the fund behind the empty voting scheme. |
| iv) | That same day (July 12), Politan sent a letter to Masimo's Board noting that Mr.
Kiani and RTW's portfolio manager responsible for the Masimo investment are friends who have dinner together with their spouses and are
both members of the Orange County community, Mr. Kiani is featured on RTW's website praising the investment firm as a 'trusted partner"
and Mr. Kiani is an investor in RTW's funds. The letter noted that all of this was known by Craig Reynolds,
the Lead Independent Director of the Board. We again requested in this letter that empty votes be ignored or a new record date be set.
We also requested that Masimo disclose any and all contact with RTW, hire independent counsel to investigate the matter, determine if
Mr. Kiani and RTW are a group, and pursue disgorgement of any Section 16 short-swing profits. |
No one should
be confused about these events. Rather, under Mr. Kiani, Masimo's Board has a track record of only taking corrective action when its tactics
to disenfranchise stockholders are brought to light and the Company is forced to act under pressure from regulators and judges.
Second, under no scenario should resetting the
record date cause the Annual Meeting to be moved later than August 5. Consider that:
| i) | Politan's advisors believe there is no justification for holding the Annual Meeting
any later than August 5, with a corresponding record date of July 18, based on Broadridge’s established timing requirements for setting a record date and mailing proxy materials. Consistent with market practice, there is no need to conduct a new
broker search since one has already been completed for the same Annual Meeting. An Annual Meeting rescheduled for August 5 comes as close
as possible to compliance with the requirements of Delaware law and Masimo's own bylaws with regard to the obligation to hold an Annual
Meeting of Stockholders at least once every 13 months. |
| ii) | The Annual Meeting has customarily been held in May and was only pushed to July
25 because Mr. Kiani wanted time to pre-announce second quarter results and potentially announce a transaction to separate the Consumer
Business with his preferred JV partner. The Annual Meeting should never have been delayed this late in the first place, and these types
of tactical motivations should not impact the resetting of the date now. |
| iii) | We made numerous proposals to address the empty voting issue that were rejected.
Had the Board instead acted promptly, the need to move the meeting would have been avoided. |
The Annual
Meeting has already been unnecessarily postponed. To protect the best interests of Masimo's employees, customers and stockholders we urge
the Board to conduct a fair meeting without further undue delay.
Sincerely,
Quentin Koffey
Managing Member
Masimo (NASDAQ:MASI)
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