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. 11)*
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 12, 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. 11 to Schedule
13D (this “Amendment No. 11”) amends and supplements the Schedule 13D filed on August 16, 2022 (as amended and supplemented
through the date of this Amendment No. 11, 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. 11 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 12, 2024, Politan,
a Reporting Person, sent a letter to the Board, regarding empty voting. As discussed in the Issuer Proxy Statement, stockholders of record
of the Issuer may revoke their proxy or change their vote at any time before the final vote tabulation at the annual meeting of the Issuer’s
stockholders. The letter is qualified in its entirety by reference to Exhibit 99.13, 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 |
*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 12, 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 |
*Previously filed.
Exhibit 99.13
106
West 56th Street, 10th Floor
New York, New York 10019
July 12, 2024
Via Email
The Board of Directors
c/o Masimo Corporation
52 Discovery
Irvine, CA 92618
Re: Letter to Board of Directors on behalf of Politan Capital
Management LP
Dear Members of the Board:
Last week I raised serious
concerns about an empty voting scheme we believe is being perpetrated by a friend of Joe Kiani to manipulate the outcome of the upcoming
annual meeting.
This investor, who it has
now come to light is RTW Investments based on Glass Lewis’s report and subsequent media reports, accumulated a 9.9% voting stake
through a trading strategy known as “record date capture” and “empty voting” that involves securing a large voting
position divorced from actual economic exposure.
RTW and Mr. Kiani were the
two earliest major investors to deliver proxies — well before other major holders voted. As Craig Reynolds, Masimo’s Lead
Independent Director and Chair of all three Board committees knows, RTW’s portfolio manager responsible for the Masimo investment
and Mr. Kiani are friends who have dinner together with their spouses and are both members of the Orange County community. This relationship
is underscored by Mr. Kiani being featured on RTW’s website praising the investment firm as a “trusted partner” and
noting that Mr. Kiani is an investor in RTW’s funds. A research firm has also reported on additional connectivity between RTW’s
CIO and Mr. Kiani.
Glass Lewis issued its recommendation
last night, and we are grateful that it decided to recommend that stockholders vote for both Politan nominees. We were also troubled by
the facts that emerged in the recommendation regarding RTW's effort to influence Glass Lewis by claiming they were a 9.9% holder. The
relevant discussion from Glass Lewis follows:
“We do note that on July 1, 2024,
we received an inbound contact from RTW Investments (“RTW”) representing its ownership interest in Masimo as 9.9% and
expressing support for Masimo nominees Chavez and Kiani, opposition to Politan’s nominees and a willingness to engage further
in relation to such views. On July 8, 2024, we responded to RTW by offering engagement windows on July 9 and July 10, 2024. To date,
RTW has not responded to these offers. Per S&P Capital IQ, RTW was the owner of a 2.8% interest in Masimo as of March 31, 2024,
indicating the ownership position communicated in the July 1, 2024, email represented an increase of approximately 3.6x by RTW over
the course of approximately three months.
Page 1 of 2
We are presently unable to ascertain
RTW’s current economic exposure and have no information regarding the presence of any agreements or understandings in relation to
the voting of RTW’s shares. We do, however, acknowledge the specified ownership interest and implied rate of accrual appear to align
with certain of the concerns raised by Politan in the letter filed with the SEC on July 8, 2024. If additional materials corroborating
Politan’s concerns subsequently emerge, whether prior to or following the forthcoming meeting, we would view such circumstances
as a highly inappropriate manipulation of the shareholder franchise and a severe indictment of Masimo's credibility and corporate
governance.”
Unknown to Glass
Lewis, at the time of RTW’s solicitation to them, we believe RTW had already disposed of the vast majority of its position. Indeed,
by July 1, the brokerage firm associated with RTW held less than 2% of Masimo’s shares even though RTW retained its voting power
and had cast its 9.9% proxy for Mr. Kiani, in effect disenfranchising every other stockholder. Describing themselves to Glass Lewis as
a 9.9% owner is yet another instance of manipulation that benefits nobody other than Mr. Kiani.
The Board's refusal
to do the right thing here further underscores the critical need at Masimo for a majority of truly independent directors. Instead of conducting
any real inquiry or taking any action to protect stockholders from what we believe to be blatant manipulation and vote rigging, the Board
has refused to even meet to discuss the matter and has attacked Politan for raising the issue and proposing solutions. To protect the
integrity of the vote, Masimo should demand that RTW abstain from voting any shares that exceed its economic interest — or set a
record date that would allow stockholders to vote promptly in a fair election untainted by empty voting. The company should disclose any
and all contact it has had with RTW. We find the company’s categorical denials of any involvement to be difficult to believe. The
Board should also 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.
In light of the
additional information that has surfaced and the Board’s failure to take any action, we feel it is necessary to make this letter
public so investors understand the status of the situation and our heightened concern.
Thank you,
Quentin Koffey
Managing Member
Page 2 of 2
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