Finding of Contempt is an Extraordinary and
Severe Remedy
Court Finds Politan’s False Statements
Improperly Influenced ISS and Glass Lewis Recommendations;
Egan-Jones Recommends “FOR” Both of Masimo’s Director Nominees
Following Multiple Corrective Disclosures by Politan
Court States a Reasonable Stockholder Would
Consider Politan’s and Quentin Koffey’s Contempt when Evaluating
Proxy Vote
Masimo Corporation (“Masimo” or the “Company”) (NASDAQ: MASI), a
global leader in noninvasive monitoring technologies and audio
products, today issued a statement following two rulings by the
U.S. District Court for the Central District of California (“the
Court”): one that finds Politan Capital Management LP (“Politan”)
and Quentin Koffey are in contempt of court in connection with
their September 12, 2024 violation of a court order, and another
that finds Politan made false and misleading statements to
stockholders.
At the hearing, the Court stated that a reasonable stockholder
would consider Politan’s and Quentin Koffey’s contempt when
evaluating the arguments of both parties ahead of the upcoming 2024
Annual Meeting.
In its ruling on Masimo’s motion, which has now been made
public, the Court also found that Politan and Quentin Koffey
actively and repeatedly disseminated materially false and
misleading statements to Masimo stockholders. The Court’s ruling
confirms that Quentin Koffey and Politan, who are seeking control
of Masimo, have been dishonest with stockholders.
Additionally, the Court found that Politan’s false statements
improperly influenced the recommendations made to stockholders by
ISS and Glass Lewis.1 Notably, Egan-Jones, the sole proxy advisory
firm to issue its recommendation following access to and review of
post-litigation discovery facts and Politan’s corrections, has
recommended that stockholders vote in favor of only Masimo’s
director nominees – Joe Kiani and Christopher Chavez.
The Court did not issue an injunction because Masimo did not
sufficiently plead economic loss as a result of Politan’s false and
misleading statements and in light of Politan’s corrective
disclosures made in response to the litigation.
Politan’s and Quentin Koffey’s September 12th press release, for
which they have now been held in contempt, falsely implied that the
preliminary injunction was denied because Masimo’s “allegations did
not hold up in court.” This is yet another example of Politan’s
attempts to mislead Masimo stockholders.
The Company stated, “Today’s rulings further validate our view
that Politan and Quentin Koffey are not qualified to lead Masimo.
They do not have a plan for the business or the leadership team,
and lack relevant expertise needed to build on our financial
momentum. And, today, a federal Judge held them in contempt of
court. This underscores a clear lack of integrity and commitment to
operating in an ethical manner. In contrast, Masimo has always
acted with integrity, keeping the best interests of patients and
stockholders at the forefront of our thinking. To that end, Masimo
has made concrete commitments to usher in changes that stockholders
have said they want, including separating our consumer business and
expanding the Board with more independent directors. Change is
happening at Masimo, and we are proving that through our actions,
not just our words.”
The Company urges stockholders to vote “FOR” Masimo’s director
nominees, Joe Kiani and Christopher Chavez, on the updated
GOLD proxy card to protect Masimo’s future and your
investment.
For more information on how to protect the value of your
investment at Masimo, visit www.ProtectMasimosFuture.com.
Your Vote Is Important, Please
Use The Updated GOLD Proxy Card
Today!
If you have questions about how
to vote your shares, please call the firm assisting us with the
solicitation of proxies,
Innisfree M&A
Incorporated
1 (877) 456-3463 (toll-free
from the U.S. and Canada)
or
+1 (412) 232-3651 (from other
locations)
About Masimo
Masimo (NASDAQ: MASI) is a global medical technology company
that develops and produces a wide array of industry-leading
monitoring technologies, including innovative measurements,
sensors, patient monitors, and automation and connectivity
solutions. In addition, Masimo Consumer Audio is home to eight
legendary audio brands, including Bowers & Wilkins, Denon,
Marantz, and Polk Audio. Our mission is to improve life, improve
patient outcomes, and reduce the cost of care. Masimo SET ®
Measure-through Motion and Low Perfusion ™ pulse oximetry,
introduced in 1995, has been shown in over 100 independent and
objective studies to outperform other pulse oximetry technologies.
1 Masimo SET ® has also been shown to help clinicians reduce severe
retinopathy of prematurity in neonates, 2 improve CCHD screening in
newborns 3 and, when used for continuous monitoring with Masimo
Patient SafetyNet ™ in post-surgical wards, reduce rapid response
team activations, ICU transfers, and costs. 4-5 Masimo SET ® is
estimated to be used on more than 200 million patients in leading
hospitals and other healthcare settings around the world, 6 and is
the primary pulse oximetry at all 10 top U.S. hospitals as ranked
in the 2024 Newsweek World’s Best Hospitals listing. 7 In 2005,
Masimo introduced rainbow ® Pulse CO-Oximetry technology, allowing
noninvasive and continuous monitoring of blood constituents that
previously could only be measured invasively, including total
hemoglobin (SpHb ® ), oxygen content (SpOC ™ ), carboxyhemoglobin
(SpCO ® ), methemoglobin (SpMet ® ), Pleth Variability Index (PVi ®
), RPVi ™ (rainbow ® PVi), and Oxygen Reserve Index (ORi ™ ). In
2013, Masimo introduced the Root ® Patient Monitoring and
Connectivity Platform, built from the ground up to be as flexible
and expandable as possible to facilitate the addition of other
Masimo and third-party monitoring technologies; key Masimo
additions include Next Generation SedLine ® Brain Function
Monitoring, O3 ® Regional Oximetry, and ISA ™ Capnography with
NomoLine ® sampling lines. Masimo’s family of continuous and
spot-check monitoring Pulse CO-Oximeters ® includes devices
designed for use in a variety of clinical and non-clinical
scenarios, including tetherless, wearable technology, such as
Radius-7 ® , Radius PPG ® , and Radius VSM ™ , portable devices
like Rad-67 ® , fingertip pulse oximeters like MightySat ® Rx, and
devices available for use both in the hospital and at home, such as
Rad-97 ® and the Masimo W1 ® medical watch. Masimo hospital and
home automation and connectivity solutions are centered around the
Masimo Hospital Automation ™ platform, and include Iris ® Gateway,
iSirona ™ , Patient SafetyNet, Replica ® , Halo ION ® , UniView ® ,
UniView :60 ™ , and Masimo SafetyNet ® . Its growing portfolio of
health and wellness solutions includes Radius Tº ® , Masimo W1
Sport, and Masimo Stork ™ . Additional information about Masimo and
its products may be found at www.masimo.com . Published clinical
studies on Masimo products can be found at
https://professional.masimo.com/evidence/featured-studies/feature/.
References
- Published clinical studies on pulse oximetry and the benefits
of Masimo SET ® can be found on our website at www.masimo.com.
Comparative studies include independent and objective studies which
are comprised of abstracts presented at scientific meetings and
peer-reviewed journal articles.
- Castillo A et al. Prevention of Retinopathy of Prematurity in
Preterm Infants through Changes in Clinical Practice and SpO2
Technology. Acta Paediatr. 2011 Feb;100(2):188-92.
- de-Wahl Granelli A et al. Impact of pulse oximetry screening on
the detection of duct dependent congenital heart disease: a Swedish
prospective screening study in 39,821 newborns. BMJ. 2009;Jan
8;338.
- McGrath S et al. Surveillance Monitoring Management for General
Care Units: Strategy, Design, and Implementation. The Joint
Commission Journal on Quality and Patient Safety. 2016
Jul;42(7):293-302.
- McGrath S et al. Inpatient Respiratory Arrest Associated With
Sedative and Analgesic Medications: Impact of Continuous Monitoring
on Patient Mortality and Severe Morbidity. J Patient Saf. 2021;
17(8):557-561.
- Estimate: Masimo data on file.
- As ranked in the 2024 Newsweek World’s Best Hospitals listing,
available at
https://www.newsweek.com/rankings/worlds-best-hospitals-2024/united-states.
Forward-Looking Statements
This press release includes forward-looking statements as
defined in Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as amended,
in connection with the Private Securities Litigation Reform Act of
1995. These forward-looking statements include, among others,
statements regarding the 2024 Annual Meeting of Stockholders (the
“2024 Annual Meeting”) of Masimo and the potential stockholder
approval of the Board’s nominees; changes to Masimo's governance,
including the composition of Masimo's Board of Directors and
Masimo's plans to expand the Board; and the proposed separation of
Masimo’s consumer business, including any potential joint venture
or any other potential separation of Masimo’s consumer business.
These forward-looking statements are based on current expectations
about future events affecting Masimo and are subject to risks and
uncertainties, all of which are difficult to predict and many of
which are beyond Masimo’s control and could cause its actual
results to differ materially and adversely from those expressed in
its forward-looking statements as a result of various risk factors,
including, but not limited to (i) uncertainties regarding future
actions that may be taken by Politan in furtherance of its
nomination of director candidates for election at the 2024 Annual
Meeting, (ii) the potential cost and management distraction
attendant to Politan’s nomination of director nominees at the 2024
Annual Meeting and (iii) factors discussed in the “Risk Factors”
section of Masimo’s most recent periodic reports filed with the
Securities and Exchange Commission (“SEC”), which may be obtained
for free at the SEC’s website at www.sec.gov. Although Masimo
believes that the expectations reflected in its forward-looking
statements are reasonable, the Company does not know whether its
expectations will prove correct. All forward-looking statements
included in this press release are expressly qualified in their
entirety by the foregoing cautionary statements. You are cautioned
not to place undue reliance on these forward-looking statements,
which speak only as of today’s date. Masimo does not undertake any
obligation to update, amend or clarify these statements or the
“Risk Factors” contained in the Company’s most recent reports filed
with the SEC, whether as a result of new information, future events
or otherwise, except as may be required under the applicable
securities laws.
Additional Information Regarding the 2024 Annual Meeting of
Stockholders and Where to Find It
On August 15, 2024, the Company filed a revised version of its
2024 proxy statement (the “Revised Proxy Statement”) and has mailed
the Revised Proxy Statement to its stockholders of record as of the
new August 12, 2024 record date for the 2024 Annual Meeting. Any
votes submitted by Masimo stockholders in connection with the 2024
Annual Meeting prior to the filing of the Revised Proxy Statement
will not be counted and previous proxies submitted will be
disregarded, and therefore, all stockholders will need to resubmit
their votes, even if they have previously voted. The Company filed
a revised version of the Revised Proxy Statement with the SEC on
August 22, 2024, which amended, superseded and replaced in its
entirety the Revised Proxy Statement (the “Amended Revised Proxy
Statement”). THE COMPANY’S STOCKHOLDERS ARE STRONGLY ENCOURAGED TO
READ THE AMENDED REVISED PROXY STATEMENT (AND ANY AMENDMENTS AND
SUPPLEMENTS THERETO) AND ACCOMPANYING UPDATED GOLD PROXY CARD AS
THEY CONTAIN IMPORTANT INFORMATION. Stockholders may obtain the
Amended Revised Proxy Statement and any amendments or supplements
thereto and other documents as and when filed by the Company with
the SEC without charge from the SEC’s website at www.sec.gov.
Certain Information Regarding Participants
The Company, its directors and certain of its executive officers
and employees may be deemed to be participants in connection with
the solicitation of proxies from the Company’s stockholders in
connection with the matters to be considered at the 2024 Annual
Meeting. Information regarding the direct and indirect interests,
by security holdings or otherwise, of the Company’s directors and
executive officers in the Company is included in the Amended
Revised Proxy Statement, which can be found through the SEC’s
website at
https://www.sec.gov/ix?doc=/Archives/edgar/data/937556/000121390024071554/ea0206756-07.htm,
and any changes thereto may be found in any amendments or
supplements to the Amended Revised Proxy Statement and other
documents as and when filed by the Company with the SEC, which can
be found through the SEC’s website at www.sec.gov.
________________________ [1] Order on Motion for Preliminary
Injunction, Masimo Corp. v Politan Cap. Mgmt. LP, et al., Case No.
24-cv-1568, (C.D. Cal. July 15, 2024) (September 11, 2024) at
43.
View source
version on businesswire.com: https://www.businesswire.com/news/home/20240913518140/en/
Investor Contact: Eli Kammerman (949) 297-7077
ekammerman@masimo.com Media Contact: Evan Lamb (949)
396-3376 elamb@masimo.com
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