Form SC 13D/A - General Statement of Acquisition of Beneficial Ownership: [Amend]

 

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 56^th Street, 10^th 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.

 

Page 1 of 2

 

 

 

  

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

 

Page 2 of 2

 

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