masi-202303220000937556false00009375562023-03-222023-03-22
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________________________
FORM 8-K
________________________________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 22, 2023
MASIMO CORPORATION
(Exact name of registrant as specified in its charter)
________________________________________________
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| DE | | 001-33642 | | 33-0368882 |
(State or other jurisdiction
of incorporation) | | (Commission
File Number) | | (IRS Employer
Identification No.) |
| 52 Discovery | | Irvine, | | CA | | | | | 92618 |
| (Address of Principal Executive Offices) | | | | | (Zip Code) |
| | | | | | (949) | 297-7000 | | | |
Registrant’s telephone number, including area code: |
Not Applicable |
(Former name or former address, if changed since last report) |
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: |
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☒ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2 (b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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| Securities Registered pursuant to Section 12(b) of the Act: |
| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Common Stock, $0.001 par value | | MASI | | The Nasdaq Stock Market LLC |
| | | | | |
| Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). |
| Emerging growth company | ☐ |
| If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. | ☐ |
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| Item 1.01. | Entry into Material Definitive Agreement. |
The information set forth in Item 3.03 of this Current Report on Form 8-K related to the Rights Agreement Amendment (as defined therein) is incorporated herein by reference.
The information set forth in Item 7.01 of this Current Report on Form 8-K related to the Waiver (as defined therein) is incorporated herein by reference. The description of the Waiver set forth in Item 7.01 of this Current Report on Form 8-K does not purport to be complete and is qualified in its entirety by reference to the full text of the Waiver, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
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| Item 1.02. | Termination of a Material Definitive Agreement. |
The information set forth in Item 3.03 of this Current Report on Form 8-K related to the Rights Agreement Amendment is incorporated herein by reference.
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| Item 3.03. | Material Modification to Rights of Security Holders. |
On March 22, 2023, Masimo Corporation (the “Company”) and Broadridge Corporate Issuer Solutions, Inc., as rights agent (the “Rights Agent”), entered into an amendment (the “Rights Agreement Amendment”) to the Rights Agreement dated as of September 9, 2022 (the “Rights Agreement”), by and between the Company and the Rights Agent. The Rights Agreement Amendment accelerated the expiration of the Company’s preferred stock purchase rights (the “Rights”) under the Rights Agreement to 5:00 P.M., New York time, on March 22, 2023, and the Rights Agreement terminated at such time. At the time of the termination of the Rights Agreement, all Rights distributed to holders of the Company’s common stock pursuant to the Rights Agreement expired.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the full text of the Rights Agreement Amendment, which is filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
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| Item 7.01. | Regulation FD Disclosure. |
Board Approval for De-Classification Proposal
On March 22, 2023, the Company’s board of directors (the “Board”) approved, subject to the prior approval of the Company’s stockholders, an amendment to the Company’s Amended and Restated Certificate of Incorporation, pursuant to which the Company will phase-in the declassification of the Board over four years, whereby all members of the Board that are elected after the Company’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting) will be elected for annual terms.
Board Determination to Add Two New Directors
On March 23, 2023, the Company announced that the Board intends to expand its size from five to seven members and that the Nominating, Compliance and Corporate Governance Committee of the Board has initiated a search process for two new, highly qualified and complementary directors to add to the existing five-member Board.
Board Appointment of H Michael Cohen as Lead Independent Director; Waiver
On March 22, 2023, the independent members of the Board unanimously resolved to appoint existing director H Michael Cohen as the Lead Independent Director of the Board, to serve in such position until the Company’s 2024 Annual Meeting of Stockholders, or until his successor is duly elected and qualified, or until his earlier death, resignation or removal from the Board. Mr. Kiani, the Company’s Chairman and Chief Executive Officer, irrevocably and permanently waived his rights (the “Waiver”), pursuant to Mr. Kiani’s Amended and Restated Employment Agreement with the Company, dated as of November 4, 2015, as amended (the “Employment Agreement”), to: (i) treat the appointment of any Lead Independent Director of the Board as “Good Reason” under the Employment Agreement, and (ii) terminate (or deliver any termination notice) or make any claim under the Employment Agreement as a result of the appointment of any Lead Independent Director of the Board.
Additional Waiver
In addition, effective February 8, 2023, Mr. Kiani agreed that the valid election to the Board at the 2023 Annual Meeting of any two individuals nominated by the Company stockholders in lieu of two of the Company’s current Board members will not be deemed to constitute a “Change in Control” for purposes of Section 9(iii) of the Employment Agreement.
Press Release
On March 23, 2023, the Company issued a press release announcing the governance changes described in Item 7.01 of this Current Report on Form 8-K. A copy of the press release is attached as Exhibit 99.1 and is incorporated herein by reference.
In accordance with General Instructions B.2 of Form 8-K, the information in Item 7.01 of this Current Report on Form 8-K (including Exhibit 99.1 hereto), except as expressly incorporated by reference in Item 1.01 of this Current Report on Form 8-K, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities under that section, and shall not be deemed to be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
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| Item 9.01. | Financial Statements and Exhibits. |
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Exhibit No. | Description |
| 4.01 | |
| 10.1 | |
| 99.1 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Masimo Corporation has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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| | | | MASIMO CORPORATION |
| | | | | |
Date: March 23, 2023 | | | | By: | | /s/ MICAH YOUNG |
| | | | | | Micah Young |
| | | | | | Executive Vice President & Chief Financial Officer |
| | | | | | (Principal Financial Officer) |
LIMITED WAIVER
Reference is hereby made to that certain Amended and Restated Employment Agreement, dated as of November 4, 2015, as amended by the First Amendment thereto dated July 27, 2017 and the Second Amendment thereto dated January 14, 2022 (such agreement, as amended, the “Employment Agreement”), by and between Masimo Corporation, a Delaware corporation (the “Company”), and Joe Kiani (the “Executive”). Capitalized terms used but not defined in this limited waiver (this “Waiver”) shall have the meanings set forth in the Employment Agreement.
RECITALS
A. Section 7.4 of the Employment Agreement provides, among other things, that the designation of any director other than the Executive as the lead director of the board of directors of the Company (the “Board”) constitutes “Good Reason” under the Employment Agreement; and
B. Executive has agreed to irrevocably and permanently waive Executive’s right to treat the Board’s appointment of any lead independent director of the Board as “Good Reason” under the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and in order to facilitate the foregoing, the Executive hereby agrees as follows:
1.WAIVER. The Executive hereby unconditionally and irrevocably permanently waives any and all rights of the Executive to assert that the appointment of any lead independent director of the Board constitutes “Good Reason” under the Employment Agreement and further hereby unconditionally and irrevocably permanently waives the right to terminate, deliver any Notice of Termination or make any claim as a result of the appointment of any lead independent director of the Board.
2.SCOPE OF WAIVER. Other than as set forth in this Waiver, no terms or conditions of the Employment Agreement shall be waived, amended or modified by this Waiver. For the avoidance of doubt, this Waiver shall not constitute a waiver by the Executive of any other provisions of the Employment Agreement or a waiver in relation to any future changes in the composition of the Board that may be effected by the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned hereby executes this Waiver as of the date first set forth above.
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| “Executive” |
/s/ JOE KIANI | | | |
| JOE KIANI | | | |
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AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement, dated as of March 22, 2023 (this “Amendment No. 1”), is made between Masimo Corporation, a Delaware corporation (the “Company”), and Broadridge Corporate Issuer Solutions, LLC, a Pennsylvania limited liability company (as successor-in-interest to Broadridge Corporate Issuer Solutions, Inc. the “Rights Agent”).
RECITALS
A. The Company and the Rights Agent are parties to the Rights Agreement, dated as of September 9, 2022 (the “Rights Agreement”). All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Rights Agreement.
B. The Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company to amend the Rights Agreement as set forth in this Amendment No. 1.
C. Pursuant to Section 27 of the Rights Agreement, the Company, by action of the Board, may from time to time and in its sole and absolute discretion, and the Rights Agent shall if the Company so directs, supplement or amend any provision of the Rights Agreement in any respect without the approval of any registered holders of the Rights, subject to specified limitations.
D. Pursuant to Section 27 of the Rights Agreement, upon the delivery of a certificate from an appropriate officer of the Company (the “Officer’s Certificate”) that states that the proposed amendment is in compliance with the terms of Section 27, an authorized signatory of the Rights Agent shall execute this Amendment No. 1.
NOW, THEREFORE, in consideration of the background, agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Amendment of Rights Agreement.
(a) Subclause (i) of the first sentence of Section 7(a) of the Rights Agreement is hereby amended and restated to read in its entirety as follows:
“(i) the Close of Business on March 22, 2023 (the “Final Expiration Date”),”
(b) The exhibits to the Rights Agreement shall be deemed to be restated to reflect this Amendment No. 1, including all necessary conforming changes.
Section 2. Direction. By its execution and delivery hereof, the Company directs the Rights Agent to execute this Amendment No.1.
Section 3. Defined Terms. Unless otherwise defined in this Amendment No. 1, capitalized terms used in this Amendment No. 1 have the respective meanings given to them in the Rights Agreement.
Section 4. No Other Modification. Other than as set forth in this Amendment No. 1, the terms and conditions of the Rights Agreement remain in full force and effect without modification thereto. Effective as of the Final Expiration Date, the Rights Agent shall have no liability or obligation to the Company or any holder of Rights under the Rights Agreement.
Section 5. Counterparts. This Amendment No. 1 may be executed in any number of counterparts. Each counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Section 6. Governing Law. This Amendment No. 1 shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and to be performed entirely within such State.
Section 7. Descriptive Headings. Descriptive headings of the several sections of this Amendment No. 1 are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Amendment No. 1.
[Signatures follow on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed and delivered as of the day and year first above written.
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| | MASIMO CORPORATION |
| | | | |
| | By: | /s/ TOM MCCLENAHAN |
| | Name: | Tom McClenahan | |
| | Title: | Executive Vice President, General Counsel & Corporate Secretary |
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| | BROADRDIGE CORPORATE ISSUER SOLUTIONS, INC. |
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| | By: | /s/ JOHN P. DUNN | |
| | Name: | John P. Dunn | |
| | Title: | SVP, Sales | |
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[Signature Page to Amendment No. 1 to Rights Agreement]
Masimo Announces Changes to Governance Structure and Practices
H Michael Cohen Selected as Lead Independent Director
Two Additional New Directors to Be Named to Board Following Consultation with Stockholders
Significant Governance Changes Announced,
Including Termination of Rights Agreement and Plan to Declassify Board
Irvine, California – March 23, 2023 – Masimo Corporation (Nasdaq: MASI) today announced changes to its Board of Directors and governance policies, the result of an ongoing board refreshment and governance review process informed by regular engagement with stockholders.
“We recently visited several of our large stockholders and had good discussions with them,” said Joe Kiani, Masimo’s founder, Chairman, and CEO. “Based on their feedback, as well as feedback we previously received from other stockholders, the Board has decided to make a number of changes.”
The Independent Directors of Masimo’s Board have unanimously elected H Michael Cohen as its Lead Independent Director. In this role, Mr. Cohen will be responsible for leading meetings of the Independent Directors, presiding at meetings of the Board at which the Chairman is not present and providing input on Board agendas and materials in advance of Board meetings.
“We are pleased to announce these changes to our Board’s structure and policies, which are informed by feedback from our stockholders,” said Mr. Cohen. “The Board is confident that the changes we are announcing today will position it to continue to provide effective oversight as we seek to maximize value for all stockholders. Over the past twelve months, our Independent Directors have met with holders of more than 50% percent of Masimo’s stock as part of our investor engagement program. As our actions demonstrate, we are committed to collaborating productively with all Masimo’s stockholders in support of long-term value creation.”
In response to specific and broad-based stockholder feedback, the Board has also decided to expand its size from five to seven members. With the support of an external advisory firm, the Board’s Nominating, Compliance and Corporate Governance Committee has initiated a search process for two new, highly qualified and complementary independent directors. This process reflects the Board’s commitment to regular refreshment with highly qualified, experienced directors and responsiveness to input from stockholders. In connection with this process, the Board will continue to solicit feedback from the Company’s stockholders regarding specific individuals as well as qualities and experience that would be beneficial for the Board.
In addition, the Board has resolved to put forward, and recommend that stockholders vote in favor of, a proposal to stockholders for a vote at Masimo’s 2023 Annual Meeting of Stockholders to amend the Company’s Charter to declassify the Board, which will result in one-year terms for all directors. The proposal to declassify the Board will be detailed in Masimo’s 2023 proxy statement, which will be filed with the Securities and Exchange Commission in advance of Masimo’s 2023 Annual Meeting of Stockholders. If approved, the declassification of the Board would begin with the directors up for election at the 2024 Annual Meeting, with the Board becoming fully declassified at the 2026 Annual Meeting.
Masimo’s Board of Directors has also terminated the Rights Agreement it adopted on September 9, 2022, effective as of March 22, 2023. Stockholders are not required to take any action as a result of the termination of the Rights Agreement.
The Board does not currently intend to adopt another rights plan. If such a rights plan were to be adopted as a result of new circumstances arising in the future, the Board would seek stockholder approval of the rights plan within 12 months of its adoption unless it terminated the rights plan prior to such time.
Finally, the Board has made certain changes to its executive compensation program to better align compensation with stockholder returns and in response to last year’s say-on-pay vote at the 2022 Annual Meeting and subsequent stockholder feedback. Specifically, Masimo has moved to multi-year performance goals for its equity-based incentive awards by incorporating three-year cumulative performance metrics rather than annual metrics at the end of a three-year performance period. In addition, the Company has added market-based performance conditions, including a relative Total Shareholder Return (“TSR”) metric that targets the Company’s TSR performance at the 55th percentile ranking relative to the constituents of the Nasdaq Composite Index.
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. Masimo SET® has also been shown to help clinicians reduce severe retinopathy of prematurity in neonates, improve CCHD screening in newborns, and, when used for continuous monitoring with Masimo Patient SafetyNet™ in post-surgical wards, reduce rapid response team activations, ICU transfers, and costs. Masimo SET® is estimated to be used on more than 200 million patients in leading hospitals and other healthcare settings around the world, and is the primary pulse oximetry at 9 of the top 10 hospitals as ranked in the 2022-23 U.S. News and World Report Best Hospitals Honor Roll. 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®. 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 T°® and the Masimo W1™ watch. Additional information about Masimo and its products may be found at www.masimo.com. Published clinical studies on Masimo products can be found at www.masimo.com/evidence/featured-studies/feature.
ORi, RPVi, and Radius VSM have not received FDA 510(k) clearance and are not available for sale in the United States. The use of the trademark Patient SafetyNet is under license from University HealthSystem Consortium.
Forward-Looking Statements
This press release includes forward-looking statements as defined in Section 27A of the Securities Act of 1933 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 Masimo’s planned changes to its Board of Directors and governance policies, including the planned appointment of two new, highly qualified and complementary directors, the anticipated benefits of these changes, Masimo’s plans to present the proposed declassification of the Board at Masimo’s 2023 annual meeting of stockholders (the “2023 Annual Meeting”) and Masimo’s products and technologies. These forward-looking statements are based on current
expectations about future events affecting us and are subject to risks and uncertainties, all of which are difficult to predict and many of which are beyond our control and could cause our actual results to differ materially and adversely from those expressed in our forward-looking statements as a result of various risk factors, including, but not limited to; risks related to our assumptions regarding the repeatability of clinical results; risks related to our belief that Masimo’s unique noninvasive measurement technologies, including Masimo SpHb and rainbow®, contribute to positive clinical outcomes and patient safety; risks related to our belief that Masimo noninvasive medical breakthroughs provide cost-effective solutions and unique advantages; risks related to COVID-19; as well as other factors discussed in the “Risk Factors” section of our most recent 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 we believe that the expectations reflected in our forward-looking statements are reasonable, we do not know whether our 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. We do not undertake any obligation to update, amend or clarify these statements or the “Risk Factors” contained in our 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.
Important Additional Information and Where to Find It:
The Company, its directors and certain of its executive officers and employees may be deemed to be participants in the solicitation of proxies from stockholders in connection with the 2023 Annual Meeting. The Company plans to file a proxy statement with the U.S. Securities and Exchange Commission (the “SEC”) in connection with the solicitation of proxies for the 2023 Annual Meeting (the “2023 Proxy Statement”), together with a proxy card. STOCKHOLDERS ARE URGED TO READ THE 2023 Proxy Statement (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS THAT THE COMPANY WILL FILE WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Additional information regarding the identity of these potential participants, none of whom owns in excess of one percent (1%) of the Company’s outstanding shares of common stock, and their direct or indirect interests, by security holdings or otherwise, will be set forth in the 2023 Proxy Statement and other materials to be filed with the SEC in connection with the 2023 Annual Meeting. Information relating to the foregoing can also be found in the Company’s definitive proxy statement for its 2022 annual meeting of stockholders (the “2022 Proxy Statement”), filed with the SEC on April 5, 2022. To the extent holdings of the Company’s securities by such potential participants (or the identity of such participants) have changed since the information printed in the 2022 Proxy Statement, such information has been or will be reflected on Statements of Change in Ownership on Forms 3 and 4 filed with the SEC.
Stockholders will be able to obtain, free of charge, copies of the 2023 Proxy Statement, any amendments or supplements thereto and any other documents (including the proxy card) when filed by the Company with the SEC in connection with the 2023 Annual Meeting at the SEC’s website (http://www.sec.gov) or at the Company’s website (https://www.masimo.com/).
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