Masimo Responds to Politan Capital’s Nomination of Director Candidates and Refutes Politan’s False Claims

Masimo (NASDAQ: MASI) today confirmed that Politan Capital Management LP (“Politan”) has provided notice of its intent to nominate two candidates to stand for election to the Masimo Board of Directors at the company’s 2024 Annual Meeting.

While Masimo respects and values the input and ideas of all its stockholders and respects their right to nominate and elect the directors of their choice, the Company believes that Politan’s efforts to take control of the Board and unseat the Company’s Chairman and CEO, Joe Kiani, run counter to stockholders’ best interests, as well as those of the hundreds of millions of patients who rely on Masimo’s innovations.

When Politan’s Managing Partner, Quentin Koffey, and its nominee, Michelle Brennan, were elected to the Board last year, Mr. Koffey claimed to be seeking a minority voice on the Board from which to offer input and direction. Yet Mr. Koffey has always been intent on taking control. While Mr. Koffey continues to suggest he desires an “independent” board, it appears from his continued attacks and misleading claims, including in Politan’s recent press release, that what he really seeks is a Board that agrees with him. Until it does, he will continue to claim the Board is not independent, despite the fact that two-thirds of the Board members are independent directors appointed in the last nine months. Masimo stockholders and the hundreds of millions of people who depend on Masimo innovation cannot afford the destructive and chaotic path that Mr. Koffey continues to pursue, even as the Company endeavors to separate its consumer business.

The facts undermine Mr. Koffey’s arguments and expose his willingness to mislead stockholders in pursuit of control of Masimo. Stockholders have a right to know the truth as outlined below:

Politan Claim: “…repeatedly held Board meetings excluding us…”

Reality: Mr. Koffey and Ms. Brennan have been invited to and attended all 11 Board meetings held since they joined the Board, along with all respective committee meetings. Mr. Koffey also attends Nominating, Compliance and Corporate Governance Committee meetings as an invited guest.

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Politan Claim: “…Chairman & CEO Joe Kiani refused to give us basic information…”

Reality: Quentin Koffey and Michelle Brennan have received thousands of pages of documents, including historical Board books and minutes and a substantial number of additional documents and analyses provided at Mr. Koffey’s request. A list of some of the documents and information Mr. Koffey has been provided is attached as Exhibit A.

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Politan Claim: “…denied access to management…”

Reality: Mr. Koffey has had numerous discussions with Masimo’s CEO and CFO both inside and outside of Board meetings and has met with nearly every member of senior management. A list of the members of senior management Mr. Koffey has had discussions with is attached as Exhibit B. In addition, as part of their on-boarding, Mr. Koffey and Ms. Brennan spent a day at Masimo with Mr. Kiani and others where they discussed the Company’s history, technology, and vision for the future. They received an extensive tour of the Company’s Discovery Lab and Home Health Lab.

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Politan Claim: “…the Board has been provided zero details [on the proposed separation]…”

Reality: The full Board has been engaged in discussions regarding a potential separation of the consumer business since Mr. Kiani originally proposed it in January following a stockholder tour―a review that Politan is now trying to take credit for. Despite being on the Board since June 2023, Mr. Koffey did not propose a separation of the consumer business until Mr. Kiani discussed it with him in January. Further, Mr. Koffey was appointed as Chair of a Special Committee formed to explore certain issues of the separation. He has discussed the structure of the separation with Board members and advisors to the Board on numerous occasions and provided input.

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Politan Claim: “…no independent director knows basic facts such as what COGS, SG&A or R&D dollars are actually spent on.”

Reality: Mr. Koffey is a member of the Audit Committee with full access to the CFO, CAO and internal and external auditors, which allows him to review the detailed financials and ask questions regarding spending. Further, all Board members have been provided detailed financial and operational information related to Masimo’s consumer and healthcare businesses. Mr. Koffey has been provided with a significant amount of information relevant to these topics and has had numerous discussions with Masimo’s management team and the Board’s advisors on these subjects. For Mr. Koffey to admit to not knowing basic facts about the Company is concerning.

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Politan Claim: “There is no budget approval process by the Board, thereby allowing the Chairman & CEO to spend however much he wants on whatever he wants without Board review, authorization or even knowledge.”

Reality: The Board reviews and discusses the Company’s annual operating plan and guidance, and the Compensation Committee approves financial targets in connection with executive compensation.

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Politan Claim: “This is why it is clearer than ever that a majority of truly independent directors are needed at Masimo…”

Reality: In the past nine months, Masimo has seated four new independent directors ―including two nominated by Politan―constituting two-thirds of the Board, ensuring continued independent oversight and fresh perspectives. The two newest independent directors, Bob Chapek and Rolf Classon, had no pre-existing relationship with Mr. Kiani or Masimo and were appointed as part of a rigorous nomination process.

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Politan Claim: “We have serious concerns that Mr. Kiani, without proper oversight, will seek to push through a spin-off with poor corporate governance and IP arrangements where assets are allocated in such a manner designed to maintain his control and influence of both separated companies.”

Reality: Mr. Kiani is committed to pursuing a separation that would result in two separate companies (consumer and healthcare) having the best chance at future success. The proposed separation would result in a full deconsolidation of the financial statements for the two businesses. The Board, including with significant input from Mr. Koffey, is fully involved in evaluating the separation and will ultimately be responsible for approving it.

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Politan Claim: “A rushed Friday afternoon announcement that the Company was exploring the Separation – which came after being informed that Politan intended to nominate directors this week – only further confirms our concerns.”

Reality: It is Politan that rushed the announcement of its nominations on the morning of Monday, March 25, in an effort to take credit for the positive market reaction following the separation announcement on Friday, March 22. Unfortunately, Politan’s press release and related Wall Street Journal article dampened the positive stock reaction that was already apparent in after-hours trading following Friday’s announcement.

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The Masimo Board and its Nominating, Compliance and Corporate Governance Committee will review Politan’s proposed nominees and present the Board’s recommendations in Masimo’s definitive proxy materials, which will be filed with the U.S. Securities and Exchange Commission and mailed to all Masimo stockholders eligible to vote at the 2024 Annual Meeting. The Company will announce details regarding the 2024 Annual Meeting in due course.

Masimo stockholders are not required to take action at this time.

Forward-Looking Statements - Masimo

This communication 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 potential separation of our consumer business, the evaluation of Politan’s nominees and the recommendations of the Board and its Nominating, Compliance and Corporate Governance Committee, as well as other matters related to the 2024 Annual Meeting. 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 (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 of Stockholders, (ii) the potential cost and management distraction attendant to Politan’s nomination of director nominees at the 2024 Annual Meeting of Stockholders and (iii) 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 communication 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.

Additional Information Regarding the 2024 Annual Meeting of Stockholders and Where to Find It

The Company intends to file a proxy statement and GOLD proxy card with the U.S. Securities and Exchange Commission (the “SEC”) in connection with its solicitation of proxies for its 2024 Annual Meeting. THE COMPANY’S STOCKHOLDERS ARE STRONGLY ENCOURAGED TO READ THE DEFINITIVE PROXY STATEMENT (AND ANY AMENDMENTS AND SUPPLEMENTS THERETO) AND ACCOMPANYING GOLD PROXY CARD WHEN THEY BECOME AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION. Stockholders may obtain the proxy statement, any amendments or supplements to the proxy statement 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 ownership of the Company’s directors and executive officers in the Company common shares is included in their SEC filings on Forms 3, 4, and 5, which can be found through the SEC’s website at www.sec.gov. Information can also be found in the Company’s other SEC filings. More detailed and updated information regarding the identity of these potential participants, and their direct or indirect interests of the Company, by security holdings or otherwise, will be set forth in the proxy statement and other materials to be filed with the SEC. These documents can be obtained free of charge from the sources indicated above.

Exhibit A: Documents and Information Provided to Mr. Koffey

February 2021 Board Book

April 2021 Board Book

July 2021 Board Book

October 2021 Board Book

February 2022 Board Book

March 2022 Board Book

April 2022 Board Book

August 2022 Board Book

November 2022 Board Book

February 2023 Board Book

March 2023 Board Book

May 2023 Board Book

August 2023 Board Book

October 2023 Board Book

February 2024 Board Book

10/21/2021 Board and Committee Minutes

10/21/2022 Board Minutes

10/25/2021 Committee Minutes

10/4/2023 Committee Minutes

10/7/2022 Board Minutes

11/1/2022 Board and Committee Minutes

1/13/2023 Board Minutes

1/14/2022 Board Minutes

11/7/2022 Committee Minutes

12/21/2022 Board Minutes

1/24/2023 Board Minutes

1/31/2023 Board Minutes

2/10/2021 Committee Minutes

2/10/2022 Board and Committee Minutes

2/13/2022 Board Minutes

2/14/2022 Committee Minutes

2/15/2022 Board Minutes

2/18/2021 Board and Committee Minutes

2/18/2022 Committee Minutes

2/20/2023 Board and Committee Minutes

2/22/2021 Committee Minutes

2/27/2023 Committee Minutes

2/3/2023 Board Minutes

2/4/2023 Board Minutes

2/5/2023 Board Minutes

2/7/2022 Board Minutes

2/7/2023 Board Minutes

3/19/2023 Board Minutes

3/22/2023 Board and Committees Minutes

3/30/2022 Board and Committees Minutes

4/1/2021 Board and Committees Minutes

4/22/2021 Board and Committee Minutes

4/25/2021 Committee Minutes

4/26/2022 Board Minutes

5/2/2022 Committee Minutes

5/2/2023 Board Minutes

6/14/2023 Board Minutes

6/24/2023 Board Minutes

7/22/2021 Board Committee Minutes

7/26/2021 Committee Minutes

8/16/2022 Board Minutes

8/4/2022 Board Minutes

8/4/2023 Committee Minutes

8/5/2022 Committee Minutes

9/16/2022 Board Minutes

9/21/2022 Board Minutes

9/2/2022 Board Minutes

9/5/2022 Board Minutes

9/7/2022 Board Minutes

Q1 2021 Financial Update

Q1 2022 Financial Update

Q1 2023 Financial Update

Q2 2021 Financial Update

Q2 2022 Financial Update

Q3 2021 Financial Update

Q3 2022 Financial Update

Q3 2023 Financial Update

Q4 2021 Financial Update

Q4 2022 Financial Update

Q2 2023 Financial Update

Q3 2023 Financial Update

Q4 2023 Financial Update

2023 and Quarterly Revenue Guidance by Clinical Platform

2023 Board Calendar

2024 Board Calendar

Board Committee List

2023 Board Contact Information

2022-2023 Board Consulting/Advisory Agreements

Masimo Healthcare Org Chart

Masimo Consumer Org Chart

2021 Full Year Forecast by Platform

Engagement Letter 4/24/2023

Global Purchase Approval Matrix

Engagement Letter 2/10/2023

Engagement Status Report 6/21/2023

Project [ ] Summary

Project [ ] Financial Model

Q2 & FY 2023 Revenue 7/13/2023

Project [ ] Analysis

Q3 2023 UBS CA Hospital Takeaways

Q3 2023 Earnings Call Script

Q3 2023 Earnings

2023 Revenue Guidance by Clinical Platform

Wells Fargo Healthcare Conference Presentation - 9/8/2023

2023 [ ] Financial Projections

[ ] Financial Overview - 10/2023

Amended and Restated Certificate of Incorporation - 6/26/07

Certificate of Amendment to Certificate of Incorporation - 6/28/2023

Amended and Restated Bylaws

Audit Committee Charter

Compensation Committee Charter

Nominating, Compliance, and Corporate Governance Committee Charter

Stock Incentive Plan

Equity Incentive Plan

Executive Bonus Incentive Plan

Amended and Restated Non-Employee Director Compensation Policy

Amended and Restated Severance Protection Plan & Summary Plan Description

Equity Grant Policy

Clawback Policy

Non-Executive Annual Cash Bonus Award Plan

Policy Regarding Gross-Up Provisions

Code of Business Conduct and Ethics

Corporate Governance Guidelines

Director Nominees Consideration Policy

Executive Officer Stock Ownership Policy

Non-Employee Director Stock Ownership Policy

Open Door Policy for Reporting, Accounting, Audit, & Other Compliance Concerns

Policy Regarding Security Holder Recommendation of Director Nominees

Related Person Transactions Policy

Cash Investment Policy

Corporate Disclosure Policy

Insider Trading Policy

Process for Security Holder Communications with the Board of Directors

Q2 2023 Financial Update

Amended Complaint

Q2 and FY Revenue

Engagement Letter - 2/10/23

Compliance & Cybersecurity Review

Complaint Scorecards

SOX Review

Procedures for closing books each quarter

Application of accounting policies

Overview of finance group policies including cash investment policy

Detailed walk through of financial statements

Legal overview

Regulatory and quality overview

Compliance policies

Specific items requiring detail for 2023

Sensor discounts

Debt covenants

Inventory valuation

Impairment analysis

Apple Litigation expenses

Consumer expenses

Malaysia manufacturing transition

Masimo Foundation Grants

Cercacor Royalty

Exhibit B: Senior Managers Mr. Koffey Has Had Discussions With

Chief Executive Officer (Joe Kiani)

Chief Operating Officer (Bilal Muhsin)

Chief Operating Officer, Consumer (Blair Tripodi)

Chief Financial Officer (Micah Young)

General Counsel (Tom McClenahan)

Chief Accounting Officer (Paul Hataishi)

VP, Internal Audit

Senior Director, Compliance

Senior Director, Privacy/Data Protection Counsel

 

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The Masimo Stock at the time of publication of the news with a raise of +1,99 % to 136,1USD on Tradegate stock exchange (28. März 2024, 22:26 Uhr).