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EXHIBIT 10.12
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
MASIMO CORPORATION
This Fifth Amended and Restated Registration Rights Agreement (the
"Agreement") is made and entered into as of September 14, 1999, by and among
MASIMO CORPORATION, a Delaware corporation (the "Company") and the undersigned
holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series E Preferred Stock and Series F Preferred Stock of the
Company (collectively, the "Purchasers"). This Agreement restates and amends in
full the Registration Rights Agreement dated October 30, 1991 among the Company
and the holders of Series A Preferred Stock of the Company, the First Amended
and Restated Registration Rights Agreement dated May 21, 1992 between the
Company and the holders of Series A Preferred Stock and Series B Preferred Stock
of the Company, the Second Amended and Restated Registration Rights Agreement
dated December 10, 1993 between the Company and the holders of Series A
Preferred Stock and Series B Preferred Stock of the Company, the Third Amended
and Restated Registration Rights Agreement dated January 17, 1995 by and among
the Company and the holders of Series A Preferred Stock, Series B Preferred
Stock and Series C Preferred Stock and the Fourth Amended and Restated
Registration Rights Agreement dated December 3, 1997 by and among the Company
and the holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series E Preferred Stock.
1. Definitions. As used herein:
(a) The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Securities Act"),
and the declaration or ordering of the effectiveness of such registration
statement.
(b) For the purposes hereof the term "Registrable Securities"
means shares of (i) any and all shares of common stock of the Company issued or
issuable upon conversion of the Series A Preferred Stock (the "Series A
Shares"), Series B Preferred Stock (the "Series B Shares"), Series C Preferred
Stock (the "Series C Shares"), Series E Preferred Stock (the "Series E Shares")
or Series F Preferred Stock (the "Series F Shares") of the Company issued as of
this date or at any time hereafter, (ii) shares of stock issued with respect to
or in any exchange for or in replacement of stock included in (i) above which
have not been resold to the public in a registered public offering, or (iii)
shares of stock issued in respect of the stock referred to in (i) and (ii) as a
result of a stock split, stock dividend or the like, which have not been resold
to the public in a registered public offering.
(c) The terms "Holder" or "Holders" mean any person or persons to
whom Registrable Securities were originally issued and who execute this
Agreement or qualifying transferees under Section 11 hereof who hold Registrable
Securities.
(d) The term "Initiating Holders" means (i) any Holder or Holders
of in the aggregate at least 75% of the Registrable Securities, (ii) any Holder
or Holders of at least 75% of the Registrable Securities designated as Series C
Shares (iii) any Holder or Holders of at least 75% of the Registrable Securities
designated as Series E Shares or (iv) any Holder or Holders of at least 75% of
the Registrable Securities designated as Series F Shares.
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(e) The term "SEC" means the Securities and Exchange Commission.
2. Demand Registration.
(a) Request for Registration. In case the Company shall receive
from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to all or a part of the
Registrable Securities, the Company will:
(i) within ten (10) days after the receipt thereof give
written notice of the proposed registration, qualification or compliance to all
other Holders; and
(ii) as soon as practicable, use its diligent best efforts to
effect all such registration, qualifications and compliances (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualifications under the applicable blue sky or other state
securities laws and appropriate compliance with exemptive regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request given within 30 days after receipt of such
written notice from the Company; provided that the Company shall not be
obligated to take any action to effect such registration pursuant to this
Section 2:
(A) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as required by the
Securities Act; or
(B) In the case of a request from Initiating Holders
described in clause (1) of the definition of Initiating Holders, after the
Company has already effected two (2) such registrations pursuant to this
subsection 2(a) and such registrations have been declared or ordered effective;
or
(C) In the case of a request from Initiating Holders
described in clause (ii), (iii) or clause (iv) of the definition of Initiating
Holders, after the Company has already effected one (1) such registration
pursuant to this subsection 2(a) and such registration has been declared or
ordered effective.
Subject to the foregoing clauses (A) through (C), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practical, but in any event within 90 days after receipt
of the request or requests of the Initiating Holders; provided, however, that if
the Company shall furnish to the Holders a certificate signed by the President
of the Company stating that in the good faith Judgment of the Board of Directors
it would be seriously detrimental to the Company and its stockholders for such
registration statement to be filed at the date filing would be required and it
is therefore essential to defer the filing of such registration statement, the
Company shall have an additional period of not more than 60 days after the
expiration of the initial 90 day period within which to file such registration
statement. The Company may not provide such a certificate more than once during
any 12 month period.
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(b) Underwriting. If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 2(a) and the Company shall include such information in the written
notice referred to in subsection 2(a)(i). In such event, if so requested in
writing by the Company, the Initiating Holders shall negotiate with an
underwriter selected by the Company with regard to the underwriting of such
requested registration; provided, however, that if a majority in interest of the
Initiating Holders have not agreed with such underwriter as to the terms and
conditions of such underwriting within 20 days following commencement of such
negotiations, a majority in interest of the Initiating Holders may select an
underwriter of their choice. The right of any Holder to registration pursuant to
Section 2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. The Company
shall (together with all Holders proposing to distribute their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders. Notwithstanding any other
provision of this Section 2, if the underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, the Initiating Holders shall so advise all Holders of
Registrable Securities who have elected to participate in such offering, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among Holders requesting
registration in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by such Holders. If any Holder of Registrable
Securities disapproves of the terms of the underwriting, he may elect to
withdraw therefrom by written notice to the Company, the underwriter and the
Initiating Holders. Any Registrable Securities which are excluded from the
underwriting by reason of the underwriter's marketing limitation or withdrawn
from such underwriting shall be withdrawn from such registration. If the
underwriter has not limited the number of Registrable Securities to be
underwritten, the Company, employees of the Company and other holders of the
Company's Common Stock may include securities for its (or their) own account in
such registration if the underwriter so agrees and if the number of Registrable
Securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
3. Company Registration.
(a) Notice to Holders. If at any time or from time to time, the
Company proposes to register any of its securities, for its own account or the
account of any of its stockholders other than the Holders, other than a
registration relating solely to employee stock option or purchase plans, or a
registration on Form S-4 relating solely to an SEC Rule 145 transaction, or a
registration on any other form (other than Form S-1, S-2 or S-3, or their
successor forms) or any successor to such forms, which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the Company
will:
(i) promptly give to each Holder written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify any securities under applicable blue sky or other state
securities laws); and
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(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 30 days after receipt of such written notice from the
Company, by any Holder or Holders to be included in any such registration,
except as set forth in subsection 3(b) below.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to subsection 3(a)(i). In such event the right of any Holder to
registration pursuant to Section 3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the holders distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 3, if the underwriter
determines that marketing factors require a limitation of the number of shares
to be underwritten, the underwriter may limit the number of Registrable
Securities and other shares of Common Stock of the Company to be included in the
registration and underwriting as well as the number of such shares to be sold by
any selling stockholders. In the event of a cutback by the underwriters of the
number of Registrable Securities to be included in the registration and
underwriting, the Company shall so advise all Holders of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated in proportion to the respective
amounts of Registrable Securities held by each of such Holder as of the date of
the notice pursuant to subsection 3(a) above. If any Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
4. Form S-3. After the Company has qualified as a registrant whose
securities may be sold pursuant to Form S-3, it shall upon the request of any
Holder notify such Holder that it so qualifies. After the Company has qualified
for the use of Form S-3, Holders of Registrable Securities shall have the right
to request an unlimited number of registrations on Form S-3 (such requests shall
be in writing and shall state the number of Registrable Securities to be
disposed of and the intended method of disposition of such shares by such
Holders), subject only to the following:
(a) The Company shall not be required to effect a registration
pursuant to this Section 4 within 90 days of the effective date of any
registration referred to in Sections 2 and 3 above.
(b) The Company shall not be required to effect a registration
pursuant to this Section 4 unless the Holder or Holders requesting registration
propose to dispose of shares of Registrable Securities having an aggregate
disposition price (before deduction of underwriting discounts and expenses of
sale) of at least $500,000.
(c) The Company shall not be required to effect more than one
registration pursuant to this subsection 4 in any 12 month period.
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The Company shall promptly give written notice to all Holders of the
receipt of a request for registration pursuant to this subsection 4 and shall
provide a reasonable opportunity for such Holders to participate in the
registration, provided that if the registration is for an underwritten
offering, the terms of subsection 2(b) shall apply to all participants in such
offering. Subject to the foregoing, the Company will use its best efforts to
effect promptly the registration of all shares of Registrable Securities on Form
S-3 to the extent requested by the Holder or Holders thereof for purposes of
disposition. Any registration pursuant to Section 4 shall not be counted as
registration pursuant to Section 2.
5. Expenses of Registration. All reasonable expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Agreement, including, without limitation, all registration, filing and
qualification fees, printing expenses, reasonable fees and disbursements of
counsel for the Company and expenses of any special audits incidental to or
required by such registration, shall be borne by the Company except as follows:
(a) The Company shall not be required to pay for expenses of any
registration proceeding begun pursuant to Section 2, the request for which has
been subsequently withdrawn by the Initiating Holders, in which such case, such
expenses shall be borne by the Holders requesting such withdrawal; provided,
however, that if such withdrawal is primarily due to a material adverse change
in the condition, business or prospects of the Company from that known to the
Holders at the time of their request, then the Company shall be required to pay
such expenses and the Holders shall retain their rights pursuant to Section 2.
(b) The Company shall not be required to pay fees of legal counsel
of a Holder except for the reasonable fees of a single counsel acting on behalf
of all selling Holders, or to pay underwriters' fees, discounts or commissions
relating to Registrable Securities.
6. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder participating therein advised in writing as to
the initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense, the Company will:
(a) Keep such registration, qualification or compliance pursuant
to Sections 2, 3 or 4 effective for a period of 180 days or until the Holder or
Holders have completed the distribution described in the registration statement
relating thereto, whichever first occurs; and
(b) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by them; and
(c) Notify each Holder of Registrable Securities covered by such
registration statement at any time. when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; and
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(d) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) a copy of an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and (ii) a copy of a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Holder of
Registrable Securities, each of its officers, directors and partners, and each
person controlling such Holder, with respect to which such registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter of the
Registrable Securities held by or issuable to such Holder, against all claims,
losses, expenses, damages and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any preliminary or final prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation or alleged violation by the Company
relating to action or inaction required of the Company in connection with any
rule or regulation promulgated under the Securities Act or any state securities
law applicable to the Company and will reimburse each such Holder, each of its
officers, directors and partners, and each person controlling such Holder, each
such underwriter and each person who controls any such underwriter, for any
reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage or liability arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Company by an instrument duly executed by such Holder or underwriter
specifically for use therein, and provided further that the agreement of the
Company to indemnify any underwriter and any person who controls such
underwriter contained herein with respect to any such preliminary prospectus
shall not inure to the benefit of any underwriter, from whom the person
asserting any such claim, loss, damage, liability or action purchased the stock
which is the subject thereof, if at or prior to the written confirmation of the
sale of such stock, a copy of the prospectus (or the prospectus as amended or
supplemented) was not sent or delivered to such person, excluding the documents
incorporated therein by reference, and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
prospectus (or the prospectus as amended or supplemented).
(b) Each Holder, severally and not jointly, will, if Registrable
Securities held by or issuable to such Holder are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify and hold harmless the Company, each of its directors and officers,
each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company within the meaning
of the Securities Act, and each
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other such Holder, each of its officers, directors and partners and each person
controlling such Holder, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any preliminary or final prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers, partners,
persons or underwriters for any reasonable legal or any other expenses incurred
in connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein, and provided further that the agreement of the
Holder to indemnify any underwriter and any person who controls such underwriter
contained herein with respect to any such preliminary prospectus shall not inure
to the benefit of any underwriter, from whom the person asserting any such
claim, loss, damage, liability or action purchased the stock which is the
subject thereof, if at or prior to the written confirmation of the sale of such
stock, a copy of the prospectus (or the prospectus as amended or supplemented)
was not sent or delivered to such person, excluding the documents incorporated
therein by reference, and the untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the prospectus (or the
prospectus as amended or supplemented); provided, however, that in no event
shall the indemnification provided by any Holder hereunder exceed the gross
proceeds received by such Holder for the sale of such Holder's securities
pursuant to such registration.
(c) Each party entitled to indemnification under this Section 7
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure is materially prejudicial to an
Indemnifying Party's ability to defend such action. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
8. Lock-Up Provision. Upon receipt of a written request by the Company
or by its underwriters, the Holders shall not sell, sell short, grant an option
to buy, or otherwise dispose of shares of the Company's Common Stock or other
securities (except for any such shares included in the registration) for a
period of one hundred eighty (180) days following the effective date of the
registration of the Company's securities; provided, however, that (i) such
Holder shall have no obligation to enter into the agreement described herein
unless the executive officers, directors and holders of five percent (5%) or
more of the outstanding voting securities of the Company and all other Holders
and holders of other registration rights from the Company, if any, enter into
similar agreements, and (ii) nothing herein shall prevent any Holder that is a
partnership or a corporation
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from making a distribution of Registrable Securities to its partners or
stockholders that is otherwise in compliance with applicable securities laws.
The Company may impose stop-transfer instructions with respect to the shares (or
securities) subject to the foregoing restriction until the end of said 180 day
period.
9. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to herein.
10. Rule 144 Reporting. With a view to making available to Holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees at all times after a public market exists for
the Common Stock of the Company to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") ;
(c) So long as a Holder owns any Registrable Securities, to
furnish to such Holder forthwith upon such Holder's reasonable request a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 (at any time after 90 days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as such Holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing such Holder to
sell any such securities without registration.
11. Transfer of Registration Rights. The rights to cause the Company to
register Registrable Securities of a Holder and keep information available,
granted to a Holder by the Company under Sections 2, 3, 4 and 10 may be assigned
by any Holder to a transferee or assignee of at least 50,000 shares (including
shares transferred by any affiliate of a Holder and as adjusted for stock
splits, stock dividends, reorganizations and the like from the date hereof) of
its Registrable Securities not sold to the public or up to three transferees or
assignees of any shares of its Registrable Securities not sold to the public
that are partners, stockholders or affiliates of such Holder, provided, that the
Company is given written notice by the Holder at the time of or within a
reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned, and provided further, that any such
transferee or assignee shall agree in writing to become subject to the
obligations of the transferring Holder hereunder and shall expressly agree not
to transfer such rights other than to a purchaser of at least 50,000 shares
(adjusted as described above) of Registrable Securities not sold to the public.
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12. Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of sixty percent (60%) of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder to include
such securities in any registration filed under Section 2 hereof, unless under
the terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of his
securities will not reduce the amount of the Registrable Securities of the
Holders which is included.
13. Miscellaneous: Restatement and Amendment of October 30, 1991, May
21, 1992 December 10, 1993, January 17, 1995 and December 3, 1997 Registration
Rights Agreements.
(a) Any term of this Agreement may be amended and the observance
of any such term may be waived (either generally or in a particular instance and
either retroactively or prospectively) with the written consent of the Company
and Holders holding at least sixty percent (60%) of the outstanding Registrable
Securities. Any amendment or waiver affected in accordance with this paragraph
shall be binding upon the parties hereto and their successors and assigns.
(b) This Agreement shall be governed in all respects by the laws
of the State of California, without giving effect to its principles regarding
conflicts of law.
(c) This Agreement constitutes the full and entire understanding
and agreement between the parties with respect to the subject hereof. The
Company, Tamalpais Associates, L.P., Fiebusch & Co., Inc., VSI Investors and
Jose A. Nessim and Freda Nessim, Trustees of the Jose A. Nessim and Freda Nessim
Trust, 1971 (the "Series A Holders") acknowledge and agree that this Agreement
restates and amends in full the Registration Rights Agreement dated October 30,
1991 by and among the Company and the Series A Holders. The Company, DSV
Partners and the Series A Holders acknowledge and agree that this Agreement
restates and amends in full the First Amended and Restated Registration Rights
Agreement dated May 21, 1992 by and among the Company, DSV Partners and the
Series A Holders. The Company, DSV Partners, the Series A Holders and Fiebusch &
Co., Inc., VSI Investors and Dr. Jeremy Swan (collectively, the "Series B
Holders") acknowledge and agree that this Agreement restates and amends in full
the Second Amended and Restated Registration Rights Agreement dated December 10,
1993 by and among the Company, DSV Partners, the Series A Holders and the Series
B Holders. The Company, DSV Partners, the Series A Holders, the Series B
Holders, The Vertical Fund and Vertical Partners, Ltd. acknowledge and agree
that this Agreement restates and amends in full the Third Amended and Restated
Registration Rights Agreement dated January 17, 1997 by and among the Company,
DSV Partners, the Series A Holders, the Series B Holders, The Vertical Fund and
Vertical Partners, Ltd. The Company, DSV Partners, the Series A Holders, the
Series B Holders, Chancellor Private Capital Partners III, L.P., Chancellor
Private Capital Offshore Partners II, L.P., Chancellor Private Capital Offshore
Partners I, C.V., Citiventure 96 Partnership, L.P., Invesco Global Health
Sciences Fund (Invesco Funds Group Inc.), The Liberman Family Trust dated
December 13, 1989, Berkeley Investments, Ltd., Daystar Realty, Ltd., Dr. Ernesto
Gangitano, The John F. Vogt Family Trust dated November 7, 1989 and Dennis
Peterson (collectively with The Vertical Fund and Vertical Partners, Ltd., the
"Series C Holders"), WPG-Farber, Weber Present Fund, L.P., WPG-Farber, Weber
Overseas, L.P., WPG-Faber, Present QP Fund, L.P., WPG-Farber, Present Overseas,
L.P., 3GT Investment Partnership, Edward A. Fortino and Dayle Duchossois
Fortino, Craig J. Duchossois, Kimberly Duchossois, The Richard Duchossois
Revocable Trust dated January 18, 1980, Westfield Performance Fund, Westfield
Technology Fund, ABS Employees' Venture Fund, LP, Patrick Seaver, Scott C.
Hornick, Ryan
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Drant, Gordon H. Olson, Stephen C. Jensen, Louis J. Knobbe, Gerard von Hoffman,
William H. Nieman, Richard C. Riggs, Jr., Moore Global Investments, Ltd.,
Remington Investment Strategies, LP, James P. Scopa, Stradling Yocca Carlson &
Rauth Investment Partnership of 1982, Tennyson Private Placement Opportunity
Fund, LLP, Timothy M. Murphy and Irene P. Gallo Murphy, Greenwood Equities, LLC,
Juliet Challenger, Inc., The Henry L. Hillman Trust dated November 18, 1985,
Thomas G. Bigley and C.G. Grefenstette, Trustees Under Agreements of Trust Dated
December 30, 1976 for Children of Juliet Lea Hillman Simonds, Thomas G. Bigley
and C.G. Grefenstette, Trustees Under Agreements of Trust Dated December 30,
1976 for Children of Audrey Hillman Fisher, Thomas G. Bigley and C.G.
Grefenstette, Trustees Under Agreements of Trust Dated December 30, 1976 for
Children of Henry Lea Hillman, Jr., Thomas G. Bigley and C.G. Grefenstette,
Trustees Under Agreements of Trust dated December 30, 1976 for Children of
William Talbott Hillman, Thomas R. Hitchner, and COLIN Corporation
(collectively, the "Series E Holders") acknowledge and agree that this Agreement
restates and amends in full the Fourth Amended and Restated Registration Rights
Agreement dated December 3, 1997 by and among the Company, DSV Partners, the
Series A Holders, Series B Holders, Series C Holders and Series E Holders.
(d) All notices and other communications required or permitted
hereunder shall be in writing and shall be personally delivered, mailed by first
class mail, postage prepaid, or delivered by Federal Express overnight delivery,
addressed to the Holder's address set forth below its representative's signature
or, if to the Company, at the following address:
Masimo Corporation
2852 Kelvin Avenue
Irvine, California 92614
or at such other address as the Company or any Holder shall hereafter furnish in
writing. Notices that are mailed shall be deemed delivered three (3) days after
deposit in the United States mail.
(e) In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(f) This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
(g) Should any litigation or arbitration be commenced by any party
hereto concerning any provision of this Agreement, then the prevailing party in
such litigation or arbitration shall be entitled to, in addition to such other
relief as may be granted, reasonable attorneys' fees, expert witness expenses,
and other costs.
10
<PAGE> 11
IN WITNESS WHEREOF, the parties have executed this Fourth Amended and
Restated Registration Rights Agreement as of the date and year first above
written.
COMPANY:
MASIMO CORPORATION
By: /s/ JOE E. KIANI
--------------------------------------
Joe E. Kiani, President
PURCHASERS:
Address: TAMALPAIS ASSOCIATES, L.P.
c/o Feibusch & Co., Inc. By: Laurel Grove Trust, G.P.
80 E. Sir Francis Blvd, 3D
Larkspur, California 94939
By: /s/ FEIBUSCH
Shares: -------------------------------------
Print Name: Feibusch
200,000 Series A Preferred Its: Trustee
Address: JOSE A. NESSIM AND FREDA NESSIM
TRUST, 1971
9730 Wilshire Blvd., #200
Beverly Hills, California 90212
Shares: By: /s/ JOSE A. NESSIM
-------------------------------------
Jose A. Nessim, Trustee
47,726 Series A Preferred
50,000 Series B Preferred
By: /s/ FREDA NESSIM
-------------------------------------
Freda Nessim, Trustee
Address: FIEBUSCH & CO. INCORPORATED
80 E. Sir Francis Blvd, 3D By: /s/ FEIBUSCH
Larkspur, California 94939 -------------------------------------
Print Name: Feibusch
Its: President
Shares:
398,061 Series A Preferred
110,000 Series B Preferred
11
<PAGE> 12
Address: DSV PARTNERS IV
1920 Main Street, #820 By: DSV MANAGEMENT, LTD.
Irvine, California 92614
Shares: By: /s/ JAMES R. BERGMAN
-------------------------------------
925,000 Series B Preferred Print Name: James R. Bergman
Its: General Partner
Address: DR. JEREMY SWAN
250 No. San Rafael
Pasadena, California 91105 /s/ JEREMY SWAN
----------------------------------------
Shares: 12,500 Series B Preferred Dr. Jeremy Swan
Address: THE VERTICAL FUND
100 New Town Lane, #2 By: THE VERTICAL GROUP, INC.,
East Hampton, New York 11937 general partner
Shares:
By: /s/ JACK LASERSOHN
245,398 Series C Preferred -------------------------------------
Print Name:
-----------------------------
Its:
------------------------------------
Address: VERTICAL PARTNERS LTD.
100 New Town Lane, #2 By: THE VERTICAL GROUP, INC.,
East Hampton, New York 11937 general partner
Shares:
By: /s/ JACK LASERSOHN
61,350 Series C Preferred -------------------------------------
Print Name:
-----------------------------
Its:
------------------------------------
Address: CHANCELLOR PRIVATE CAPITAL
PARTNERS III, LP
c/o INVESCO Private Capital, Inc.
1166 Avenue of the Americas,
27th Floor
New York, New York 10036 By: /s/ HOWARD GOLDSTEIN
-------------------------------------
Shares: Print Name: Howard Goldstein
197,816 Series C Preferred Title: Managing Director
12
<PAGE> 13
Address: CITIVENTURE 96 PARTNERSHIP, L.P.
c/o INVESCO Private Capital, Inc.
1166 Avenue of the Americas,
27th Floor
New York, New York 10036 By: /s/ HOWARD GOLDSTEIN
-------------------------------------
Shares: Print Name: Howard Goldstein
753,836 Series C Preferred Title:
----------------------------------
Address: CHANCELLOR PRIVATE CAPITAL
OFFSHORE PARTNERS II, L.P.
c/o INVESCO Private Capital, Inc.
1166 Avenue of the Americas,
27th Floor
New York, NY 10036 By: /s/ HOWARD GOLDSTEIN
-------------------------------------
Shares: Print Name: Howard Goldstein
325,997 Series C Preferred Title:
----------------------------------
Address: CHANCELLOR PRIVATE CAPITAL
OFFSHORE PARTNERS I, C.V.
c/o INVESCO Private Capital, Inc.
1166 Avenue of the Americas,
27th Floor
New York, New York 10036 By: /s/ HOWARD GOLDSTEIN
-------------------------------------
Shares: Print Name: Howard Goldstein
26,341 Series C Preferred Title:
----------------------------------
13
<PAGE> 14
Address: INVESCO GLOBAL HEALTH SCIENCES FUND
7800 East Union Avenue
Denver, Colorado 80237 By:
-------------------------------------
Shares: Print Name:
-----------------------------
125,000 Series C Preferred Title:
----------------------------------
Address: BERKELEY INVESTMENT LTD.
1180 Avenue of the Americas,
Suite 1900
New York, New York 10036-8401 By: /s/ KISHORE MIRCHANDANI
-------------------------------------
Shares: Print Name: Kishore Mirchandani
Title: Director
31,250 Series C Preferred
Address: DAYSTAR REALTY LTD.
34-09 Queens Boulevard
Long Island City, New York 11101 By:
-------------------------------------
Shares: Print Name:
-----------------------------
31,250 Series C Preferred Title:
----------------------------------
Address: THE LIBERMAN FAMILY TRUST
1525 Camino Lindo,
South Pasadena, California 90130 By: /s/ RICARDO L. LIBERMAN, Trustee
-------------------------------------
Shares: Ricardo L. Liberman, Trustee
12,500 Series C Preferred
By: /s/ PATRICIA U. LIBERMAN, Trustee
-------------------------------------
Patricia U. Liberman, Trustee
Address: DR. ERNESTO GANGITANO
1341 Descanso Dr. /s/ ERNESTO GANGITANO
La Canada, California 91011 ----------------------------------------
Dr. Ernesto Gangitano
Shares:
12,500 Series C Preferred
14
<PAGE> 15
Address: JOHN F. VOGT FAMILY TRUST 11/7/89
625 Cumberland Road
Glendale, California 91202 By: /s/ JOHN F. VOGT
-------------------------------------
Shares: John F. Vogt, Trustee
12,500 Series C Preferred
By: /s/ NANCY R. VOGT
-------------------------------------
Nancy R. Vogt, Trustee
Address: DR. DENNIS C. PETERSON, M.D.
338 SW Greenwood Avenue
Topeka, Kansas 66606-1230 /s/ DENNIS C. PETERSON
----------------------------------------
Shares: Dennis C. Peterson, M.D.
12,500 Series C Preferred
Address: 3GT INVESTMENT PARTNERSHIP
845 Larch Avenue
Elmhurst, Illinois 60126 By: /s/ CRAIG J. DUCHOSSOIS
-------------------------------------
Shares: Print Name: Craig J. Duchossois
Its: Trustee
30,000 Series D Preferred
50,002 Series E Preferred
Address: CRAIG J. DUCHOSSOIS
845 Larch Avenue /s/ CRAIG J. DUCHOSSOIS
Elmhurst, Illinois 60126 ----------------------------------------
Craig J. Duchossois
Shares:
8,000 Series D Preferred
6,223 Series E Preferred
15
<PAGE> 16
Address: KIMBERLY T. DUCHOSSOIS,
845 Larch Avenue /s/ KIMBERLY T. DUCHOSSOIS
Elmhurst, Illinois 60126 ----------------------------------------
Kimberly T. Duchossois
Shares:
8,000 Series D Preferred
6,223 Series E Preferred
Address: RICHARD L. DUCHOSSOIS REVOCABLE
TRUST U/A/D 1/18/80
845 Larch Avenue
Elmhurst, Illinois 60126 /s/ CRAIG DUCHOSSOIS
----------------------------------------
Shares: Richard L. Duchossois, Trustee
8,000 Series D Preferred
6,223 Series E Preferred
----------------------------------------
Address: WPG-FARBER, WEBER PRESENT FUND, L.P.
590 Madison Avenue, 27th Floor
New York, New York 10022 By: /s/ RICHARD POLLACK
-------------------------------------
Shares: Print Name: Richard Pollack
Its: General Counsel
366,279 Series E Preferred
Address: WPG-FARBER WEBER OVERSEAS, L.P.
One New York Plaza By: Weiss, Peck & Greer, LLC, as
New York, New York 10004-1950 a General Partner
Shares: By: /s/ RICHARD POLLACK
-------------------------------------
20,339 Series E Preferred Print Name: Richard Pollack
Its: General Counsel
16
<PAGE> 17
Address: WPG-FARBER, PRESENT QP FUND, L.P.
One New York Plaza By: Weiss, Peck & Greer, LLC, as
New York, New York 10004-1950 a General Partner
Shares: By: /s/ RICHARD POLLACK
-------------------------------------
1,462 Series E Preferred Print Name: Richard Pollack
Its: General Counsel
Address: WPG-FARBER, PRESENT OVERSEAS, L.P.
One New York Plaza By: Weiss, Peck & Greer, LLC, as
New York, New York 10004-1950 a General Partner
Shares: By: /s/ RICHARD POLLACK
-------------------------------------
809 Series E Preferred Print Name: Richard Pollack
Its: General Counsel
Address: EDWARD A. FORTINO AND
DAYLE DUCHOSSOIS FORTINO
845 Larch Avenue
Elmhurst, Illinois 60126 /s/ EDWARD A. FORTINO
----------------------------------------
Shares: Edward A. Fortino
22,223 Series E Preferred /s/ DAYLE DUCHOSSOIS FORTINO
----------------------------------------
Dayle Duchossois Fortino
Address: WESTFIELD PERFORMANCE FUND
Westfield Capital Management
One Financial Center, 23rd Floor By: /s/ C. MICHAEL HAZARD
Boston, Massachusetts 02111 -------------------------------------
Print Name: C. Michael Hazard
Shares: Its:
------------------------------------
66,600 Series E Preferred
17
<PAGE> 18
Address: WESTFIELD TECHNOLOGY FUND
Westfield Capital Management
One Financial Center, 23rd Floor By: /s/ C. MICHAEL HAZARD
Boston, Massachusetts 02111 -------------------------------------
Print Name: C. Michael Hazard
Shares: Its:
------------------------------------
11,100 Series E Preferred
Address: ABS EMPLOYEES' VENTURE FUND, LP
375 W. Padonia Road
Timonium, Maryland 21093 By: /s/ MARGARET-MAY V. RESTON
-------------------------------------
Shares: Print Name: Margaret-May V. Reston
23,132 Series E Preferred Its: VP of Alex. Brown Investments, Inc.
GP of the partnership
Address: PATRICK SEAVER
650 Town Center Drive, Suite 2000 /s/ PATRICK SEAVER
Costa Mesa, California 92626 ---------------------------------------
Patrick Seaver
Shares:
5,555 Series E Preferred
Address: SCOTT HORNICK
223 S. Bayberry Street /s/ SCOTT HORNICK
Orange, California 92869 ---------------------------------------
Scott Hornick
Shares:
2,000 Series E Preferred
Address: RYAN DRANT
1119 St. Paul Street /s/ RYAN DRANT
Baltimore, Maryland 21202-6423 ---------------------------------------
Ryan Drant
Shares:
1,111 Series E Preferred
18
<PAGE> 19
Address: GORDON H. OLSON
4032 Calle Ariana /s/ GORDON H. OLSON
San Clemente, California 92622 ---------------------------------------
Gordon H. Olson
Shares:
2,000 Series E Preferred
Address: STEPHEN C. JENSEN
13672 Yellowstone Drive /s/ STEPHEN C. JENSEN
Santa Ana, California 92705 ---------------------------------------
Stephen C. Jensen
Shares:
1,000 Series E Preferred
Address: LOUIS J. KNOBBE
11670 Skyline Drive /s/ LOUIS J. KNOBBE
Santa Ana, California 92705 ---------------------------------------
Louis J. Knobbe
Shares:
1,000 Series E Preferred
Address: GERARD VON HOFFMANN
620 Newport Center Drive - 16th Floor /s/ GERARD VON HOFFMANN
Newport Beach, California 92660 ---------------------------------------
Gerard von Hoffmann
Shares:
1,000 Series E Preferred
Address: WILLIAM H. NIEMAN
1821 Whitestone /s/ WILLIAM H. NIEMAN
Santa Ana, California 92705 ---------------------------------------
William H. Nieman
Shares:
1,000 Series E Preferred
Address: RICHARD C. RIGGS, JR.
1405 Parker Road /s/ RICHARD C. RIGGS, JR.
Baltimore, Maryland 21227 ---------------------------------------
Richard C. Riggs, Jr.
Shares:
11,111 Series E Preferred
19
<PAGE> 20
Address: MOORE GLOBAL INVESTMENTS, LTD.
1251 Avenue of the Americas By: Moore Capital Management, Inc.
53rd Floor
New York, New York 10022
By: /s/ KEVIN SHANNON
Shares: ------------------------------------
Print Name: Kevin Shannon
637,779 Series E Preferred Its: CFO
Address: REMINGTON INVESTMENT STRATEGIES, L.P.
1251 Avenue of the Americas,
53rd Floor
New York, New York 10020 By: Moore Capital Advisors, LLC
Shares:
By: /s/ KEVIN SHANNON
140,000 Series E Preferred ------------------------------------
Print Name: Kevin Shannon
Its: CFO
Address: JAMES P. SCOPA
2650 Pierce Street /s/ JAMES P. SCOPA
San Francisco, California 94123 --------------------------------------
James P. Scopa
Shares:
2,200 Series E Preferred
Address: STRADLING YOCCA CARLSON & RAUTH
INVESTMENT PARTNERSHIP OF 1982
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660 /s/ MICHAEL E. FLYNN
--------------------------------------
Shares: Michael E. Flynn, Shareholder
3,700 Series E Preferred
20
<PAGE> 21
Address: TENNYSON PRIVATE PLACEMENT
OPPORTUNITY FUND, LLP
29 W. Susquehanna Avenue, 4th Floor
Towson, Maryland 21204
Shares: By: /s/ ALFRED M. WALPERT
-----------------------------------
50,000 Series E Preferred Print Name: Alfred M. Walpert
Its: Managing Member
Address: TIMOTHY M. MURPHY AND
IRENE P. GALLO MURPHY
55 Buick Street
Watertown, Massachusetts 02172 /s/ TIMOTHY M. MURPHY
--------------------------------------
Shares: Timothy M. Murphy
10,000 Series E Preferred /s/ IRENE P. GALLO MURPHY
--------------------------------------
Irene P. Gallo Murphy
Address: GREENWOOD EQUITIES, LLC
36 S. Charles Street
Baltimore, Maryland 21201
By: /s/ STANDARD T. KLINEFELTER
Shares: -----------------------------------
Print Name: Standard T. Klinefelter
11,111 Series E Preferred Its: Managing Member
Address: JULIET CHALLENGER, INC.
824 Market Street, Suite 900
Wilmington, Delaware 19801
By: /s/ ANDREW H. MCQUARRIE
Shares: -----------------------------------
Print Name: Andrew H. McQuarrie
361,111 Series E Preferred Its: Vice President
21
<PAGE> 22
Address: HENRY L. HILLMAN TRUST U/A DATED
NOVEMBER 18, 1985
1800 Grant Building
Pittsburgh, Pennsylvania 15219 /s/ C.G. GREFENSTETTE
--------------------------------------
Shares: C.G. Grefenstette, Trustee
83,333 Series E Preferred
Address: TRUST DATED 12/30/76 FOR CHILDREN OF
JULIET LEA HILLMAN SIMONDS
1800 Grant Building
Pittsburgh, Pennsylvania 15219 /s/ THOMAS G. BIGLEY
--------------------------------------
Shares: Thomas G. Bigley, Trustee
27,778 Series E Preferred /s/ C.G. GREFENSTETTE
--------------------------------------
C.G. Grefenstette, Trustee
Address: TRUST DATED 12/30/76 FOR CHILDREN OF
AUDREY HILLMAN FISHER
1800 Grant Building
Pittsburgh, Pennsylvania 15219 /s/ THOMAS G. BIGLEY
--------------------------------------
Shares: Thomas G. Bigley, Trustee
27,778 Series E Preferred /s/ C.G. GREFENSTETTE
--------------------------------------
C.G. Grefenstette, Trustee
Address: TRUST DATED 12/30/76 FOR CHILDREN OF
HENRY LEA HILLMAN, JR.
1800 Grant Building
Pittsburgh, Pennsylvania 15219 /s/ THOMAS G. BIGLEY
--------------------------------------
Shares: Thomas G. Bigley, Trustee
27,778 Series E Preferred /s/ C.G. GREFENSTETTE
--------------------------------------
C.G. Grefenstette, Trustee
22
<PAGE> 23
Address: TRUST DATED 12/30/76 FOR CHILDREN OF
WILLIAM TALBOTT HILLMAN
1800 Grant Building
Pittsburgh, Pennsylvania 15219 /s/ THOMAS G. BIGLEY
--------------------------------------
Shares: Thomas G. Bigley, Trustee
27,778 Series E Preferred /s/ C.G. GREFENSTETTE
--------------------------------------
C.G. Grefenstette, Trustee
Address: THOMAS R. HITCHNER
200 Wyndhurst Avenue /s/ THOMAS R. HITCHNER
Baltimore, Maryland 21210 --------------------------------------
Thomas R. Hitchner
Shares:
4,445 Series E Preferred
Address: COLIN CORPORATION
2007-1
Hayasaki By: /s/ MASAYUKI SHINODA
Komachi City, Aichi Pref, Japan ----------------------------------
485-8501 Print Name: Masayuki Shinoda
Title: Chairman & CEO
Shares:
33,333 Series E Preferred
23
