Fifth Amended and Restated Registration Rights Agreement between Masimo Corporation and Preferred Stockholders

Summary

This agreement, dated September 14, 1999, is between Masimo Corporation and holders of its Series A, B, C, E, and F Preferred Stock. It grants these stockholders the right to require Masimo to register their shares for public sale under certain conditions. The agreement outlines how and when stockholders can request registration, the company's obligations to facilitate it, and limits on the number and timing of such requests. It replaces previous similar agreements and ensures preferred stockholders can sell their shares publicly if they follow the specified procedures.

EX-10.12 18 a60301ex10-12.txt EXHIBIT 10.12 1 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. 2 (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. 2 3 (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 3 4 (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. 4 5 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 5 6 (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 6 7 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 7 8 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. 8 9 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 9 10 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 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 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 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 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 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 ###-###-#### /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 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 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 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 ###-###-#### --------------------------------------- Ryan Drant Shares: 1,111 Series E Preferred 18 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 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 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 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 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