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Masimo Corp – ‘S-1’ on 4/17/07 – EX-10.16

On:  Tuesday, 4/17/07, at 4:47pm ET   ·   Accession #:  1193125-7-82880   ·   File #:  333-142171

Previous ‘S-1’:  ‘S-1/A’ on 11/14/00   ·   Next:  ‘S-1/A’ on 5/29/07   ·   Latest:  ‘S-1/A’ on 8/7/07   ·   12 References:   By:  Masimo Corp. – ‘10-K’ on 2/28/24 for 12/30/23 By:  Masimo Corp. – ‘10-K/A’ on 5/1/23 for 12/31/22 By:  Masimo Corp. – ‘10-K’ on 3/1/23 for 12/31/22 By:  Masimo Corp. – ‘10-Q’ on 11/9/22 for 10/1/22 By:  Masimo Corp. – ‘10-Q’ on 8/10/22 for 7/2/22 By:  Masimo Corp. – ‘10-Q’ on 5/3/22 for 4/2/22 By:  Masimo Corp. – ‘10-K’ on 2/16/22 for 1/1/22 By:  Masimo Corp. – ‘10-Q’ on 10/26/21 for 10/2/21 By:  Masimo Corp. – ‘10-Q’ on 7/27/21 for 7/3/21 By:  Masimo Corp. – ‘10-Q’ on 4/27/21 for 4/3/21 By:  Masimo Corp. – ‘10-K’ on 2/23/21 for 1/2/21 By:  Masimo Corp. – ‘10-Q’ on 10/27/20 for 9/26/20 

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/17/07  Masimo Corp                       S-1                   44:20M                                    RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-1         Form S-1 for Masimo Corporation                     HTML   2.16M 
 2: EX-3.1      Amended and Restated Certificate of Incorporation   HTML    111K 
 3: EX-3.3      Bylaws, as Currently in Effect                      HTML     85K 
 4: EX-3.4      Amended and Restated Bylaws to Be Effective Upon    HTML     83K 
                          Closing of the Offering                                
 5: EX-4.2      Fifth Amended and Restated Registration Rights      HTML    280K 
                          Agreement Dated 09/14/1999                             
 6: EX-10.1     Form of Indemnity Agreement                         HTML     43K 
15: EX-10.10    Manufacturing and Purchase Agreement, Dated         HTML     47K 
                          08/19/2005                                             
16: EX-10.11    Shelter Labor Services Agreement, Dated 12/27/2000  HTML    177K 
17: EX-10.12    Lease Agreement, Effective as of 02/01/2001         HTML    149K 
18: EX-10.13    Lease Agreement, Dated 04/14/2003                   HTML     92K 
19: EX-10.14    Lease Agreement, Dated 12/26/2006                   HTML    144K 
20: EX-10.15    Purchase Agreement, Dated 07/26/2001 With Jabil     HTML     62K 
                          Circuit, Inc.                                          
21: EX-10.16    Contribution and Assignment Agreement, Dated        HTML   8.55M 
                          01/01/05 With Masimo Americas, Inc.                    
22: EX-10.17    Sales and Distribution Agreement, Dated 01/01/2005  HTML     56K 
                          With Masimo Americas, Inc.                             
23: EX-10.18    Occupancy Agreement, Dated 01/01/2005, With Masimo  HTML     35K 
                          Americas, Inc.                                         
24: EX-10.19    Management Services Agreement, Dated 01/01/2005     HTML     31K 
                          With Masimo Americas, Inc.                             
 7: EX-10.2     Employment Agreement, Dated 04/13/2007, With Joe    HTML     69K 
                          E. Kiani                                               
25: EX-10.20    Sublease Agreement, Dated 01/31/2004, With          HTML    389K 
                          Multilayer Technology, Inc.                            
26: EX-10.21    Standard Industrial/Commercial Multi-Tenant         HTML    351K 
                          Lease-Net, Dated 02/08/2006                            
27: EX-10.22    Pulse Oximetry & Related Products Capital           HTML    226K 
                          Equipment Supplier Agreement                           
28: EX-10.23    Group Purchasing Agreement-Capital Equipment,       HTML    336K 
                          Dated 03/01/2006                                       
29: EX-10.24    Supply Agreement, Dated 02/22/2002 With Wintek      HTML     58K 
                          Electro-Optics Corporation                             
30: EX-10.25    Form of Equipment Purchase and Assignment of        HTML     55K 
                          Proceeds                                               
31: EX-10.26    Intercompany Agreement, Dated 01/01/2006, With      HTML     61K 
                          Spo2.Com                                               
32: EX-10.27    Intercompany Agreement, Dated 01/01/2006, With      HTML     61K 
                          Masimo Japan Corporation                               
33: EX-10.28    Intercompany Agreement, Dated 01/01/2006, With      HTML     63K 
                          Masimo Canada Ulc                                      
34: EX-10.29    Intercompany Agreement, Dated 01/01/2006, With      HTML     87K 
                          Masimo Europe Limited                                  
 8: EX-10.3     Indefinite Term Employment Contract, Dated          HTML     78K 
                          12/31/2005, With Olivier Berthon                       
35: EX-10.30    Settlement Agreement and Release of Claims, Dated   HTML    146K 
                          01/17/2006                                             
36: EX-10.31    Third Amended and Restated 1996 to Stock Option     HTML    137K 
                          Plans and Purchase Plans                               
37: EX-10.32    2004 Stock Option Plans and Restricted Stock        HTML    177K 
                          Purchase Plan                                          
38: EX-10.33    2007 Stock Incentive Plan                           HTML    440K 
39: EX-10.34    Amended and Restated Cross-Licensing Agreement      HTML    140K 
40: EX-10.35    Services Agreement                                  HTML     47K 
41: EX-10.36    Adsp-2136X Sharc Rom Agreement, Dated 07/19/2004,   HTML     59K 
                          With Analog Devices Inc.                               
 9: EX-10.4     Offer Letter, Dated 03/31/1995, Between Ammar       HTML     20K 
                          Al-Ali and the Registrant                              
10: EX-10.5     Offer Letter, Dated 02/09/1996, Between Bradley R.  HTML     21K 
                          Langdale and the Registrant                            
11: EX-10.6     Offer Letter, Dated 05/29/2002, Between Chris       HTML     23K 
                          Kilpatrick and the Registrant                          
12: EX-10.7     Offer Letter, Dated 02/15/1996, Between Yongsam     HTML     21K 
                          Lee and the Registrant                                 
13: EX-10.8     Offer Letter, Dated 03/30/2007, Between Anand       HTML     19K 
                          Sampath and the Registrant                             
14: EX-10.9     Offer Letter, Dated 06/09/2006, Between Mark De     HTML     22K 
                          Raad and the Registrant                                
42: EX-16.1     Letter From Pricewaterhousecoopers LLP              HTML     15K 
43: EX-21.1     List of Registrant's Subsidiaries                   HTML     16K 
44: EX-23.1     Consent of Independent Registered Public            HTML     15K 
                          Accounting Firm                                        

Exhibit 10.16

CONTRIBUTION AND ASSIGNMENT AGREEMENT

THIS CONTRIBUTION AND ASSIGNMENT AGREEMENT (this “Agreement”) is made and entered into as of 12:01 a.m. the 1st day of January, 2005 by and among Masimo Corporation, a Delaware corporation (“Assignor”) and Masimo Americas, Inc., a Delaware corporation (“Assignee”).

RECITALS

WHEREAS, Assignor manufactures, sells and licenses read-through motion and low perfusion pulse oximetry technologies and products throughout the world.

WHEREAS, Assignor formed Assignee as a wholly-owned subsidiary of Assignor and desires to contribute and assign to Assignee the assets and liabilities related to Assignor’s North America, Central America and South America sales, distribution and marketing operations (the “Business”).

WHEREAS, Assignee desires to accept and assume the assets and liabilities related to the Business and to retain the employees of Assignor needed to operate the Business (the “Transferred Employees”).

NOW, THEREFORE, for good and valuable consideration of the mutual covenants and agreements set forth herein, the receipt of which is hereby acknowledged, the parties agree as follows:

1. Contribution and Assignment of Assets. Assignor hereby contributes, assigns, transfers and conveys to Assignee, a wholly owned subsidiary of Assignor, as a contribution to the paid in surplus of Assignee, all of Assignor’s right, title and interest in and to the assets, wherever located, specifically described below (collectively, the “Assigned Assets”):

(a) all personal property and interests therein, including machinery, equipment, furniture, office equipment, communications equipment, vehicles and other tangible property listed on Schedule 1(a) hereto;

(b) all rights under all contracts, agreements, leases, licenses, commitments, sales and purchase orders and other instruments listed on Schedule 1(b) hereto (collectively, the “Assumed Contracts”);

(c) all accounts, notes and other receivables relating to the Business listed on Schedule 1(c);

(d) all prepaid expenses and deposits relating to the Business including without limitation ad valorem taxes, leases and rentals listed on Schedule 1(d);

(e) cash in the amount of $3,500,000;

(f) all rights, claims, credits, causes of action or rights of set-off against third parties relating to the Assigned Assets;

(g) Certain intangible assets relating to and used in the Business, including, but not limited to, supplier lists, customer lists, mailing lists, advertising and promotional materials, business records, market and consumer stock (collectively, “Intangible Property”); but specifically excluding any service marks, trademarks, trade names, logos, trade secrets, patents, copyrights, any registered or unregistered designs, artwork and origination, proprietary rights and other intellectual property of Assignor.

2. Assumption of Contracts. Assignor hereby contributes, transfers, conveys, assigns, and delivers to Assignee all of Assignor’s rights under the Assumed Contracts. The foregoing assignment shall be effective immediately, except where a consent is required from a third party to the assignment of such Assumed Contract, then not until receipt of such consent.

3. Assumption of Assumed Liabilities and Commitments. In consideration for the transfer and assignment of the Assigned Assets by Assignor, Assignee hereby assumes and undertakes to assume, pay, perform, satisfy and discharge all of the following liabilities (the “Assumed Liabilities”):

(a) all accounts payable of Assignor arising from the Business listed on Schedule 3(a); and

(b) all obligations and claims arising under the Assumed Contracts;

(c) all outstanding employment relationships with Assignor’s personnel listed on Schedule 3(c) hereto; and

(d) all obligations arising under contracts with third party finance companies to collect payments from hospitals as listed on Schedule 3(d) hereto;

4. Excluded Liabilities. Assignee does not assume and does not agree to assume or pay any liabilities or obligations of other than the Assumed Liabilities.

5. Excluded Assets. The Assigned Assets shall not include, and Assignor shall retain, (i) all inventory of finished goods of Assignor, (ii) all equipment of Assignor placed at hospitals and subsequently sold to third party financing companies, and (iii) any commercial tort claims of Assignor (including, but not limited to infringement or antitrust claims) whether known or unknown.

6. Further Assurances. Assignor hereby covenants and agrees to cooperate and cause its subsidiaries and affiliates to cooperate with Assignee from time to time on or after the date hereof, upon request of Assignee and without further consideration, to take all actions and to execute and deliver all other documents and instruments reasonably necessary or appropriate to fully evidence, vest, perfect and confirm, document, record and

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carry out the contribution, sale, assignment, transfer and delivery of the Assigned Assets and Assumed Liabilities contemplated hereby and Assignee’s ownership of all rights, title and interests therein at Assignor’s expense.

7. Unassignable Assets or Contracts. To the extent that any of the Assigned Assets or Assumed Liabilities are not assignable or otherwise transferable by Assignor to Assignee without the consent, approval or waiver of another party thereto or any third party (including any governmental agency), or if such assignment or transfer would constitute a breach thereof or of any other material contract binding upon Assignor, or a violation of any applicable law, then this Agreement shall not constitute an assignment or transfer (or an attempted assignment or transfer) thereof until such consent, approval or waiver of such party or parties has been duly obtained. Assignor and Assignee will use their best efforts (but without any payment of money by Assignor or Assignee) to obtain the consent, approval or waiver of the other parties to any such Assigned Asset or Assumed Liability for the assignment thereof to Assignee. If such consent, approval or waiver is not obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights thereunder so that Assignee would not in fact receive all such rights and all related obligations, Assignor will cooperate in a mutually agreeable arrangement under which Assignee would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including subcontracting, sublicensing, or subleasing to Assignee, or under which Assignor, at Assignee’s expense, would enforce for the benefit of Assignee, with Assignee assuming Assignor’s obligations, any and all rights of Assignor against a third party thereto. Assignor will promptly pay to Assignee when received all monies received by Assignor with respect to any Assigned Asset or any claim or right or any benefit arising thereunder.

8. Occupancy of Premises. Concurrently with the execution of this Agreement, Assignor and Assignee have entered into that certain Occupancy Agreement set forth on Exhibit A hereto, under which Assignee shall have the right to use a portion of the office and warehouse space currently leased by Assignor.

9. Management Agreement. Concurrently with the execution of this Agreement, Assignor and Assignee have entered into that certain Management Services Agreement set forth on Exhibit B hereto.

10. Sales and Distribution Agreement. Concurrently with the execution of this Agreement, Assignor and Assignee have entered into that certain Sales and Distribution Agreement set forth on Exhibit C hereto.

11. Audit Changes. Assignor reserves the right to verify all schedules referenced in and attached to this Agreement and, as necessary, to make appropriate and reasonable revisions thereto, based upon the final audit of Assignor’s annual financial statements.

12. Entire Agreement. This Agreement, together with the exhibits and schedules attached hereto, embody the entire understanding between the parties relating to its subject matter. This agreement may not be modified or terminated except by a writing

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duly signed by each of the parties hereto, and no waiver of any provision of this Agreement shall be effective unless in a writing duly signed by the party sought to be bound.

13. Governing Law. This Agreement is governed by and is to be construed in accordance with the laws of the State of California without giving effect to any provisions thereof relating to conflict of laws.

14. Successors and Assigns. This Agreement shall bind and inure to the benefit of Assignee and Assignor and their respective successors and assigns.

15. Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision.

16. Counterparts. This Agreement may be executed in any number of counterparts, each of which is an original and all of which taken together constitute one instrument.

[signatures on following page]

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IN WITNESS WHEREOF, the parties have executed this Contribution and Assignment Agreement as of the date first above written.

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Schedules

(attached)

Exhibit A

Occupancy Agreement

(attached)

Exhibit B

Management Services Agreement

(attached)

Exhibit C

Sales and Distribution Agreement

(attached)

SCHEDULE 1(a)

All FAS Assets as of 12/31/2004

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SCHEDULE 1(a)

All FAS Assets as of 12/31/2004