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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
| Lease Agreement, dated 04/14/2003 |
Exhibit 10.13
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. §§ 200.80(b)(4)
and 230.406
LEASE AGREEMENT entered into by and between INDUSTRIAS ASOCIADAS MAQUILADORAS, S. A. de C. V. (hereinafter referred to as IAMSA), herein represented by Mr. Jaime Roberts Vildosola) and INDUSTRIAL VALLERA DE MEXICALI, S. A. DE C. V., (hereinafter referred to as COMPANY), herein represented by Mr. Sergio Tagliapietra Nassri, Legal Representative, pursuant to the following RECITALS and CLAUSES.
RECITALS
I.- IAMSA declares that:
A.- It is a Company organized and existing under Mexican General Corporation Law, as per Public Instrument No. 13,602 dated August 8, 1955, before Notary Public Number One of the City of Mexicali, Baja California, Attorney Macedonio R. Gutierrez, registered under number 2900, pages 339, Volume XII, on November 3, 1955; this public Instrument was later amended through other instruments, including Public Instrument Number 229,855, dated August 14, 1987, before Notary Public as Associate in Protocol of Notary Ten of the Federal District, Attorney Francisco Lozano Noriega, wherein the actual denomination of INDUSTRIAS ASOCIADAS MAQUILADORAS, S. A. DE C. V. was adopted. IAMSA has as its corporate object the development and operation of Industrial Parks in the City of Mexicali, Baja California, Mexico, including that known as Las Californias Industrial Park.
B. Mr. Jaime Roberts Vildosola is its Legal Representative, as evidenced by in Public Instrument No. 230,465, volume 8965, dated September 28, 1987, executed before Attorney Francisco Lozano Noriega y Tomas Lozano Molina, Notary Public No. 87 of Mexico City.
C. IAMSA’s registration number at the Federal Registry of Tax Payers is: IAM-870622-MF4.
D. The address at which it has its principal place of business is Km. 10.5 on Highway to San Luis, Rio Colorado, Sonora, Mexicali Baja California, Mexico.
E. IAMSA has established the “Palaco Industrial Park”, hereinafter referred to as the Industrial Park, and more specifically shown described on Exhibit “A”, which is attached hereto and made a part hereof.
F. The parties desire to enter into a lease regarding lot number 5, block number 3 & lot number 6 block East, with a total area of 20,892.22 square meters and a portion of the building located at Calzada del Oro #2001 int. 5 Parque Industrial Palaco, Mexicali, B.C. Zip Code 21600. The portion of the building which is subject of this Lease Agreement is constructed as a basic shell with warehouse area of approximately 95,000 square feet, which consists of a portion of the warehouse of the “Scotsdale” building module 3 with a total area of 15,500 square feet (see Exhibit “B”). This area includes production & warehouse (13,926 s.f.), parking, offices (1,574 s.f.), and access to 2 loading docks and 1 level access ramp. The property subject matter of this lease and the improvements, together shall hereinafter be referred to as Leased Property (See Exhibits A, B & C).
G. IAMSA has previously applied for and obtained financial loans through Mexican and Foreign Banking and Lending Institutions, with which funds, buildings and improvements located in the Industrial Park, are being constructed.
II.-COMPANY declares that:
A. It is organized under the Mexican General Corporation Law as per Public Instrument No. 22,079, Volume 349 executed on June 30, 1982, before Attorney Fernando Diaz Ceballos, Notary Public Number Four of the City of Mexicali, Baja California, properly registered in the Public Registry of Property and Commerce of this City of Mexicali, under number 2,039, on August 30, 1982. Such document was amended by means of Public Instrument Number 26,551, volume 511, dated January 8, 1987, before Attorney Eduardo Illades Villafaña, Notary Public Number Six of the City of Tijuana, Baja California, duly registered in the Public Registry of Property and Commerce of this City of Mexicali, Baja California, under number 5,339, pages 457, of volume XIII, First Book, Commerce Section, that contains the change of denomination to INDUSTRIAL VALLERA DE MEXICALI, S. A. DE C. V.
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B. Mr. Sergio Tagliapietra Nassri verifies his capacity as attorney-in-fact of COMPANY as per the Public Instrument No. 28,902 Volume 552 executed on November 27, 1987, before Attorney J. Eduardo Illades Moreno, Notary Public No. Six of the City of Tijuana, Baja California, properly registered in the Public Registry of Property and Commerce.
C. Company’s registration number at the Federal Registry of Taxpayers is IVM- 861027-KH1.
D. The address at which it has its principal place of business is precisely the Leased Property subject matter of this Agreement.
CLAUSES
I. SCOPE OF LEASE AGREEMENT
On the express terms and conditions set forth hereinafter, the scope of this Lease Agreement is as follows: IAMSA hereby leases to COMPANY, and COMPANY hereby leases from IAMSA the building in the Industrial Park as precisely described in “Exhibit B”, referred to above, which is attached hereto and made a part hereof, and the improvements as more specifically described in “Exhibit C”. It is expressly understood that COMPANY enters this agreement with the intention of fabricating “disposable medical products”.
II. CONSTRUCTION BY IAMSA
A. All improvements to the Leased Property have been constructed in accordance with specifications approved by IAMSA and COMPANY.
B. IAMSA shall perform all future improvements in accordance with all laws, ordinances, regulations, and orders of governmental authorities, and the Industrial Park Regulations which are attached hereto as “Exhibit D”.
C. IAMSA will proceed diligently with construction and completion of the improvements, so as to allow the use of previously designated areas for the purposes contemplated and in accordance with the Specifications.
D. COMPANY shall have the right to require changes in the Specifications during the course of construction provided that such changes do not unreasonably delay completion of Improvements and provided that COMPANY reimburses IAMSA upon demand for any additional costs incurred by IAMSA by reason of changes required by COMPANY. COMPANY hereby waives the right to object to any delay in completion caused by said changes in Specifications.
E. The Leased Property shall be considered ready for occupancy as of July 1, 2003, on which date COMPANY will be able to use the Leased Property for those purposes previously contemplated and in accordance with the Specifications.
IAMSA shall diligently complete or repair, as soon as possible, any items or corrections not completed when the Leased Property is ready for occupancy.
F. Upon prior written consent of IAMSA, COMPANY may, at any time prior to the commencement of the term hereof, at its sole risk, enter upon and install such trade fixtures and equipment in the Leased Property as it may elect.
G. IAMSA hereby acknowledges that any and all construction improvements to be completed by IAMSA hereunder, either during the pre-lease term of afterwards, either with IAMSA’s employees or third parties contracted by IAMSA, will be the sole responsibility of IAMSA and therefore guarantees and warrants to COMPANY that such employees and third parties will be in full compliance with all pertinent construction and Social Security, tax, labor and other applicable Mexican laws and regulations.
III. INSTALLATIONS BY COMPANY
A. COMPANY may, at its expense, install on the Leased Property, such trade fixtures, equipment and furniture as it may deem necessary; provided that such items are installed and are removable without damage to the structural integrity of the Building and Improvements. Said trade fixtures, equipment and furniture shall remain COMPANY’s property and unless COMPANY is in default hereunder, shall be removed by COMPANY upon expiration of the term hereof, or earlier termination of this Lease. COMPANY may also install temporary improvements in the interior of the Building, provided that such improvements are installed and removed without damage to the structure of the Improvements. COMPANY shall repair, at its sole expense, all damage caused by the installation or removal of such trade fixtures, equipment, furniture or temporary improvements.
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B. COMPANY shall perform all installations in accordance with all laws, ordinances, regulations, orders of government authorities, and the Industrial Park Regulations which are attached hereto as “Exhibit D”.
IV. LEASE TERM AND COMMENCEMENT DATE.
A.- Lease Agreement. Commencement Date, July 1, year 2003 until June 30, year 2008:
B.- Term.- The term of this Lease shall be for five (5) years, binding for the parties, commencing on the date stated in item A) above, July 1, 2003 and shall end on the last day of the last month of the 5th year of the term, full lease year, as said term is hereafter defined.
C. Lease Year. The term “Lease Year” as used herein, shall mean a period of twelve (12) consecutive full calendar months. The first Lease Year shall begin on the date of commencement of the term hereof or at occupancy of the Leased Property, if the date of commencement of the term hereof shall occur on the first day of a calendar month; if not then the first Lease Year shall commence upon the first day of the calendar month following the date of commencement of the term hereof.
D. Renewal of Lease Agreement. It is understood that LESSEE shall have the right to extend the term of this lease agreement after termination of the original term. LESSEE shall notify LESSOR in writing, at least 180 days prior to the termination of the original term, regarding it’s intention to exercise this option. If no written notice is received prior to such period, it is understood that the LESSEE has no intention to renew the lease and consequently shall immediately proceed to vacate the premises as stated hereunder. It is also agreed that the payment rent during the first year of the extension period, will be the same in force during the last year of the original lease term, reflecting only the annual increasing as established in Clause V, paragraph A of this lease agreement.
V. RENT.
A. Lease.- As fixed rent for the Lease of the Leased Premises during the Lease Term hereof, COMPANY shall pay to IAMSA the amount equivalent to […***…] currency of the United States of America) equivalent to […***…] currency of the United States of America), plus the Value Added Tax, per square foot per month, payable precisely in such currency or its equivalent in Mexican Currency at the rate of exchange prevailing at the time of payment for the sale of dollars at Banco BITAL, Las Californias Branch. Such amount shall be payable in advance on the first day of each month at the address of IAMSA. Said rent shall be adjusted annually to reflect the increase of the Los Angeles-Anaheim-Orange County Consumer Price Index on each anniversary of the lease term.
B. Maintenance fee. COMPANY shall pay a monthly maintenance fee for the building, which covers the costs of landscaping, public lighting, street up-keep, security guards, common area litter removal and external building maintenance, at the rate of […***…] per square feet plus the Value Added Tax, payable jointly with the monthly rent. Such fee shall be adjusted annually to reflect the increase of the Los Angeles-Anaheim-Orange County Consumer Price Index on each anniversary of the lease term.
If such rent and maintenance fee are not paid within (5) days after the first day of any given month, it shall become delinquent and late payment penalty will be applied of 5% of the monthly rent.
IAMSA and COMPANY hereby agree that maintenance for specific equipment such as A/C units, compressors, electrical transformers, will be COMPANY’s sole responsibility. For such purpose, COMPANY will obtain a maintenance policy covering said specific equipment property of IAMSA and COMPANY shall assume all liabilities concerning it’s own equipment. Further, COMPANY shall obtain an insurance on such equipment and improvements property of IAMSA, in an amount sufficient to provide for their replacement in the event of damage, naming IAMSA as the beneficiary.
C. Notwithstanding the above statements, COMPANY will pay the rent provided for in the above, at the address of IAMSA as set forth in this Agreement, or at the address of the banking financial institution or to any assignee of IAMSA, as IAMSA may direct, under the terms of Clause XIII of this Lease Agreement.
* Confidential Treatment Requested
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D. Prorate.- The rent for any partial month shall be prorated.
E. Liquidated Damages. Termination by IAMSA of this Lease Agreement due to a default of COMPANY, prior to or during the first six (6) months of the Lease Term, or termination by COMPANY without cause, entitles IAMSA to apply as liquidated damages all sums paid or deposited by COMPANY, as prepaid rent or as a security deposit, in addition to any other rights of IAMSA provided for herein.
F. Setoff. The payment of any rent due under this Lease, shall not be withheld or reduced for any reason whatsoever, and COMPANY agrees to assert any claim, demand, or other right against IAMSA only by way of an independent proceeding.
VI. USE.
The Leased Property shall be used and occupied for any Lawful industrial purpose not in violation of the Industrial Park Regulations attached hereto as “Exhibit D”. COMPANY shall promptly and adequately comply with all laws, ordinances and orders of all governmental authorities affecting the Leased Property or that may be a menace to other occupants of the Industrial Park.
VII. INSURANCE.
A. Fire and Other Insurance.- Effective as of the date of commencement of the Lease, COMPANY will obtain insurance covering the building, building improvements, its contents and third parties damages, in an amount sufficient to provide for their replacement. All insurance policies will name IAMSA as the beneficiary. If such policies are not obtained on or before the commencement date, IAMSA will contract an insurance policy equivalent to cover such contingencies and COMPANY will be responsible to reimburse IAMSA the amount for the corresponding premiums immediately upon demand.
B. Form and Delivery of Policies.- Each insurance policy referred to in the preceding paragraphs shall be in a form approved by the Department of Finance and Public Credit and written with one or more companies licensed to do insurance in Mexicali, Baja California, Mexico, and shall provide that it shall not be subject to cancellation or change, except after at least 30 days prior written notice to IAMSA. Prior to the Commencement Date of the Lease Term, each of the parties shall procure and maintain such Insurance deemed necessary to cover its liabilities and property. COMPANY shall deliver to IAMSA the corresponding policies within thirty (30) days following the date of signature of the agreement.
C. Guaranty. It is clearly understood that LESSOR has been induced to enter into this Lease with LESSEE due to the guaranties to be submitted by LESSEE. Consequently, LESSEE shall assure that a Guarantee under the form of Exhibit “E” attached hereto, is given by Masimo Corporation, a Delaware corporation (“GUARANTOR”), to insure the adherence by LESSEE of all of the conditions, covenants, obligations, liabilities and agreements set forth in this Lease Agreement. In lieu of the aforementioned Guaranty, In the event that the GUARANTOR does not satisfy the financial requirements, the parties shall agree on some other arrangement such rental insurance or bond for a period covering the Initial Lease Term.
VIII. TAXES AND ASSESSMENTS.
With the exception of the income tax and fixed asset tax imposed on IAMSA, which shall be borne by IAMSA, COMPANY shall pay all taxes and assessments of every kind, which are or may be at any time during the Leased Term levied against the Leased Property, the Lease Agreement, or COMPANY. All such taxes and assessments shall be paid by COMPANY, and receipt showing their payment delivered to IAMSA before such taxes and assessments become delinquent.
All taxes which shall become due for the first and last years of the Lease Term shall be distributed proportionally between IAMSA and COMPANY in accordance with the respective numbers of months during which each party shall be in possession of the Leased Property. COMPANY also agrees to pay all taxes and assessments of every kind levied upon any and all personal property of COMPANY, its successors and assigns, whether same shall or may become a lien upon the Leased Property. All such taxes and assessments shall be paid by COMPANY before the same become delinquent.
IX. REPAIRS, ALTERATIONS AND IMPROVEMENTS.
A. IAMSA
1. After receipt of written notice from COMPANY, IAMSA, at its expense shall, with minimum interference of COMPANY’s normal use of the Leased Property, diligently proceed to repair any structural defects in the roof or exterior bearing walls, as constructed by IAMSA, excepting normal use, wear and damage. IAMSA shall not be liable for any damages, and shall not be obligated to make any repairs due to damages caused by any negligent act or omissions of
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COMPANY, its employees, agents, invitees or contractors. IAMSA shall have no other obligation to maintain or repair any other
portion of the Leased Property, except for the repair of those improvements constructed by, IAMSA for COMPANY for a period of one year after its completion. IAMSA shall not be liable to COMPANY for any damage resulting from lAMSA’s failure to make repairs, unless COMPANY has notified IAMSA of the need for such repairs, and IAMSA has failed to commence such repairs within seven (7) working days after said notice has been given and has failed to complete the same in a diligent manner in the case of urgent matters.
2. If IAMSA fails to make the repairs described in Clause IX, “A”, COMPANY may, but shall not be required to, make or cause such repairs to be made, and IAMSA shall, on demand, immediately pay to COMPANY the cost of the repairs.
B. COMPANY
1. COMPANY, at its expense, shall keep and maintain in good order and repair, except for normal use and wear, all of the Leased Property, including improvements, except for those obligations of IAMSA stated in paragraph “A”, 1, of this Clause including but not limited to, all plumbing, sewage and other utility facilities that are within the Leased Property, as well as fixtures, partitions, walls (interior and exterior, including painting as often as necessary), floors, ceilings, signs, air conditioning, electric installations, heating, and similar equipment, doors, windows, plate glass and all other repairs to the Leased Property. COMPANY at its expense, shall repair all leaks except those caused by structural defects in the roof and exterior walls. The plumbing facilities shall not be used for any other purpose than that for which they were constructed. The expense of any breakage, stoppage or damage resulting from a violation of this provision, shall be borne by COMPANY. COMPANY shall store all trash only temporarily within Leased Property, and shall arrange for the regular pick-up of trash at COMPANY’s expense. COMPANY shall not burn any trash of any kind in or about the Leased Property or the Industrial Park or near it.
2. COMPANY shall require lAMSA’s written consent to make any alterations, improvements or additions to the exterior walls and roof of the Leased Property with a cost exceeding US$5,000.00 (FIVE THOUSAND DOLLARS 00/100 CURRENCY OF THE UNITED STATES OF AMERICA). COMPANY shall not damage any floors, walls, ceilings, partitions, or any wood, stone or ironwork on or about the Leased Property in connection with the construction of any such alterations or improvements.
3. COMPANY shall keep the Leased Property free and clear of all encumbrances and liens arising out of acts or omissions of COMPANY, including those arising out of acts or construction done or ordered by COMPANY. However, if by reason of any work performed, materials furnished or obligations incurred by COMPANY with any third party, or any other act or omission by COMPANY, IAMSA is made liable or involved in litigation, COMPANY shall hold harmless and indemnify IAMSA including any costs and expenses, and attorney’s fee incurred by reason thereof. Should COMPANY fail fully to discharge any such encumbrances or liens within thirty (30) days after the date the same appears of record or fail to provide a bond acceptable to IAMSA in case of litigation, IAMSA at its option, may pay all or any part thereof. If IAMSA pays any such lien or encumbrances or any part thereof, COMPANY shall, on demand, immediately pay IAMSA the amount so paid, together with interest at the rate of 30 percent (30%) per annum from the date of payment. No lien or encumbrance any character whatsoever created by and act or omission by COMPANY shall in any way attach or affect the rights of IAMSA over the Leased Property. Although, if COMPANY by any reason of any work performed, materials furnished or obligations incurred by IAMSA with any third party, or any other act or omission by IAMSA, COMPANY is made liable or involved in litigation, IAMSA shall hold harmless and indemnify COMPANY including any costs and expenses, and attorney’s fee incurred by reason thereof. Should IAMSA fail fully to discharge any such encumbrances or leins within thirty (30) days after the date the same appears or record or fail to provide a bond acceptable to COMPANY in case of litigation, COMPANY its option, may pay all or any part thereof. If COMPANY pays any such lien or encumbrances or any part thereof, IAMSA shall, on demand, immediately pay COMPANY the amount so paid, together with interest at the rate of 30 percent (30%) per annum form the date of payment.
4. As stated in this Lease Agreement, COMPANY, at its expense, shall have active all the time (immediately after guaranties expire), a maintenance policy, for the all the equipment provided by IAMSA such as air conditioning units and restrooms extractors; COMPANY shall deliver to IAMSA a copy of the existing maintenance policies, within twenty (20) days following the date of signature of this agreement.
5. IAMSA guarantees that all plumbing, sewage and other utility facilities that are within the Leased property and all the items referred on the above paragraph are duly working at the time the COMPANY moves in.
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X. UTILITY SERVICES
During the term of this Lease Agreement, COMPANY shall promptly pay for any and all public and other utilities services furnished to the Leased Property, including but not limited to, water, gas, electricity, telephone and trash pick up charges, and hook-up services. IAMSA will assist COMPANY in obtaining all such utility services if such becomes necessary. All contracts necessary for the installation of any services to the leased property such as water, drainage and telephone hook up fees if any, as well as any KVA installation fees by the Mexican Federal Electric Commission and the electricity hook up fees usage charged will be totally paid by COMPANY.
XI. RIGHT-OF-WAY.
IAMSA is hereby granted a right-of-way upon, across, and under the Leased Property for ingress, egress, installations, replacing, repairing and maintaining all utilities, including but not limited to water, gas, telephone, all electricity and any television or radio antenna system serving the Leased Property. By virtue of this right-of-way it shall be expressly permissible for the electrical and/or telephone companies to erect and maintain the necessary poles and other necessary equipment on the Leased Property; provided, that in exercising any right IAMSA may have under Clause XI, IAMSA agrees to cause only a minimum interference with COMPANY’s use and possession by COMPANY of the Leased Property.
XII. ASSIGNMENT AND SUBLETTING.
A. COMPANY shall have the right, upon prior written authorization from IAMSA, to assign or transfer or sublease this Lease Agreement or any interest therein or to permit the use of the Leased Property to any person or company, provided however that in the event of any such assignment, transfer or sublease, COMPANY shall remain liable for all its obligations under this Lease Agreement. It is expressly agreed by the parties, that taking into account that the guaranty letter herein attached is duly signed by MASIMO Corporation, a Delaware Corporation, the above mentioned written authorization form IAMSA to assign to transfer or sublease this lease agreement, will not be necessary whenever the assignee or transferee is a company controlled or subsidiary or pertaining to the same business group of MASIMO Corporation. In this event, the assign, transfer or sublease of this lease agreement will produce no extra charge, and shall be done under the same covenants herein agreed.
B. IAMSA shall have the right to assign and reassign, from time to time, any or all of the rights and obligations of IAMSA in this Lease Agreement or any interest therein, without COMPANY’s consent, provided that no such assignment or reassignment shall impair any of the rights of COMPANY herein, and provided further, that IAMSA shall remain liable for all of its obligations under this Lease Agreement, asserting directly against such assignee any defense, setoff, or counterclaims which COMPANY may have against IAMSA or any other person. However, COMPANY hereby specifically waives, with respect to withholding of rent, any preventive measures intended to guarantee payment of such claim, as provided by the Code of Civil Procedures.
XIII. SUBORDINATION.
During the term of this Lease Agreement, IAMSA shall have the right to encumber its interest in the Leased Property or in this Lease Agreement for any purpose it deems convenient and COMPANY shall and hereby does subordinate its interest in this Lease Agreement and in the Leased Property to such encumbrances. However, in the event such encumbrances are foreclosed upon or judicially enforced, the one who holds the encumbrance shall agree to respect this Lease Agreement and accept the performance by COMPANY of its obligation hereunder. COMPANY shall execute any agreement which may be required by IAMSA in regard with such subordination and submit whatever public finance data may reasonable be requested by any trust insurance company, bank or other recognized lending institution.
Once IAMSA notifies COMPANY in writing that the former has assigned its interest in this Lease Agreement to any lending institution as security for a debt or other obligation of IAMSA, IAMSA shall not have the power to amend this Lease Agreement so as to reduce the rent, decrease the term or modify or negate any substantial obligation of COMPANY in the terms hereof, or agree to rescind this Lease Agreement without the written consent of such lending institution. Such obligation shall continue until the lending institution has notified COMPANY in writing that such assignment has been terminated, in the understanding that if IAMSA fails to obtain such lending institution’s approval to carry out the foregoing, the amendment of the terms above mentioned shall have no effect whatsoever as against such lending institution. In addition, if the lending, institution shall notify COMPANY in writing requiring the payment of rents hereunder directly to such lending institution or its representative, then COMPANY shall be obligated to pay such lending institution or its representative each subsequent rental coming due under this Lease Agreement (together with any unpaid rent then past due), until the date on which such lending institution notifies COMPANY authorizing payment of rent to IAMSA or other party entitled thereto. COMPANY understands and agrees that except for the advanced security deposit provided for in the Miscellaneous Section hereunder, at the request of IAMSA, shall provide a statement that no advanced
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payment has been made; such document shall be binding upon COMPANY as against the lending institution to which this Lease Agreement may be assigned. In addition, the lending institution shall not be bound to recognize those payments made to IAMSA after the COMPANY has received notice requiring payments to be made to such lending institutions.
XIV. ACCESS TO LEASED PROPERTY.
Without undue interference to COMPANY’s operation, IAMSA or its authorized representatives shall have the right to enter the Leased Property during all COMPANY business hours, and in emergencies at all times, to inspect the Leased Property and to make repairs, additions or alterations to the Leased Property. For a period commencing ninety (90) days prior to the termination of this Lease Agreement, IAMSA shall have access to the Leased Property for the purpose of exhibiting it to prospective tenants and may post usual “For Sale” or “For Lease” signs upon the Leased Property and COMPANY shall have the right to accompany any representatives of IAMSA and prospective tenants.
XV. DAMAGE OR DESTRUCTION.
A.- Total. In the event that the whole or a substantial part of the Leased Property is damaged or destroyed by fire, act of nature, or any other cause, so as to make COMPANY unable to continue the operation of its business, IAMSA shall, within fifteen (15) days from such destruction, determine whether the Leased Property can be restored within six (6) months. If IAMSA determines that the Leased Property cannot be restored within six (6) months, either IAMSA or COMPANY shall have the right and option to immediately terminate this Lease Agreement, by advising the other thereof by written notice. If IAMSA determine that the Leased Property can be restored within said six (6) months, IAMSA shall proceed diligently to reconstruct the Leased Property, in that event the IAMSA will accept in lieu of the rent during this period the rental insurance or bond acquire by the COMPANY. During the period of reconstruction the LESSEE will not be oblige to pay the rent. In the event that the Leased Property could not be reconstructed in six months how it was determine by IAMSA, IAMSA will have a cure period of thirty days to finish the construction of the Improvements of the IAMSA, beginning the last day of the six months. Fail to deliver the Improvements by the IAMSA in the last day of the cure period of thirty days, the COMPANY, will have the right to conclude this Lessee Agreement, by written notice given to the other party or to accept one day of free rent for each day of delay of the delivery of the Leased Property at the end of the sixth month. The right to conclude this Agreement by the COMPANY, will be subject to the payment of the Improvements constructed by the IAMSA in accordance to the Insurance that the COMPANY is oblige to acquire. In the event of total damage occurs, and a reconstruction period take place, IAMSA will put its best efforts to re-locate COMPANY to another IAMSA property as it may be available, only for the reconstruction period, and in order to help COMPANY with its continuing operations at no charge for comparable space during 6 month reconstruction.
B.- Partial. In the event the said damages caused to the Leased Property does not prevent COMPANY from continuing the normal operation of its business on the Leased Property, IAMSA and COMPANY shall repair said damage, each party reconstructing that portion of the improvements for which it was responsible in the original construction; provided that during the period required for such repair work of IAMSA’s Improvements, the rent payable hereunder by COMPANY shall be equitably prorated for the interference with COMPANY’S use and possession of the Leased Property caused by such damage and repairs. In that event the IAMSA will accept in lieu of any prorated payment of the rent hereunder, during the period when the COMPANY is partially deprive of the use and possession of the Leased Property, any payment of the rent insurance or bond that could be cover according to the insurance aforementioned.
XVI. LIMITATION OF LIABILITY.
Except for intentional or negligent acts or omissions of IAMSA, its agents or employees, IAMSA shall not be liable to COMPANY or to any other person whatsoever for any loss or damage of any kind or nature caused by the intentional or negligent acts or omissions of COMPANY or other occupants of the Industrial Park or of adjacent property, or the public, and other causes beyond the control of IAMSA, including but not limited to any, failure to furnish or any interruption of any utility or other services in or about the Leased Property. COMPANY recognizes that additions, replacements and repairs to the Industrial Park will be made from time to time, provided that the same shall not substantially interfere with COMPANY’s use and enjoyment of the Leased Property.
XVII. INDEMNIFICATION.
COMPANY agrees to indemnify and save IAMSA harmless from any injury or damage, or lawsuit of any kind or nature whatsoever, arising from any negligent acts or omissions of COMPANY, or its contractors, licensees, agents, invitees or employees, or arising from any accident, injury or damage whatsoever caused to any person or property occurring in or about the Leased Property, or the areas adjoining the Leased Property, and from and against all costs and expenses, including attorney’s fees, incurred thereby.
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IAMSA indemnifies and holds COMPANY harmless from any injury or damage to COMPANY or its agents or employees, and from any and all liability for injury to third persons, or damage to the property by third persons while lawfully upon the Leased Property, occurring by reason of any negligent acts or omissions of IAMSA, its agents or employees, and from and against all costs, and expenses, including attorney’s fees, incurred thereby.
XVIII. NOTICES.
All notices under this Lease Agreement shall be forwarded to the addresses of the parties mentioned in the Recitals above or such other address as may from time to time be furnished by the parties hereto. Said notices shall be in writing and shall be deemed given fourteen (14) days after the date sent by mail, or personal delivery if applicable. Duplicate notices shall be sent by certified airmail, postage prepaid, to such additional addresses as may from time to time be requested in writing by the parties hereto.
XIX. COMPANY’s DEFAULT.
A. Each of the following shall be a default of COMPANY:
1. Vacating or abandonment of the Leased Property. IAMSA shall consider the building abandoned when COMPANY closes its operation, terminates all employees and stops making payment of rent for one or more months. Under such circumstances IAMSA may proceed to take over the building after notifying COMPANY under the terms hereunder provided, and no answer is received for a period of fifteen (15) days following such notice. For such purpose, IAMSA is hereby expressly authorized by COMPANY to request the competent Court under a voluntary jurisdiction procedure to be given possession of the building using any legal means provided by Law, and expressly waiving COMPANY the right to be notified due to prior notice of abandonment. This procedure shall be observed independently of any other remedies of IAMSA as provided hereunder. Consequently COMPANY hereby expressly consents and submits to such action, waiving expressly any action to file any claim against IAMSA and/or its representatives for any such taking over.
2. Failure to pay any installment of rent due and payable hereunder upon the date when said payment is due, as provided for in clause “V”, paragraph “A” hereunder, following fourteen days after COMPANY receives written notice.
3. Default in the performance of any covenant, agreement or obligation hereunder, said default, except for default in the payment of rents, continuing for fifteen (15) days after written notice thereof is given by IAMSA to COMPANY (or for any reasonable period necessary for COMPANY to cure said default given by IAMSA);
4. A general assignment by COMPANY for the benefit of creditors;
5. The filing of a voluntary petition in bankruptcy by COMPANY or the filing of an involuntary petition by COMPANY’s creditors, said petition remaining undischarged for a period of ninety (90) days;
6. The appointment of a Receiver to take possession of substantially all of COMPANY’s assets or of the Lease Property, said receivership remaining undissolved or unstayed for a period of thirty (30) days; or
7. Failure by COMPANY to comply with any and all applicable laws and regulations of any Environmental Agency of the Government of Mexico, in connection with the use or operation of any equipment by COMPANY that may be considered as contaminating by such Governmental Office, and failure to comply with any and all recommendations so given by said Governmental Office in connection therewith.
B. Upon the occurrence of any of the foregoing defaults, IAMSA shall have the right, at its option, and in addition to other rights or remedies granted by law, including the right to claim damage, to immediately rescind this Lease Agreement and evict COMPANY from the Leased Property, independently of the right granted under paragraph A-l) of this Clause.
XX. RIGHT TO CURE DEFAULTS.
In the event of COMPANY’s breach of any term or provision herein, (except payment of rents and maintenance fee) IAMSA may, without any obligation to do so, at any time after ten (10) days written notice, cure such breach or default or make repairs to the Leased Property, for the account and at the expense of COMPANY. If IAMSA, by reason of such breach or default, pays any money or is compelled to incur any expense including attorney’s fees, the sums so paid or incurred with all interest, cost and damages, shall be paid by COMPANY to IAMSA on the first day of the month after such expenses are incurred.
If any installment of rent or any other payment is not paid promptly when due, it shall bear interest of five percent (5%) percent per month from the date on which it becomes delinquent until paid in full. This provision is not intended to release COMPANY from any defaults in the making of any payment at the time and in the manner herein specified. The
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foregoing interest, expenses and damages shall be recoverable from COMPANY by exercise of IAMSA’s right to recover damages under this Clause XX. Nothing in this Clause XX affects the right of IAMSA to indemnification by COMPANY in accordance with Clause XVII above, for liability arising prior to the termination of this Lease for personal injuries or property damage.
XXI. WAIVER.
In the event IAMSA or COMPANY does not compel the other to comply with any of the obligations hereunder, such action or omission shall not be construed as a waiver of a subsequent breach of the same or any other provision. Any consent or approval shall not be deemed to waive or render unnecessary the consent or approval of any subsequent or similar act by COMPANY or IAMSA.
XXII. CERTIFICATES.
Within ten (10) days of receipt of a written request made by IAMSA, COMPANY shall deliver to IAMSA a statement in writing certifying that this Lease Agreement is unmodified and in full force and effect (or if there have been modifications, that the same are in full force and effect as modified); the dates to which the rent and any other charges have been paid in advance; and that IAMSA’s Improvements have been satisfactorily completed. It is intended that any such statement may be relied upon by any person, prospective purchaser or lending institution interested in the Leased Property.
XXIII. HOLDING OVER.
If COMPANY should remain in possession of the Leased Property, due to COMPANY’s omission or negligence, after the expiration of this agreement, COMPANY shall pay IAMSA a conventional monthly penalty equal to one hundred and twenty percent (120%) of the amount of the monthly rent, as of the expiration date of the Lease Agreement until COMPANY has delivered to IAMSA possession of the Leased property or executed a new Lease Agreement. This provision shall not be construed as granting any right to COMPANY to remain in possession of the Leased Property after the expiration of the Lease Term. COMPANY shall indemnify IAMSA against any loss or liability resulting from the delay by COMPANY in surrendering the Leased Property, at the expiration of this Lease Agreement, waving any right granted by law.
XXIV. SURRENDER.
On the last day of the term of this Lease Agreement, or the sooner termination thereof pursuant to other provisions hereof, COMPANY shall quit and surrender the Leased Property, broom clean, in good condition together with all alterations, additions and improvements that may have been made to the same, except furniture, machinery and equipment owned by COMPANY. Upon the termination of this Lease Agreement, COMPANY, unless it is in default hereunder, shall immediately remove all of its property, and all property not removed shall be deemed abandoned by COMPANY. At all times COMPANY shall immediately repair any and all damage caused to the Leased Property by the removal of COMPANY’s property.
XXV. QUIET ENJOYMENT.
IAMSA agrees that COMPANY, upon paying the rent and all other charges provided for herein and upon complying with all of the terms and provisions of the Lease Agreement, shall lawfully and quietly occupy and enjoy the Leased Property during the Lease Term.
XXVI. MISCELLANEOUS.
A. This document contains all of the agreements and conditions made between the parties, and may not be modified orally or in any matter other than by a written agreement signed by the authorized representatives of the parties.
B. If any term, covenant, condition or provision of this Lease, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction, to be invalid, void or unenforceable, the remaining terms, covenants, conditions or provisions of this Lease or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
C. In the event that either party should bring an action against the other party for the possession of the Leased Property, or for the recovery of any sum due hereunder, or because of the breach of default of any covenant in this Lease Agreement, the prevailing party shall have the right to collect from the other party its relevant costs and expenses, including attorney’s fees.
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D. Every payment and obligation required by this Lease Agreement, shall be paid and performed on the date specified for such payment or performance and no delay or extension thereof shall be permitted.
E. The titles and subtitles to the Clauses of this document shall have no effect on the interpretation of the terms and provisions contained in this Lease Agreement.
F. Advanced Payment. IAMSA hereby acknowledges having received from COMPANY the amount of $[…***…] as a three month security deposit currency of the United States of America for first month rent. Deposit will not be applied to the last month’s rent and will be returned in full after COMPANY has no payments due at the end of the lease contract.
G. The parties agree that this Lease Agreement shall be governed by the Laws of the State of Baja California. For everything pertaining to the interpretation and compliance of this Lease Agreement, the parties thereby expressly submit to the jurisdiction of the Civil Courts of the City of Mexicali, Baja California, expressly waiving any other jurisdiction which might be applicable by reason of their present or future domiciles or otherwise.
H. Whenever the prior consent of either party, written or otherwise, is required as a condition for the execution of any act by the other party, such party agrees not arbitrarily to withhold such consent.
I. Each party shall execute such further documents as shall be requested by the other party, but only to the extent that the execution of said documents is to give legal effect to the rights set forth in this Lease Agreement.
J. Submission of this instrument for examination or signature by COMPANY does not constitute a reservation of or option to lease, and it is not effective as a Lease Agreement until execution and delivery by both IAMSA and COMPANY.
K. This Lease and each of its covenants and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors or assignees, subject to the provisions hereof. Whenever in this Lease a reference is made to IAMSA, such reference shall be deemed to refer to the person in whom the interest of the lessor hereunder shall be vested. Any successor or assignee of COMPANY who accepts an assignment of the benefit of this Lease and enters into possession of enjoyment hereunder, shall thereby assume and agree to perform and be bound by the covenants and conditions hereof.
L. This Agreement and each and all of its stipulations as drafted, are for the sole and exclusive use by IAMSA with its lessees. Its contents shall not be disclosed to or used by other parties, for any other purpose whatsoever.
M. All Exhibits mentioned hereunder shall be signed by all parties involved, and shall be enforceable together with Lease Agreement.
O. This Lease Agreement shall be executed in both English and Spanish, and that in case of any controversy arises, the Spanish version will prevail over the English one.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement in the City of Mexicali, State of Baja California, Mexico, on the day of March, year two thousand and three.
| INDUSTRIAS ASOCIADAS MAQUILADORAS, S. A. DE C. V. |
INDUSTRIAL VALLERA DE MEXICALI, S.A. DE C.V. | |
| Ing. Jaime Roberts | Ing. Sergio Tagliapietra Nassri | |
| Legal Representative | Legal Representative | |
* Confidential Treatment Requested
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WITNESSES:
| /s/ Eugenio L. |
/s/ S. Z. | |
| /s/ Gary L. Waite |
||
| Masimo VP of Manufacturing | ||
| 14 April 2003 | ||
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 |
Km 105 Carr San Luis R C Mexicali, B.C., Mexico C.P 21394 Tel. (686) 561-6619 Fax (686) 561-6312 01-800-025-4973 |
U.S. Mailing Address: PO Box 3159 Calex.co CA 92231 Ph 1-877-228-4368
|
EXHIBIT C
NEW 15,500 SQ. FT. EXPANSION MODULE IMPROVEMENTS INCLUDE:
OFFICE AREA:
| • | Lighting |
| • | A/C Unit |
| • | Vinyl tile floors |
| • | Drop ceiling |
| • | Restrooms |
PRODUCTION AREA:
| • | Restrooms |
| • | 3 new independent 25 ton A/C units with installations |
| • | 300 KVA electrical substation w/transformer |
| • | Lighting |
BUILDING FEATURES
| • | Two loading docks and one level access in production area |
| • | R-19 roof insulation in all of module |
| • | Sealed floor with Ashford sealer |
C-1
LEASE AMENDMENT
THIS AMENDMENT to Lease Agreement (“Amendment”) is entered into as of December 16, 2006, by and between INDUSTRIAS ASOCIADAS MAQUILADORAS S.A. DE C.V., hereinafter referred to as “LESSOR”, represented by Mr. Jose Luis Faus Sotelo, and INDUSTRIAL VALLERA DE MEXICALI S.A DE C.V., hereinafter referred to as “LESSEE”, represented by its legal representative, Mr. Sergio Tagliapietra Nassri, pursuant to the following recitals and clauses:
RECITALS:
Both parties declare:
| I. | That LESSOR and the LESSEE have entered into a Lease Agreement dated on April 14, 2003 (hereinafter referred as the “Lease Agreement), whereby LESSOR leased a portion of an existing building to LESSE, located in lot number 5, block number 3 & lot number 6 block East, identified as portion of the warehouse of the “Scottsdale” building module 3 with a total area of 15,500 square feet, hereinafter referred to as “Leased Property”; |
| II. |
That on the Clause IV of such agreement, identified as “Lease Term and Commencement Date”, both parties agreed in an original 5 (five) years lease term, binding for the parties; according to this, such term started on last July 1st, 2003 and shall end in June 30th of 2008; |
| III. | That it is their intention to execute this Modificatory Agreement to amend the Lease Agreement described in the last paragraph, pursuant to the terms and conditions set forth below, according to the intention of the parties of considering an early termination option of the Lease Agreement. A true and correct copy of the Lease Agreement is attached hereto as Exhibit “A”. |
| IV. | That the powers of attorney under which they represented LESSOR and LESSEE are still in effect, and that such have not been revoked or limited in any manner, and consequently they mutually acknowledge their capacity for all legal purposes; |
Pursuant to the above the parties agree as follows:
CLAUSES:
FIRST: LESSOR and LESSEE expressly agree to amend and modify clause IV of the “Lease Agreement” identified as “Lease Term and Commencement Date”, to add a final paragraph as follows:
“....E.- Early Termination of Lease Agreement. In the event that LESSOR and LESSEE enter into a new lease for additional premises in any LESSOR development (the “Additional Premises”), LESSEE shall have the right to terminate this Lease Agreement upon the delivery of written notice to LESSOR. LESSEE’s termination right under this paragraph may be exercised at any time after LESSEE’s commencement of beneficial occupancy of the Additional Premises and shall be effective upon delivery to LESSOR, at which time this Lease Agreement shall terminate.”
SECOND: All other terms and conditions of the Lease Agreement, including the Rent terms, the date of commencement, guaranty and all stipulations contained therein will remain and continue in full force and effect as contained in the Lease Amendment, as the same is modified by this Amendment. Accordingly, except as expressly amended by this Amendment, the Lease Agreement shall remain unmodified and in full force and effect.
THIRD: This document contains the only amendment made to the Lease Agreement, and forms part of the same as one whole document; both contain the conditions and promises made between the parties, and may not be modified orally or in any manner other than by a written agreement signed by the authorized representatives of the parties.
FOURTH: As provided for in the Lease Agreement, the parties hereunder agree that with respect to all matters related to the interpretation and compliance of this Amendment and the Lease Agreement, the parties expressly submit to the jurisdiction of the Civil Courts of the City of Mexicali, State of Baja California, expressly waiving any other jurisdiction which might be applicable by reason of their present or future domiciles or otherwise.
IN WITNESS WHEREOF this document is signed in duplicate in this City of Mexicali, Baja California, on this 16TH day of December of the year two thousand and six.
| INDUSTRIAS ASOCIADAS MAQUILADORAS S.A. DE C.V. |
INDUSTRIAL VALLERA DE MEXICALI S.A. DE C.V. | |
| Legal Representative |
Legal Representative | |
| GUARANTOR: Masimo Corporation |
||||
| /s/ Gary Waite |
19 Dec. 2006 | |||
| Gary Waite | ||||
| Vice President of Manufacturing | ||||
WITNESSES:
| /s/ EUGENIO LAGARDE |
| This ‘S-1’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 4/17/07 | None on these Dates | ||
| 12/16/06 | ||||
| 7/1/03 | ||||
| 4/14/03 | ||||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/28/24 Masimo Corp. 10-K 12/30/23 144:57M 5/01/23 Masimo Corp. 10-K/A 12/31/22 13:3M 3/01/23 Masimo Corp. 10-K 12/31/22 143:76M 11/09/22 Masimo Corp. 10-Q 10/01/22 119:13M 8/10/22 Masimo Corp. 10-Q 7/02/22 123:15M 5/03/22 Masimo Corp. 10-Q 4/02/22 99:10M 2/16/22 Masimo Corp. 10-K 1/01/22 118:77M 10/26/21 Masimo Corp. 10-Q 10/02/21 96:9.8M 7/27/21 Masimo Corp. 10-Q 7/03/21 98:9.7M 4/27/21 Masimo Corp. 10-Q 4/03/21 97:8.8M 2/23/21 Masimo Corp. 10-K 1/02/21 119:66M 10/27/20 Masimo Corp. 10-Q 9/26/20 101:11M |