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Masimo Corp – ‘S-1’ on 4/17/07 – EX-10.10

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:   

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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

Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

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                                        


EX-10.10   —   Manufacturing and Purchase Agreement, Dated 08/19/2005


This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  Manufacturing and Purchase Agreement, dated 08/19/2005  

Exhibit 10.10

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

MANUFACTURING AND PURCHASE AGREEMENT

This manufacturing and purchase agreement (“Agreement”), dated for identification purposes August 19, 2005, is by and among Masimo Corporation (“Masimo”), and […***...].

WHEREAS, “Product(s)” is defined as Red LED die (Masimo part number 10158) and IR LED die (Masimo part number 10159); and

WHEREAS, […***...] is willing to supply MASIMO’s Product; and

WHEREAS, Masimo is willing to purchase from […***...] manufactured and tested Product;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:

 

1. Agreement Terms: This Agreement shall become effective on the date first set forth above and shall remain in effect until December 31, 2006, unless terminated earlier for cause. MASIMO may extend the term of the contract under mutual agreement.

 

2. Pricing: […***...] agrees to sell to Masimo Products at the price specified in the subsequent Attachment #1.

 

3. Purchase Order: The purchase and sale of Products between the Parties shall be made by means of Purchase orders placed by MASIMO to […***...] (“PO”) during the term of this Agreement in accordance with the provisions hereof. PO’s and change orders may be placed by facsimile or email. […***...] will confirm PO deliveries to MASIMO within five (5) working days after receipt. Confirmation of deliveries and acceptance may be by facsimile or email. All PO’s for products submitted by MASIMO shall state the following: (I) price in U.S. dollars, (II) quantities ordered, (III) the delivery dates, (IV) destination, and (V) requested method of shipment, in accordance with the terms and conditions hereof. Purchase Order No. 517911 and 520587 referencing this Agreement shall be deemed submitted to […***...] upon full execution of this Agreement for the first year (2004). The quantities and dates stated on the PO are based upon expected volumes through December 31, 2004, and are for planning purposes only. Quantities and delivery dates of Product will be determined via rolling demand forecasts as specified in Section 4 below.

 

4.

Delivery: Masimo will provide a minimum six-month rolling demand forecast upon execution of this Agreement. Masimo will update this rolling demand forecast on a monthly basis, each time for a minimum six-month period. […***...] agrees to produce and deliver and Masimo agrees to purchase Product on the date and in the quantities specified in these forecasts subject to the following quantity variations: 0% within 60 days of the forecasted delivery date; up to +20%, no reduction in quantity allowed, within 90 days of the forecasted delivery date; +/-30% within 120 days of the forecasted delivery date. Forecasts for greater

 

* Confidential Treatment Requested

- 1 -


 

than 120 days are for planning purposes only and may vary by amount. Masimo is not liable for raw materials or components purchased outside the 120 day window. […***...] to invoice Masimo for Product upon shipment. Invoice terms will be net 45 days, FOB origin.

 

5. Safety Stock: […***...] agrees to hold available for Sale one (1) month of Product requirements in […***...] in Japan. This Product will be sold to MASIMO; rotated monthly and shall be of a lot code no older than 120 days.

 

6. Transportation: The method of transportation and carrier selected shall be as specified by MASIMO in its PO. Unless otherwise agreed, after shipping of the products from […***...], title and risk of loss shall pass to MASIMO and all transportation charges, including insurance, shall be paid by MASIMO.

 

7. Packaging: The method of packaging shall be specified by MASIMO in the Purchase Specification or PO. The cost of packaging is included in the price specified in PO. Each shipment shall include a packing list containing: (I) PO number, (II) model/part number of the product, (III) quantity, (IV) serial number or date, lot code of shipped products, and (V) as well as the results of applicable quality assurance, certificate of conformance and other tests performed with respect to the Products being shipped.

 

8. Force Majeure: Should delivery of the Product or any obligations of either party (except for timely payment) be delayed by events beyond the affected party’s control, including, but not limited to strikes, natural disasters, government actions, time for performance shall be extended by the period of the delay.

 

9. Change Orders: Masimo will issue written Document Release Orders (DRO) in a timely manner. […***...] will use its best effort to review and implement all DROs on the date requested. Masimo will accept charges for any rework for products in work in process or manufactured within 120 days of the rolling forecast and assume the responsibility for any materials or product currently in process if required by a DRO. Masimo further assumes responsibility for raw materials obsolete by a DRO within the 120 days of the forecast, provided […***...] has made a best effort to reuse materials.

 

10. Termination: Masimo has the unconditional right to terminate this purchase agreement upon 120 days written notice to […***...]. This Agreement also may be terminated for cause by either party in the event the other party: (i) ceases to function, or (ii) fails to perform any of its obligations hereunder and fails to cure such failure within thirty (30) days written notice to the other party.

 

11.

Inspection: […***...] agrees to supply Masimo with the results of any final inspections and/or summary test data performed by […***...] with each shipment of product along with a Certificate of Conformance. Masimo reserves the right to conduct an inspection of […***...] facility within fourteen (14) working days notice at a mutually agreed upon time during normal business hours to inspect and review the work including any product in process, raw material management, adherence to quality control procedures and good manufacturing practices. Masimo reserves the right to conduct source inspection of any lot of product as well as conduct first article inspection of initial production. Masimo will inspect and disposition product within thirty (30) working days after receipt. […***...] agrees to promptly issue a Return Goods Authorization and has the right to conduct its own review of the return product.

 

* Confidential Treatment Requested

- 2 -


 

All disputes will be resolved prior to further production. Masimo may reject an entire lot for failure if based upon statistical sampling plan.

 

12. Current FDA Requirements: […***...] agrees to maintain key component traceability and document its manufacturing records on all production lots for Masimo in accordance with Good Manufacturing Practices as established by the Food & Drug Administration.

 

13. Confidentiality: Covered by signed Non Disclosure Agreement dated November 12, 1999.

 

14. Assignment: Neither party shall assign this Agreement and the NDA signed by Gary Waite, VP Manufacturing and […***...], General Manager , or any rights or obligations hereunder, except in conjunction with the transfer of substantially all of a party’s assets to which this agreement relates, without the prior written consent of the other. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the respective parties hereto and their personal representatives, successors and assigns.

 

15. Governing Law: This Agreement shall be governed and construed in accordance with the laws of the State of California. Each party agrees to perform its obligations hereunder in accordance with all applicable laws and rules and regulations now or hereafter in effect.

 

16. Venue: If any dispute or differences shall arise between the parties concerning the construction of this Agreement or the rights or obligations of either Party, the Parties shall strive to settle the same amicably, but if they are unable to do so within ninety (90) days after such dispute or difference has arisen, then any suit filed by either Party shall be filed in Orange County, California.

 

17. Entire Agreement: This Agreement and signed NDA constitute the entire agreement between Masimo, and […***...] for the manufacture and purchase of Products. There are no other understandings, agreements, representations, express or implied, written or oral, not specified herein. This Agreement may only be amended in writing signed by authorized representatives of Masimo and […***...].

 

18. Authority: Each party represents that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of it has been properly authorized and empowered to enter into this Agreement

 

19. Ownership: MASIMO shall own all MASIMO Specification sheets associated with the manufacturing and development of the Product. MASIMO will issue asset tags for all MASIMO owned equipment and tooling to be held at […***...]. At any time that MASIMO requests MASIMO owned equipment, […***...] shall deliver to MASIMO any and all equipment, F.O.B. destination.

 

  19.1 Tooling Use: […***...] agrees that it will not use any of the tooling specifically developed for MASIMO to manufacture any components or products for any other pulse oximetery application for anyone other than MASIMO.

 

20.

Patent and Copyright License: On the delivery of the prototypes or production units, if […***...] owns any technology relating to any patented inventions or copyrights to be used in the Products or any Improvement in the Products, it shall grant to MASIMO a nontransferable, non-exclusive and royalty-free license to use such technology to manufacture, have

 

* Confidential Treatment Requested

- 3 -


 

manufactured, use and sell the Products in any country of the world, subject to restrictions and limitations set forth herein under any patents (including models and design patents) and copyrights, and protection of other intellectual property rights and their applications owned by […***...] as of the effective date of this agreement, for the lives of such patents and copyrights.

 

21. Insurance: At all times during the term of this Agreement each Party shall carry and maintain such insurance against risks from actions contemplated under this Agreement as it reasonably believes to be necessary and economical. Such insurance shall be with issuers of recognized responsibility and may be carried under blanket policies maintained by such party. Each Party shall, to the extent reasonably possible, include the other Party as an additional named insured on such insurance policies.

 

22. Miscellaneous:

 

  22.1 Failure to Enforce. The failure of either Party to enforce at any time over any period of time the provisions of this Agreement shall not be construed to be a waiver of such provisions or of the right of such Party to enforce each and every such provision.

 

  22.2 Severability. In the event that any of the provision of this Agreement shall be held to be unenforceable, the remaining portions of this Agreement shall remain in full force and effect.

 

  22.3 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed received (i) when delivered personally; (ii) when sent by confirmed facsimile; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier. All communications will be sent to the addresses set forth below or to such other address as may be designated by a party by giving written notice to the other party pursuant to his section:

 

MASIMO:

   Masimo Corporation,

Attention:

  

Chris Kilpatrick

40 Parker

Irvine, CA 92618

Phone: 949-297-7000

Fax: 949-297-7299

 

[…***...]

 

  22.4

Attorneys’ Fees. If either Party to this Agreement shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Agreement, the losing Party shall pay to the prevailing Party a reasonable sum for attorney fees incurred in bringing such suit and/or enforcing any judgment granted therein, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or

 

* Confidential Treatment Requested

- 4 -


 

order entered in such actions shall contain a specified provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment. For the purpose of this section, attorney fees shall include without limitation, fees incurred in the following: (1) post-judgment motions; (2) contempt proceedings; (3) garnishment, levy and debtor and third party examinations; (4) discovery; and (5) bankruptcy litigation.

 

Masimo Corporation    

[…***...]

By:   /s/ Yongsam Lee    

By:

  /s/ [...***...]
Name:   Yongsam Lee    

Name:

  [...***...]
Title:   Exec. VP, OPs    

Title:

  General Manager
Date:   April 4, 2006    

Date:

  April 6, 2006

 

* Confidential Treatment Requested

- 5 -


Attachment #1

Pricing Agreement

Based on quote dated December 11, 2003

Attachment #1, Dated December 11, 2003 for identification purposes

[…***...]

 

Masimo Corporation    

[…***...]

By:   /s/ Yongsam Lee    

By:

  /s/ [...***...]
Name:   Yongsam Lee    

Name:

  [...***...]
Title:   Exec. VP, OPs    

Title:

  General Manger
Date:   April 4, 2006    

Date:

  April 6, 2006

 

* Confidential Treatment Requested

A-1


Dates Referenced Herein

This ‘S-1’ Filing    Date    Other Filings
Filed on:4/17/07None on these Dates
12/31/06
4/6/06
4/4/06
8/19/05
12/31/04
12/11/03
11/12/99
 List all Filings 


12 Subsequent Filings that Reference this Filing

  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
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Filing Submission 0001193125-07-082880   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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