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SEC Comment Letter 0000000000-23-007091 to MASIMO CORP (MASI)

MASIMO CORP
Date: July 5, 2023 · CIK: 0000937556 · Accession: 0000000000-23-007091

AI Filing Summary & Sentiment

Sentiment
Urgency
Document Type
Confidence
SEC Posture
Company Posture

Summary

Reasoning

Date
July 5, 2023
Author
Christina Chalk
Form
UPLOAD
Company
MASIMO CORP

Letter

United States securities and exchange commission logo July 5, 2023 Richard Brand Partner Cadwalader, Wickersham & Taft LLP 200 Liberty Street New York, NY 10281 Re:Masimo Corporation Schedule 13D/A filed June 30, 2023 Filed by Quentin Koffey et al. File No. 005-83497 Dear Richard Brand: We have reviewed your filing and have the following comments. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure. Please respond to these comments by providing the requested information or advise us as soon as possible when you will respond. If you do not believe our comments apply to your facts and circumstances, please tell us why in your response. After reviewing your response to these comments, we may have additional comments. Defined terms used herein have the same meaning as in your Schedule 13D. Schedule 13D/A filed June 30, 2023 General 1.We note your response to comment one. Item 3 of Schedule 13D states that “if any part of the purchase price is or will be represented by funds or other consideration borrowed or otherwise obtained for the purpose of acquiring, holding, trading or voting the securities, a description of the transaction and the names of the parties thereto” must be disclosed. Please address whether any part of the purchase price for the Common Stock of Masimo Corp. was provided by any limited partner(s) of the Politan Funds for the specific purpose of acquiring, holding, trading or voting the Common Stock of Masimo Corp. 2.We note your statement that “all prior Swaps regarding Masimo securities were unwound on or before September 23, 2022.” However, your initial Schedule 13D was filed on August 16, 2022, and discloses that “Politan Master Fund has entered into physically settled swaps … referencing 4,096,784 shares of Common Stock in the aggregate that the

FirstName LastNameRichard Brand Comapany NameCadwalader, Wickersham & Taft LLP July 5, 2023 Page 2 FirstName LastName Richard Brand Cadwalader, Wickersham & Taft LLP July 5, 2023 Page 2 Reporting Persons may be deemed to beneficially own.” Accordingly, any written agreements, contracts, arrangements, understanding, plans or proposals referenced in Item 7 of Schedule 13D, including the agreements underlying the Physically Settled Swaps and Cash Settled Swaps described under Item 6 (to the extent they were in existence on August 16, 2022), should have been filed with your initial Schedule 13D. Please advise or revise. 3.It is unclear from your response to comment four whether EnTrust Global Partners LLC or Dennis Washington (or their respective affiliates) are direct beneficial owners of Common Stock. In addition, while you assert that “Courts have long held that passive investors in an investment fund do not become members of a group with the investment advisor to such fund merely by agreeing to be limited partners,” it is unclear whether different facts are present here. Therefore, while we do not necessarily agree with your analysis and conclusions, we have no further comment at this time. We remind you that the filing persons are responsible for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff. Please direct any questions to Christina Chalk at (202) 551-3263 or Blake Grady at (202) 551-8573. Sincerely, Division of Corporation Finance Office of Mergers & Acquisitions

Show Raw Text
United States securities and exchange commission logo
July 5, 2023
Richard Brand
Partner
Cadwalader, Wickersham & Taft LLP
200 Liberty Street
New York, NY 10281
Re:Masimo Corporation
Schedule 13D/A filed June 30, 2023
Filed by Quentin Koffey et al.
File No. 005-83497
Dear Richard Brand:
            We have reviewed your filing and have the following comments. In some of our
comments, we may ask you to provide us with information so we may better understand your
disclosure.
            Please respond to these comments by providing the requested information or advise us as
soon as possible when you will respond. If you do not believe our comments apply to your facts
and circumstances, please tell us why in your response.
            After reviewing your response to these comments, we may have additional comments.
Defined terms used herein have the same meaning as in your Schedule 13D.
Schedule 13D/A filed June 30, 2023
General
1.We note your response to comment one.  Item 3 of Schedule 13D states that “if any part of
the purchase price is or will be represented by funds or other consideration borrowed or
otherwise obtained for the purpose of acquiring, holding, trading or voting the securities, a
description of the transaction and the names of the parties thereto” must be disclosed.
Please address whether any part of the purchase price for the Common Stock of Masimo
Corp. was provided by any limited partner(s) of the Politan Funds for the specific purpose
of acquiring, holding, trading or voting the Common Stock of Masimo Corp.
2.We note your statement that “all prior Swaps regarding Masimo securities were unwound
on or before September 23, 2022.”  However, your initial Schedule 13D was filed on
August 16, 2022, and discloses that “Politan Master Fund has entered into physically
settled swaps … referencing 4,096,784 shares of Common Stock in the aggregate that the

 FirstName LastNameRichard Brand
 Comapany NameCadwalader, Wickersham & Taft LLP
 July 5, 2023 Page 2
 FirstName LastName
Richard Brand
Cadwalader, Wickersham & Taft LLP
July 5, 2023
Page 2
Reporting Persons may be deemed to beneficially own.”  Accordingly, any written
agreements, contracts, arrangements, understanding, plans or proposals referenced in Item
7 of Schedule 13D, including the agreements underlying the Physically Settled Swaps and
Cash Settled Swaps described under Item 6 (to the extent they were in existence on
August 16, 2022), should have been filed with your initial Schedule 13D.  Please advise or
revise.
3.It is unclear from your response to comment four whether EnTrust Global Partners LLC
or Dennis Washington (or their respective affiliates) are direct beneficial owners of
Common Stock.  In addition, while you assert that “Courts have long held that passive
investors in an investment fund do not become members of a group with the investment
advisor to such fund merely by agreeing to be limited partners,” it is unclear whether
different facts are present here.  Therefore, while we do not necessarily agree with your
analysis and conclusions, we have no further comment at this time.
            We remind you that the filing persons are responsible for the accuracy and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of action by the staff.
            Please direct any questions to Christina Chalk at (202) 551-3263 or Blake Grady at (202)
551-8573.
Sincerely,
Division of Corporation Finance
Office of Mergers & Acquisitions