MASIMO CORP (Form: S-1/A, Received: 06/01/2007 17:27:51)

Dated: _____________________________20__________________

Signature(s) Guaranteed: Medallion Guarantee Stamp

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.

Signature:

Signature:

Notice: The signature to this assignment must correspond with the name as written upon the face of the certificate, in every particular, without alteration or enlargement, or any change whatever.

As filed with the Securities and Exchange Commission on June 1, 2007

Registration No. 333-142171

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

AMENDMENT NO. 2

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

MASIMO CORPORATION

(Exact name of registrant as specified in its charter)

DELAWARE

3845

33-0368882

(State or other jurisdiction

of incorporation or organization)

(Primary Standard Industrial
Classification Code Number)

(I.R.S. Employer

Identification Number)

40 Parker

Irvine, California 92618

(949) 297-7000

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Joe E. Kiani

Chief Executive Officer

40 Parker

Irvine, California 92618

(949) 297-7000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

John F. Della Grotta

Michael G. McKinnon

Paul, Hastings, Janofsky & Walker LLP

695 Town Center Drive, Suite 1700

Costa Mesa, CA 92626

Patrick T. Seaver

Charles K. Ruck

Latham & Watkins LLP

650 Town Centre Drive, 20th Floor

Costa Mesa, CA 92626

Approximate date of commencement of proposed sale to the public:

As soon as practicable after the effectiveness of this Registration Statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box: ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective Registration Statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

This Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-142171), as amended by Amendment No. 1 (the “Form S-1”), of Masimo Corporation is being filed solely for the purpose of (a) amending “Part II—Item 15. Recent Sales of Unregistered Securities,” “Part II—Item 16. Exhibits and Financial Statement Schedules” and “Part II—Exhibit List” and (b) filing herewith Exhibit 4.1, Exhibit 10.11, Exhibit 10.15, Exhibit 10.22, Exhibit 10.23, Exhibit 10.24, Exhibit 10.25 and Exhibit 10.34, the omitted portions of which have been filed separately with the Securities and Exchange Commission in connection with the request for confidential treatment of such omitted portions. Other than as set forth above, the remainder of the Form S-1 is unchanged. The Prospectus portion of the Form S-1 is not reproduced in this Amendment No. 2. This Amendment No. 2 speaks as of the filing date of Amendment No. 1 to the Form S-1 and does not reflect events occurring after the filing date of Amendment No. 1 to the Form S-1, or modify or update the disclosures therein in any way other than as required to reflect the amendment set forth below.

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13.

Other Expenses of Issuance and Distribution

The following table sets forth all expenses, other than underwriting discounts and commissions, payable by the Registrant in connection with the sale of the common stock being registered. All the amounts shown are estimates except for the SEC registration fee, the NASD filing fee and the NASDAQ listing fee.


Description	Amount to be paid
SEC registration fee	$	4,605
NASD filing fee		15,500
NASDAQ Stock Market Listing Application fee		100,000
Blue sky qualification fees and expenses		5,000
Printing and engraving expenses		*
Legal fees and expenses		*
Accounting fees and expenses		*
Transfer agent and registrar fees		*
Miscellaneous		*

Total	$

*	To be filed by amendment.

Item 14.

Indemnification of Directors and Officers

The Registrant is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law, or DGCL, provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide for the indemnification of directors and officers of the Registrant to the fullest extent permitted under the DGCL.

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability:

•

for any transaction from which the director derives an improper personal benefit;

•

for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

II-2

•

for improper payment of dividends or redemptions of shares; or

•

for any breach of a director’s duty of loyalty to the corporation or its stockholders.

The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws include such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be paid by the Registrant upon delivery to the Registrant of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Registrant.

As permitted by Delaware law, the Registrant has entered into indemnity agreements with each of its directors and executive officers that require the Registrant to indemnify such persons against any and all expenses (including attorneys’ fees), witness fees, damages, judgments, fines, settlements and other amounts incurred (including expenses of a derivative action) in connection with any action, suit or proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director, an officer or an employee of the Registrant or any of its affiliated enterprises, provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.

At present, there is no pending litigation or proceeding involving a director, officer or key employee of the Registrant as to which indemnification is being sought nor is the Registrant aware of any threatened litigation that may result in claims for indemnification by any officer or director of the Registrant.

The Registrant has an insurance policy covering its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.

Prior to the completion of this offering, the Registrant will enter into an underwriting agreement which provides that the underwriters are obligated, under some circumstances, to indemnify the Registrant’s directors, officers and controlling persons against specified liabilities, including liabilities under the Securities Act.

Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein:


Exhibit Document	Number
Purchase Agreement	1.1	*
Amended and Restated Certificate of Incorporation to be effective upon the closing of the offering	3.2	**
Amended and Restated Bylaws to be effective upon the closing of the offering	3.4	**
Fifth Amended and Restated Registration Rights Agreement	4.2	**

*	To be filed by amendment.

**	Previously filed.

Item 15.

Recent Sales of Unregistered Securities

From January 1, 2004 through April 30, 2007, the Registrant granted stock options to purchase an aggregate of 2,360,530 shares of the Registrant’s common stock (net of expirations and cancellations) to its employees, directors and consultants under its Third Amended and Restated 1996 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan, or 1996 Plan, and 2004 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan, or 2004 Plan. These options have exercise prices ranging from $8.25 to $42.65 per share, with a weighted average exercise price of $18.88 per share. Of these, options to purchase an aggregate of 548,350 shares of common stock have been exercised through April 30, 2007 for aggregate consideration of approximately $5.5 million, at exercise prices ranging from $8.25 to $14.00 per share. The offers, sales and issuances of these securities were deemed to be exempt from registration under the Securities Act in reliance on Rule 701 in that the transactions were under compensatory benefit plans and contracts relating to compensation as provided under Rule 701, and Regulation D promulgated under the Securities Act as transactions by an issuer not involving a public offering. The recipients of such securities were the Registrant’s employees, directors or bona fide consultants and received the securities under the 1996 Plan or 2004 Plan. Appropriate

II-3

legends were affixed to the securities issued in these transactions. Each of the recipients of securities in these transactions had adequate access, through employment, business or other relationships, to information about the Registrant.

Item 16.

Exhibits and Financial Statement Schedules

(a) Exhibits



1.1*		Form of Purchase Agreement

2.1**		Asset Purchase Agreement, dated December 21, 2005, between the Registrant, Masimo Canada ULC and Andromed Inc.

3.1**		Amended and Restated Certificate of Incorporation, as currently in effect

3.2**		Form of Amended and Restated Certificate of Incorporation to be effective upon the closing of the offering

3.3**		Bylaws, as currently in effect

3.4**		Amended and Restated Bylaws to be effective upon the closing of the offering

4.1		Form of Common Stock Certificate

4.2**		Fifth Amended and Restated Registration Rights Agreement made and entered into as of September 14, 1999 between the Registrant and certain of its stockholders

4.3*		Form of Rights Agreement between the Registrant and Computershare Trust Company, N.A., as Rights Agent

4.4*		Form of Certificate of Designation of Series A Junior Participating Preferred Stock

5.1*		Opinion of Paul, Hastings, Janofsky & Walker LLP

10.1**#†		Form of Indemnity Agreement to be entered into between the Registrant and its officers and directors

10.2**#		Employment Agreement, dated April 13, 2007, between Joe E. Kiani and the Registrant

10.3**#		Indefinite Term Employment Contract, dated December 31, 2005, between Olivier Berthon and Masimo Europe, Ltd.

10.4**#		Offer Letter, dated March 31, 1995, between Ammar Al-Ali and the Registrant

10.5**#		Offer Letter, dated February 9, 1996, between Bradley R. Langdale and the Registrant

10.6**#		Offer Letter, dated May 29, 2002, between Chris Kilpatrick and the Registrant

10.7**#		Offer Letter, dated February 15, 1996, between Yongsam Lee and the Registrant

10.8**#		Offer Letter, dated March 30, 2007, between Anand Sampath and the Registrant

10.9**#		Offer Letter, dated June 9, 2006, between Mark P. de Raad and the Registrant

10.10**+		Manufacturing and Purchase Agreement, dated August 19, 2005

10.11+		Shelter Labor Services Agreement, dated December 27, 2000, between Industrial Vallera de Mexicali, S.A. de C.V. and the Registrant

10.12**+		Lease Agreement, effective as of February 1, 2001, between Industrias Asociadas Maquiladoras, S.A. de C.V., Industrial Vallera de Mexicali, S.A. de C.V., and the Registrant, as guarantor, as amended

10.13**+		Lease Agreement, dated April 14, 2003, between Industrias Asociadas Maquiladoras, S.A. de C.V., Industrial Vallera de Mexicali, S.A. de C.V. and the Registrant, as amended

10.14**+		Lease Agreement, dated December 26, 2006, between Industrias Asociadas Maquiladoras, S.A. de C.V., Industrial Vallera de Mexicali, S.A. de C.V. and the Registrant

10.15+		Purchase Agreement, dated July 26, 2001, between Jabil Circuit, Inc. and the Registrant

10.16**		Contribution and Assignment Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.17**		Sales and Distribution Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.18**		Occupancy Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.19**		Management Services Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.20**+		Sublease Agreement, dated January 31, 2004, between Multilayer Technology, Inc. and the Registrant

10.21**+		Standard Industrial/Commercial Multi-Tenant Lease-Net, dated February 8, 2006, between The Northwestern Mutual Life Insurance Company and the Registrant

II-4



10.22+		Pulse Oximetry & Related Products Capital Equipment Supplier Agreement, dated December 16, 2005, between Novation, LLC and the Registrant, as amended

10.23+		Group Purchasing Agreement—Capital Equipment, effective as of March 1, 2006, between Premier Purchasing Partners, L.P. and the Registrant, as amended

10.24+		Supply Agreement, dated February 22, 2002, between Wintek Electro-Optics Corporation and the Registrant

10.25+		Form of Equipment Purchase and Assignment of Proceeds, between the Registrant and Med One Capital Funding LLC

10.26**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and SPO2.com

10.27**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and Masimo Japan Corporation

10.28**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and Masimo Canada ULC

10.29**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and Masimo Europe Limited

10.30**		Settlement Agreement and Release of Claims, dated January 17, 2006, between Masimo Laboratories, Inc., Nellcor Puritan Bennett, Inc., Mallinckrodt, Inc., Tyco Healthcare Group LP, Tyco International Ltd., Tyco International (US) Inc. and the Registrant

10.31**#		Third Amended and Restated 1996 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan of the Registrant, as amended, and forms of agreements related thereto

10.32**#		2004 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan of the Registrant, as amended, and forms of agreements related thereto

10.33**#†		2007 Stock Incentive Plan of the Registrant, and forms of agreements related thereto

10.34+†		Amended and Restated Cross-Licensing Agreement, effective January 1, 2007, between Masimo Laboratories, Inc. and the Registrant

10.35**†		Services Agreement, effective January 1, 2007, between Masimo Laboratories, Inc. and the Registrant

10.36**		ADSP-2136X Sharc ROM Agreement, dated July 19, 2004, between Analog Devices Inc. and the Registrant

10.37*#		Bonus Award Plan

10.38**#		Form of Promissory Note entered into between the Registrant and certain of its officers and directors

10.39**#		Form of Stock Pledge Agreement entered into between the Registrant and certain of its officers and directors

16.1**		Letter from PricewaterhouseCoopers LLP

21.1**		List of Registrant’s subsidiaries

23.1**		Consent of Independent Registered Public Accounting Firm

23.2*		Consent of Paul, Hastings, Janofsky & Walker LLP (included in their opinion filed as Exhibit 5.1)

23.3**		Consent of Frost & Sullivan

24.1**		Power of Attorney (see page II-7 to the Registration Statement on Form S-1 (File No. 333-142171) filed with the SEC on April 17, 2007)

*	To be filed by amendment.

**	Previously filed.

#	Indicates management contract or compensatory plan.

+	Confidential treatment has been requested with respect to certain provisions of this agreement. Omitted portions have been filed separately with the SEC.

†	Subject to the approval of the Registrant’s stockholders.

(b) Financial Statement Schedules

Financial statement schedules are omitted because the information called for is not required or is shown either in the financial statements or the notes thereto.

II-5

Item 17.

Undertakings

The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned registrant hereby undertakes that:

(i) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(ii) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Amendment No. 2 to the Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on the 1 ^st day of June, 2007.


MASIMO CORPORATION

By:		/ S / J OE E. K IANI
		Joe E. Kiani Chief Executive Officer and Chairman of the Board of Directors

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2 to the Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.


SIGNATURE	TITLE(S)	DATE


/s/ J OE E. K IANI Joe E. Kiani	Chairman of the Board & Chief Executive Officer (Principal Executive Officer)	June 1, 2007

/s/ M ARK P. de R AAD Mark P. de Raad	Executive Vice President & Chief Financial Officer (Principal Financial and Accounting Officer)	June 1, 2007

* Steven Barker, M.D., Ph.D.	Director	June 1, 2007

* Edward L. Cahill	Director	June 1, 2007

* Robert Coleman, Ph.D.	Director	June 1, 2007

* Sanford Fitch	Director	June 1, 2007

* Jack Lasersohn	Director	June 1, 2007



*By:		/s/ M ARK P. de R AAD
		Mark P. de Raad Attorney-in-fact

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EXHIBIT LIST



1.1*		Form of Purchase Agreement

2.1**		Asset Purchase Agreement, dated December 21, 2005, between the Registrant, Masimo Canada ULC and Andromed Inc.

3.1**		Amended and Restated Certificate of Incorporation, as currently in effect

3.2**		Form of Amended and Restated Certificate of Incorporation to be effective upon the closing of the offering

3.3**		Bylaws, as currently in effect

3.4**		Amended and Restated Bylaws to be effective upon the closing of the offering

4.1		Form of Common Stock Certificate

4.2**		Fifth Amended and Restated Registration Rights Agreement made and entered into as of September 14, 1999 between the Registrant and certain of its stockholders

4.3*		Form of Rights Agreement between the Registrant and Computershare Trust Company, N.A., as Rights Agent

4.4*		Form of Certificate of Designation of Series A Junior Participating Preferred Stock

5.1*		Opinion of Paul, Hastings, Janofsky & Walker LLP

10.1**#†		Form of Indemnity Agreement to be entered into between the Registrant and its officers and directors

10.2**#		Employment Agreement, dated April 13, 2007, between Joe E. Kiani and the Registrant

10.3**#		Indefinite Term Employment Contract, dated December 31, 2005, between Olivier Berthon and Masimo Europe, Ltd.

10.4**#		Offer Letter, dated March 31, 1995, between Ammar Al-Ali and the Registrant

10.5**#		Offer Letter, dated February 9, 1996, between Bradley R. Langdale and the Registrant

10.6**#		Offer Letter, dated May 29, 2002, between Chris Kilpatrick and the Registrant

10.7**#		Offer Letter, dated February 15, 1996, between Yongsam Lee and the Registrant

10.8**#		Offer Letter, dated March 30, 2007, between Anand Sampath and the Registrant

10.9**#		Offer Letter, dated June 9, 2006, between Mark P. de Raad and the Registrant

10.10**+		Manufacturing and Purchase Agreement, dated August 19, 2005

10.11+		Shelter Labor Services Agreement, dated December 27, 2000, between Industrial Vallera de Mexicali, S.A. de C.V. and the Registrant

10.12**+		Lease Agreement, effective as of February 1, 2001, between Industrias Asociadas Maquiladoras, S.A. de C.V., Industrial Vallera de Mexicali, S.A. de C.V., and the Registrant, as guarantor, as amended

10.13**+		Lease Agreement, dated April 14, 2003, between Industrias Asociadas Maquiladoras, S.A. de C.V., Industrial Vallera de Mexicali, S.A. de C.V. and the Registrant, as amended

10.14**+		Lease Agreement, dated December 26, 2006, between Industrias Asociadas Maquiladoras, S.A. de C.V., Industrial Vallera de Mexicali, S.A. de C.V. and the Registrant

10.15+		Purchase Agreement, dated July 26, 2001, between Jabil Circuit, Inc. and the Registrant

10.16**		Contribution and Assignment Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.17**		Sales and Distribution Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.18**		Occupancy Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.19**		Management Services Agreement, dated January 1, 2005, between Masimo Americas, Inc. and the Registrant

10.20**+		Sublease Agreement, dated January 31, 2004, between Multilayer Technology, Inc. and the Registrant

10.21**+		Standard Industrial/Commercial Multi-Tenant Lease-Net, dated February 8, 2006, between The Northwestern Mutual Life Insurance Company and the Registrant

10.22+		Pulse Oximetry & Related Products Capital Equipment Supplier Agreement, dated December 16, 2005, between Novation, LLC and the Registrant, as amended



10.23+		Group Purchasing Agreement—Capital Equipment, effective as of March 1, 2006, between Premier Purchasing Partners, L.P. and the Registrant, as amended

10.24+		Supply Agreement, dated February 22, 2002, between Wintek Electro-Optics Corporation and the Registrant

10.25+		Form of Equipment Purchase and Assignment of Proceeds, between the Registrant and Med One Capital Funding LLC

10.26**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and SPO2.com

10.27**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and Masimo Japan Corporation

10.28**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and Masimo Canada ULC

10.29**		Intercompany Agreement, dated January 1, 2006, by and between the Registrant and Masimo Europe Limited

10.30**		Settlement Agreement and Release of Claims, dated January 17, 2006, between Masimo Laboratories, Inc., Nellcor Puritan Bennett, Inc., Mallinckrodt, Inc., Tyco Healthcare Group LP, Tyco International Ltd., Tyco International (US) Inc. and the Registrant

10.31**#		Third Amended and Restated 1996 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan of the Registrant, as amended, and forms of agreements related thereto

10.32**#		2004 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan of the Registrant, as amended, and forms of agreements related thereto

10.33**#†		2007 Stock Incentive Plan of the Registrant, and forms of agreements related thereto

10.34+†		Amended and Restated Cross-Licensing Agreement, effective January 1, 2007, between Masimo Laboratories, Inc. and the Registrant

10.35**†		Services Agreement, effective January 1, 2007, between Masimo Laboratories, Inc. and the Registrant

10.36**		ADSP-2136X Sharc ROM Agreement, dated July 19, 2004, between Analog Devices Inc. and the Registrant

10.37*#		Bonus Award Plan

10.38**#		Form of Promissory Note entered into between the Registrant and certain of its officers and directors

10.39**#		Form of Stock Pledge Agreement entered into between the Registrant and certain of its officers and directors

16.1**		Letter from PricewaterhouseCoopers LLP

21.1**		List of Registrant’s subsidiaries

23.1**		Consent of Independent Registered Public Accounting Firm

23.2*		Consent of Paul, Hastings, Janofsky & Walker LLP (included in their opinion filed as Exhibit 5.1)

23.3**		Consent of Frost & Sullivan

24.1**		Power of Attorney (see page II-7 to the Registration Statement on Form S-1 (File No. 333-142171) filed with the SEC on April 17, 2007)

*	To be filed by amendment.

**	Previously filed.

#	Indicates management contract or compensatory plan.

+	Confidential treatment has been requested with respect to certain provisions of this agreement. Omitted portions have been filed separately with the SEC.

†	Subject to the approval of the Registrant’s stockholders.

LOGO

016570| 003590|127C|RESTRICTED||4|057-423

COMMON STOCK

PAR VALUE $.001

MASIMO CORPORATION

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE

AUTHORIZED SHARES $.001 PAR VALUE

Certificate Number

ZQ 000000

* * 6 0 0 6 2 0 * * * * * * * * * 6 0 0 6 2 0 * * * * * * * * * 6 0 0 6 2 0 * * * * * * * * * 6 0 0 6 2 0 * * * * * * * * * 6 0 0 6 2 0 * *

THIS CERTIFIES THAT

is the owner of

CUSIP 574795 10 0

SEE REVERSE FOR CERTAIN DEFINITIONS

** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample MR. SAMPLE & MRS. SAMPLE &**** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander MR. SAMPLE & MRS. SAMPLE David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Sample **** Mr. Sample

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FULLY-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF

Masimo Corporation (hereinafter called the “Company”), transferable on the books of the Company in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby, are issued and shall be held subject to all of the provisions of the Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company (copies of which are on file with the Company and with the Transfer Agent), to all of which each holder, by acceptance hereof, assents. This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.

Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.

DATED <<Month Day, Year>> COUNTERSIGNED AND REGISTERED:

COMPUTERSHARE TRUST COMPANY, N.A.

Chairman and Chief Executive Officer (DENVER)

TRANSFER AGENT AND REGISTRAR,

Secretary AUTHORIZED SIGNATURE

MASIMO CORPORATION

TRANSFER FEE $25.00

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:


TEN COM	- as tenants in common	UNIF GIFT MIN ACT-	Custodian
			(Cust)	(Minor)
TEN ENT	- as tenants by the entireties		under Uniform Gifts to Minors Act _________
				(State)
JT TEN	- as joint tenants with right of survivorship and not as tenants in common	UNIF TRF MIN ACT	Custodian (until age )
			(Cust)	(Minor)
			under Uniform Transfers to Minors Act _______
				(State)
	Additional abbreviations may also be used though not in the above list.

THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO REQUESTS, A SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OF THE COMPANY AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND RIGHTS, AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS DETERMINED FOR EACH SERIES, WHICH ARE FIXED BY THE CERTIFICATE OF INCORPORATION OF THE COMPANY, AS AMENDED, AND THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR FUTURE SERIES. SUCH REQUEST MAY BE MADE TO THE OFFICE OF THE SECRETARY OF THE COMPANY OR TO THE TRANSFER AGENT. THE BOARD OF DIRECTORS MAY REQUIRE THE OWNER OF A LOST OR DESTROYED STOCK CERTIFICATE, OR HIS LEGAL REPRESENTATIVES, TO GIVE THE COMPANY A BOND TO INDEMNIFY IT AND ITS TRANSFER AGENTS AND REGISTRARS AGAINST ANY CLAIM THAT MAY BE MADE AGAINST THEM ON ACCOUNT OF THE ALLEGED LOSS OR DESTRUCTION OF ANY SUCH CERTIFICATE.


		PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
For value received, hereby sell, assign and transfer unto


(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)



		Shares
of the common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint



		Attorney
to transfer the said stock on the books of the within-named Corporation with full power of substitution in the premises.

Exhibit 10.11

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

SHELTER LABOR SERVICES AGREEMENT

This Agreement is made and entered into this 27th day of December, 2000, by and between Industrial Vallera de Mexicali, S.A. de C.V., a Mexican Corporation (IVEMSA) and MASIMO CORPORATION (MASIMO) a Delaware Corporation, which will be in force once at least five employees had been hired, and which is executed in accordance with the following:

Recitals

First.

That Industrial Vallera de Mexicali, S.A. de C.V. is a mercantile corporation duly incorporated under Mexican laws, and that its business purpose is to offer administrative, accounting, customs and traffic, and human resources services to foreign companies that want to have a maquiladora process in this city of Mexicali, B.C

Second.

That Mr. Sergio Tagliapietra N., has enough faculties to act and enter this shelter agreement on behalf of IVEMSA.

Third.

MASIMO states that it is an American Corporation duly incorporated under the laws of the State of Delaware, in the United States of America, and that Mr. Gary L. Waite is empowered to act as legal representative of such corporation.

Fourth.

MASIMO declares that it desires to contract the services offered by IVEMSA, according to the following

CLAUSES

SCOPE OF AGREEMENT. Pursuant to this Agreement, IVEMSA agrees to render the administrative services for the Maquila operation to MASIMO or to those third parties that MASIMO may indicate, under the terms of this agreement. Therefore, MASIMO will operate under the IVEMSA quality system until notified to operate under MASIMO quality system, according to this agreement. IVEMSA will be responsible for the following functions: general management and administration of Maquiladora operations including personnel recruiting, employee relations, import/export. supervision and documentation, general accounting and all payroll services. In addition, IVEMSA will serve as project manager in planning and executing the transfer of the new company into Mexico, including the coordination of building improvements as required by MASIMO for the manufacturing site that has been previously selected and approved, according to the layout and building improvements list herein attached as exhibit “A.”

MASIMO will be responsible not only for any and all payment herein established, but also for the direct supervision of personnel within the facility, supervision and guard of raw material, equipment and operational control.

- 1 -

II.	LABOR PROVISIONS. IVEMSA shall make its best effort to supply MASIMO with all personnel needed, to be hired under the following provisions:

Upon each written request by MASIMO, IVEMSA shall employ and make available to MASIMO the requested number of personnel, who meet the basic qualifications.

Basic qualifications as established in every job description, for assembly line personnel will be supplied to IVEMSA at the time of this Agreement.

IVEMSA will screen and hire all prospective employees for assembly operations, according to the number or employees determined by MASIMO. In relation to Administrative and Director Positions MASIMO will decide not only the number of employees, but also the background they shall meet, and MASIMO will have the final hiring decision.

Any salaried or Management personnel requested by MASIMO and supplied by IVEMSA will be at a mutually agreed daily salary rate. Such personnel will be billed for on a weekly basis.

The agreed daily salary rates shall include all fringe costs such as taxes, insurance, and other normal employee costs for this type of personnel.

As used in this contract, the term “fringe” shall mean those benefits required under Mexican law or benefits required to maintain a stable work force, as determined by MASIMO. (Exhibit “C” articles from the Mexican Federal Labor Law GLW 27 Dec 00)

IVEMSA shall prepare. each individual labor proposal for indirect labor in order to prepare the corresponding agreement for each employee. The Labor Proposal shall be previously approved by MASIMO, even though IVEMSA appears as and is the employer, and which shall contain a confidentiality clause.

IVEMSA agrees to terminate any employee upon the written request of MASIMO, and MASIMO hereby assumes responsibility regarding severance pay as pass through expense

The labor billings and fringes will be invoiced weekly on a pass through basis based on hours paid, and shall be billed in U.S. Dollars at the exchange rate prevailing at the time of payment, for the sale of dollars in the Mexican Banking Institution instructed by IVEMSA.

The administrative service charge as quoted hereunder will be invoiced weekly using the listed Hourly Rate Schedule.

- 2 -

III.	HOURLY RATE SCHEDULE. The administrative service charge will be invoiced weekly as follows:


Number employees	Hours per week paid	Rate per hour in U.S. dollars
10	[…***…]	[…***…]
20
30
40
50
60
70
80

For the above purposes the following policies shall be observed:

1.	IVEMSA agrees to maintain, at all times, complete accounting, administrative, payroll, tax and book-keeping records pertaining to such personnel.

Wages and salaries, authorized overtime, taxes, profit sharing, special bonuses, rate premiums and fringe benefits approved by MASIMO for the personnel assigned to its operation will be billed as a “pass through”, including severance or termination payments for employees terminated by IVEMSA during such period due to instructions from MASIMO.

3.	Efficiency/productivity programs and bonuses may be implemented at MASIMO requests. The cost of such programs and bonuses will be treated as a “pass through” expense.

4.	Authorized overtime hours will be billed as a pass through.

For second shift operations, IVEMSA will bill MASIMO and pay employees for forty-eight (48) hours per week, while, pursuant to the labor laws of Mexico, the employees will only work forty-five (45) hours per week. The same obligation will be observed for the third shift, even though the employees will work only 42 hours, as provided by Mexican Labor Law.

* Confidential Treatment Requested

- 3 -

The above rates are binding for the first 36 months of the term of this Agreement, as said term is set forth hereunder. Such rates will be adjusted every year in accordance with any changes in the minimum or professional wages, as well as any inflationary change that may affect he operations of IVEMSA. No employees of IVEMSA shall be deemed employees of MASIMO under Mexican law. All personnel policies of IVEMSA, with respect to any changes to those policies must be approved by MASIMO in advance of implementation to insure production programs and/or quality of product are not degraded. Delays due to lack of prompt authorization will not be attributable to IVEMSA.IVEMSA shall immediately notify MASIMO of any labor disputes between IVEMSA and its workers and/or the union or coalition which represents them in the event that such disputes or disagreements may result in IVEMSA’s receiving a strike notice or in having raw materials or equipment in IVEMSA’s possession property of MASIMO which may be subjected to liens or attachments of any nature.

7.	MASIMO responsibilities for labor claims or lawsuits and due to MASIMO direct supervision of personnel shall include the payment of obligations derived from Mexican Federal Labor Law, Infonavit Income Tax and Federal Payroll Tax Laws. Attending Conciliatory will be IVEMSA’s responsibility.

IVEMSA will be responsible for any liability arising from the failure to act as per item III above or by negligence from any of IVEMSA’s administrative personnel (including central services: Overall General Management, Accounting, Human Resources, Customs and Traffic and Project Management personnel only).

IV.	IVEMSA RESPONSIBILITIES. The hourly rate schedule includes the following services that are provided by IVEMSA:

OVERALL GENERAL MANAGEMENT

•

Active non - monetary participation on MASIMO’s behalf within the National Maquiladora Association.

•

Active non - monetary participation on MASIMO’s behalf within the local Maquiladora Association.

•

Active non - monetary participation on MASIMO’s behalf within the Chamber of Industry.

•

Customs interface when it is needed.

•

Maintain a close relationship with government officials, etc.

•

Supervision of the Accounting, Human Resource, Customs and Traffic and Project departments.

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ACCOUNTING DEPARTMENT

•

Submit monthly declarations of: State & Federal Taxes (Income Tax, Value Added Tax, Assets Tax, the corresponding contributions to the National Fund for the Workers Housing, to the Retirement Savings System, to the Mexican Institute of Social Security, etc.)

•

Submit monthly reports to the Federal and State government agencies.

•

Submit monthly adjustments to the Mexican Institute of Social Security.

•

Weekly payroll and Work Order Reports.

•

Review and authorize purchase orders.

•

Review local suppliers.

•

Pay suppliers, taxes and others.

•

Invoicing.

CUSTOMS AND TRAFFIC DEPARTMENT

•

Analysis of customs documentation

•

Import permits, balances, reports, etc.

•

Preparation of invoices for raw material, machinery and equipment.

•

Raw materials inventory and control. Once IVEMSA receives the raw material, IVEMSA shall advice MASIMO about the quantities of kits received, within the following five working days, in order to MASIMO be able to know if there were losses.

•

Control balances on import permits.

•

Follow up of shipments through customs.

•

Preparation of invoices for finished product, and scrap returns.

•

Coordination with U.S. and Mexican Customs Brokers.

•

Supervision of loading and unloading of goods.

•

According to your needs, we can negotiate and contract transportation for your merchandise, obtaining the best price and service.

- 5 -

•

Expand the Maquiladora program when assembling new products, including machinery and raw materials permits.

•

Provide information to the accounting department for the preparation of the SECOFI/INEGI questionnaire, whenever they are needed.

HUMAN RESOURCES

•

Recruitment, interviews and selection of personnel (candidate’s analysis, reference verification, general facts).

•

Develop files for each employee with the proper documentation, individual labor agreement, IMSS registration number, etc.

•

Induction of new personnel.

•

Seniority acknowledgement letter, rights and obligations within the Labor Board.

•

Development of policies and procedures manual (vacations, Christmas bonus, uniforms, safety equipment, work hours, breaks, etc.)

•

Direct communication with personnel and management to detect problems or concerns regarding salary, promotions with supervisor, leaders, etc.)

•

Social security: registration, interface employee/ company/ social security, modifications (salary, status, etc)

•

Weekly personnel report: turnover, absenteeism, personnel increase or decrease, promotions, personnel requirements, individual control.

•

Social and sport activities according to calendar: Rosca de Reyes, candies, barbecues, volley-ball and basquet-ball tournaments, children’s day, mother’s day, Halloween, Christmas party.

•

Hygiene and. Safety: Integration of the Hygiene and Safety Commission, Safety or Hygiene courses from IMSS, company audits, the use of fire extinguishers, fire drills, monthly reports to the Labor Board, enforce of the Hygiene and Safety requirements. IVEMSA is liable to have established a pest control at the facility, which should be in force at least once monthly.

•

Monthly meetings: support general management preparing the different topics to be discussed, educational talks.

•

Filing for and attaining Mexican Immigration work permits (Any fees required are MASIMO responsibility).

•

Attend any conciliatory action exercised by a worker.

- 6 -

PROJECT DEVOLPEMENT SUPERVISION

•

At the initial stage, interface between MASIMO and the IVEMSA group

•

Site selection assistance

•

Building improvements coordination

•

Coordination with the different departments (accounting, human resources and customs and traffic) to have the proper documentation and permits to begin operations.

•

Assistance in filing for the Functioning License with the Baja California State Ecology Department (any fees required are MASIMO responsibility).

•

Assistance in acquiring any information required for the development of the project.

CAPITAL EQUIPMENT . While in IVEMSA’s possession, IVEMSA will maintain an accurate control log of all of MASIMO’s capital equipment and assets which will contain, but not be limited to:

Description of asset

Serial numbers

Model numbers and manufacturer.

Value, if available.

MASIMO agrees to provide IVEMSA with a list of all assets in order to facilitate this record keeping. A Bailment Agreement reflecting title and other pertinent information will be attached to this ocuments as Exhibit “B”

MASIMO will have the obligation to pay for maintenance of the assets and equipment used in the services contracted hereunder.

MANUFACTURING FACILITY TO BE PROVIDED BY IVEMSA. IVEMSA agrees to provide MASIMO, with a manufacturing facility under this agreement, and if the facility meets the following criteria, such facility will be guaranteed by MASIMO as may be provided for in the Lease Agreement and hereunder. Delays in starting operation due to lack of approval or guaranty for facility by MASIMO will not be a responsibility to IVEMSA.

The plant space shall be located in Mexicali, Baja California, Mexico or any other site mutually agreed upon by IVEMSA and MASIMO.

The building will be inspected and pre-approved by MASIMO before any final purchase or lease contracts are signed.

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All MASIMO required improvements to the building will be made at MASIMO’s expense. All such improvements will be pre-approved in writing by MASIMO.

IVEMSA agrees to make its best effort to expedite the start up of the plant in the most timely manner possible, further, MASIMO will exert its best efforts whenever its approval is required.

Rental payment will be the obligation of MASIMO or as may otherwise be agreed in this agreement, but at all times guaranteed by MASIMO.

In the event IVEMSA does not want to be responsible for the lease agreement any more, a subrogation may take place, in which MASIMO will take the place of IVEMSA, appearing as Lessee. This situation shall be expressly allowed in the lease agreement .

VI.	MASIMO’S RESPONSIBILITIES.

MASIMIO will be responsible for the following:

All components, materials, supplies, tools, fixtures, workbenches, machines and data processing equipment necessary to produce MASIMO products.

All required office equipment, supplies and costs for on site MASIMO’s and IVEMSA personnel.

All required “product specific” safety supplies.

All required material handling equipment and packaging including pallets, containers and bags.

Insurance on building, equipment, transportation and materials provided, leased or guaranteed by MASIMO. The building insurance will not be in force whenever an act of nature or God takes place. The insurance on building refers in this paragraph shall only cover any damage arisen from the nature of the manufacturing activities and/or any material, chemical or product used.

Capital equipment maintenance.

Facility maintenance per the attached lease agreement.

Execution of Lease Agreement and/or guaranties therefore.

MASIMO will be responsible for payment of:

Any expenses incurred due to performance, on its own risk and expense, of any improvements needed to carry on in its operation.

- 8 -

Expenses for moving equipment.

Legal fees to incorporate the new company in Mexico, if MASIMO exercises its option to operate independently of IVEMSA.

Costs for U.S. duties on labor, materials and equipment during the term of this Agreement and extensions therefore, including final exportation due to termination of Agreement, shall be MASIMO’s responsibility. MASIMO will be the importer or record at U.S. Customs.

Facility and U.S. warehouse rent.

Expenses for electrical hookup and usage.

Expenses for telephone hookup and usage.

Expenses for water hookup and usage.

Purified drinking water, janitorial supplies, toilet supplies.

10.

Hazardous waste disposal.

11.

Miscellaneous: Trash collection, medical services (as established by the Mexican Labor Law and the Social Security Law), security services.

12.

Any and all sums that are applicable under the terms of clause II, concerning labor liabilities.

13.

U.S. and Mexican Custom’s Brokers Fees.

14.

U.S. and Mexican duties, taxes and bonds.

15.

Freight to and from Mexicali, Baja California.

16.

Government licenses.

VII.

PASS THROUGH COSTS. Pass Through Costs are any and all costs and expenses related to operation activities, labor payments and raw material, equipment and machinery guarding. All pass through expenses stipulated hereunder, that are paid by IVEMSA in Mexican Pesos will be billed to MASIMO in U.S. Dollars, currency of the United States of America, at the exchange rate in force at the billing date for the sale of dollars , in the Mexican Banking Institution with which IVEMSA operates regularly.

All pass-through expenses to be billed and paid by MASIMO mustbe regularly scheduled and set forth in a budget approved by MASIMO.

It is expressly understood and so agreed by MASIMO that upon signature of this Agreement, and prior to the initiation of services independently of the obligation set forth in the

- 9 -

following clause, MASIMO will deposit the amount indicated by IVEMSA which represents the initial amount to be disbursed by MASIMO for payroll. Such sum will be adjusted once the actual invoice for services corresponding to such period is produced and sent to MASIMO in a monthly basis.

VIII.

INVOICING. Invoices for labor, indirect personnel, administrative fees and all other expenses to be paid by MASIMO shall be submitted by IVEMSA to MASIMO in accordance with the normal billing practices and invoiced by IVEMSA on a weekly basis to MASIMO to the Accounts Payable Department. Invoices shall be supported by documentation satisfactory to MASIMO and shall be approved by a MASIMO representative prior to payment.

MASIMO shall pay all invoices to an account designated in writing by IVEMSA. In the event of a dispute with respect to the charges submitted in an invoice, the undisputed portion of the invoice shall be paid by MASIMO within the terms specified herein, and payments of the disputed portion will be withheld pending resolution of such dispute. IVEMSA shall maintain accounts and complete records of all hours of direct labor employees engaged in the manufacturing for which payment under this agreement is to be computed on the basis of actual time paid, and charges of any kind payable by MASIMO under this agreement. Such records shall be maintained in accordance with recognized commercial accounting practices as to provide prompt and reasonable accounting information to MASIMO agreed hereunder. MASIMO has the right to audit records specific to MASIMO such as, but not limited to, payroll and time keeping records.

IX.	OTHER TERMS OF PROPOSAL.

MASIMO will provide full assistance in the training of quality assurance, manufacturing and assembly personnel as well as providing clear and specific quality - control requirements and timely feedback on workmanship quality.

Any termination of seniority benefits required by Mexican law and owed to employees due to a special work force reduction requested by MASIMO will be paid by IVEMSA and billed to MASIMO at cost. IVEMSA will negotiate the lowest benefits payment possible and will provide MASIMO the opportunity to participate in such negotiations directly or through MASIMO appointed agent. MASIMO shall create a special fund for severance payments as stated, to be adjusted annually, the base for the severance includes the following:

Three months severance pay, (for unjustified layoffs according to Mexican Labor Law)

One day for every month of work completed,

Vacation and Christmas bonus time due,

If the layoffs are without justified cause according to article 47 of Mexican Labor Law, twenty days wages per year of seniority will be due.

- 10 -

The obligation to create a fund will be executed and complied with by means of an additional sum in an amount equal to ten percent of the weekly payroll that will be added to the invoice or billed separately as may be applicable under Mexican Tax Laws. The 10% as mentioned above will be paid until such time that it represents full payment of termination pay and benefits to all workers then hired, and shall continue to be updated if such becomes necessary due to increase in hand labor. Such obligation may be substituted by means of a bond sufficient to pay for termination of up to 70 (seventy) employees. Once such number of personnel is reached, MASIMO will substitute or increase the value of the bond to cover any additional number of workers hired or contemplated to be hired within a period of six months. Such bond shall be placed in favor of IVEMSA through a legal Mexican Institution authorized to issue such bonds.

Any amount integrated in the fund referred in this clause, shall be MASIMO’s property, even though the fund will be managed by IVEMSA. This fund shall be created through an account in a Bank Institution designated by IVEMSA, and any interest this account may earned, shall be on benefit of MASIMO.

MASIMO shall deliver to IVEMSA prior to the initiation of services, evidence of any and all bonds, insurance or other documents to assure IVEMSA that all obligations have been complied with, within a period of thirty days as of the date of signature of this agreement, or immediately after following request by IVEMSA. not to exceed seven calendar days.

Terms of payments of Administrative services billing is net seven days. Invoices can be telefaxed to MASIMO weekly to commence payment processing to the following fax number: (001) (949) 250-9686. Hard originals will follow by mail.

A deposit will be required in order to expedite the pre – operation expenses payments, and a wire transfer will be required for the payment of pass - through expenses. Both the deposit and the wire transfer shall be made by MASIMO within ten (10) days following the enter of this agreement, at the bank institution called Wells Fargo Bank branch number 0275 addressed at 250 Fourth St. Calexico, CA. 92231, account number 219476272 and ABA number 121000248 at the name of Industrial Vallera de Mexicali, S.A. de C.V.

MASIMO will send a written notification when a deposit would be made to this account, and IVEMSA will return to MASIMO either an invoice or Memo as proof of the receipt of the monies.

All U.S. Customs tariffs and Mexican duties and any similar payments to the government of the United States or Mexico under this Agreement shall be paid by MASIMO.

IVEMSA shall be responsible for obtaining all necessary city, state or federal Mexican importation and exportation permits needed to import and export equipment, production tools, raw materials and components into Mexico. IVEMSA agrees to assist MASIMO in gathering the proper information and documentation necessary for all permits. MASIMO agrees to supply to the best of its ability, all information required for such permits.

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X.	COMMUNICATIONS. Both MASIMO and IVEMSA agree that clear communication lines between them are vital to this agreement. Accordingly, the following provisions are agreed upon:

All changes in this agreement or other subsequent agreements will be in writing and signed by the parties to this agreement at the time of such change or subsequent agreement.

MASIMO and IVEMSA each agree to designate a Program Manager who will be responsible for all activities under this agreement. All communications under this agreement will be directed to these persons. For this purpose, MASIMO appoints Mr. Gary L. Waite as Program Manager to supervise and make any decision toward to the compliance of this agreement.

Each Program Manager will be clearly indicated by name and will designate which address and phone number should be used to communicate all business maters.

MASIMO will provide IVEMSA with a list of personnel authorized to make purchases or contracts on its behalf. The list should indicate each person’s name in addition to what type of purchases or contracts he or she is allowed to signed and the dollar limits for each contract.

XI.	TERM OF AGREEMENT AND OPTION TO EXTEND. This agreement shall be effective upon execution, for a period of thirty six (36) months.

Providing that MASIMO is current with all its contractual obligations under this agreement, IVEMSA agrees to grant successive options to extend this agreement on the same terms and conditions with the exception of adjustment of cost and fees for additional twelve months periods; provided that such option shall be exercised by MASIMO in writing at least (90) ninety days prior to the expiration of this agreement or any extensions thereof.

XII.	TERMINATION FOR CAUSE

Either party shall give the other ninety days prior written notice of termination of this agreement based on clauses XII paragraphs D.1, and D.3 below, and thirty days prior written notice of termination for cause of this agreement based on clause XII paragraph D.2, D.4, D.5 and D.6 below.

In the event of termination for cause on ninety days notice by MASIMO, this agreement shall terminate immediately upon the expiration of said ninety days provided that MASIMO is current in payment of all invoices to IVEMSA; the termination shall be effective immediately upon the 91st day or immediately thereafter upon payment of all invoices that are outstanding on the 90th day. In the event some invoices are in dispute on the 90th day, the termination shall be effective on the 91st day notwithstanding those outstanding invoices provided written notice by MASIMO to IVEMSA of the disputed invoices has been given prior thereto and all non -disputed invoices have been paid.

- 12 -

In the event of termination by MASIMO for cause on thirty days notice, this agreement shall terminate as provided, however, such termination shall be subject to the condition that MASIMO is current in payment of all invoices to IVEMSA, and any and all additional monies due hereunder. In any such event, MASIMO shall have the right to give NEMSA notice of termination of this agreement as provided without any responsibility, liability or obligation on the part of MASIMO for the remaining term of this agreement, nor for the payment of rent , except for labor obligations that deal with severance provisions under Mexican law. The termination for cause on thirty days notice, shall be effective immediately upon the 31st day or immediately thereafter upon payment of all invoices that are outstanding on the 30th day. In the event some invoices are in dispute on the 30th day, the termination shall be effective on the 31st day notwithstanding those outstanding invoices provided written notice by MASIMO to IVEMSA of the disputed invoices has been given prior thereto and all non -disputed invoices have been paid.

Causes for termination of this agreement are as follows:

•

ONE PARTY’S DEFAULT

Either party fails to perform any material provision of this agreement and fails to cure such default in performance within a thirty day period of time following its receipt of notice from the other party specifying such a default exists.

If either party becomes insolvent, or makes an assignment for the benefit of creditors, or is adjudicated bankrupt in any voluntary or involuntary bankruptcy proceeding, this agreement will be terminated thirty days from receipt of insolvency notice.

Either party is delinquent in the fulfillment of its normal business obligations such as payment of taxes, labor or civil obligations to the extent that such obligations represent a real and present danger to the interest of the other party, and if such delinquency is not cured within thirty calendar days of notice given by the non—delinquent party.

•

MAYOR FORCE

In the event of any act of the United States or Mexican authorities, whether administrative, executive or judicial, which may effect a significant or material change in the Maquiladora Program, or result in the appropriation, forcible purchase or surrender in any other manner, of the assets of the business of IVEMSA or MASIMO, or may otherwise result in the prevention of IVEMSA or its Mexican subsidiary from doing business in Mexico.

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Theft of MASIMO’s equipment, materials and/or inventories under the custody and/or control of IVEMSA provided such theft is substantial and/or continuous. Substantial and/or continuous theft, for purpose of this provision, shall be defined as thefts cumulatively totaling U.S. $20,000.00 (Twenty thousand dollars U.S. currency) in value during any consecutive twelve months period.

Political an/or civil unrest or commotion, strikes, walkouts, riots, vandalism, malicious, mischief, if these prevent the efficient production of process in the plant or seriously affect employer/employee relations.

In the event that any provision, term or condition of this agreement is in conflict with any law, rule, regulation, or guideline of the government of the United States or Mexico, or any state or political subdivision of either, or of any department or agency of either, or is in conflict with any judgment, whether by good faith consent or otherwise, of any court of the United States of Mexico, or if either party has received notification of any proposed official action by any such government, agency, department, or court with respect to any such conflict, then, in such event, either party hereto may propose to the other, appropriate modifications to this agreement in order to cure or avoid such conflict or the effect thereof, and if agreement regarding such modification can not be reached within forty -five days from the making of such proposal, the parties agree to submit this dispute to arbitration under the rules of the American Arbitration Association as provided below.

In the event described before, the remaining provisions shall be in all legal forces and shall not be at any time considered as null.

XIII.

TERMINATION WITHOUT CAUSE

In the event that MASIMO wishes to terminate this agreement without cause at any time during the first year of this agreement, MASIMO shall be subject, independently of the obligation of payment for any outstanding amounts hereunder, […***…]. If termination without cause arises at any time during the second year of this agreement, MASIMO shall be subject to pay […***…]. This penalty shall be sufficient to compensate IVEMSA for damages caused due to early termination or termination without cause, in addition to (I) any amounts due and payable for services rendered hereunder, (II) additional pass through expenses as agreed and (III) seniority payments made by IVEMSA as a consequence of such earlier termination as provided or in clause IX, paragraph B). Such amounts shall be considered to indemnify IVEMSA for any investment made regarding hiring or administrative personnel, software, equipment, consulting assistance and all other items related specifically to this area.

* Confidential Treatment Requested

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However, in the event of termination of this agreement by MASIMO during the first year hereof, MASIMO will be released of any such penalty fee, provided that MASIMO is able to transfer this Agreement to any third party at IVEMSA’s satisfaction, and such third party contracts IVEMSA’s services for the remaining two years, under the terms and provisions of Section XII - A and B below.

For the purposes of termination as stated. on the first paragraph of this letter A, the right of termination during the second year may be exercised exclusively after six months have elapsed as of the conclusion of the first year of business. If IVEMSA decides to terminate this agreement without any cause, IVEMSA shall give a one hundred twenty - days prior notice to MASIMO, period in which MASIMO would be able to seek another Shelter supplier and make any arrangement in order to continue as Lessee of the facility.

If IVEMSA decides to terminate this agreement without any cause, IVEMSA shall be subject to payment of […***…], sufficient to compensate MASIMO for damages caused due to early termination or termination without cause by IVEMSA. In such event, MASIMO will assume any and all operations conducted by IVEMSA as well as any and all liabilities derived from such operations, including employees hiring and conditions.

XIV.	ASSIGNMENT

This contract shall not be assigned or in any other fashion conveyed, in whole or in part by IVEMSA, to any third party, without first obtaining MASIMO’s written consent in each and every such instance.

MASIMO shall have the right to assign this agreement and to assign its rights and delegate its duties under this agreement either in whole or in part (an “assignment”) at any time with the prior written consent by IVEMSA no consent is required if the assignment is for the benefit of a MASIMO subsidiary, successor, affiliated or related legal entity, including any portion or substantially all of the assets of MASIMO.

If MASIMO wants to assign this agreement to a different legal entity from such mentioned above, MASIMO must submit this situation to the approval of IVEMSA, and provide IVEMSA with all documentation an information related to such legal entity, in order to be able to make a decision in a reasonable time. IVEMSA shall not withhold the authorization unreasonably.

* Confidential Treatment Requested

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XV.	NEW COMPANY

LOS DOS PARRAFOS ANTERIORES SON CONTRADICTORIOS CON EL PARRAFO SIGUIENTE.

MASIMO may after the eighteenth month, initiate any proceeding toward the establishment of its owned subsidiary in Mexico. As established in the preceding paragraph, the “incubator” phase shall continue until the termination of the three - year term, herein agreed, at which time IVEMSA and MASIMO shall agree on terms and conditions under which the incubator phase shall operate.

Once MASIMO has incorporated the Mexican Company and the Mexican Company has obtained a Maquiladora Program issued by the Mexican Ministry of Commerce and Industrial Development (SECOFI) or the corresponding authority at such time, pursuant to Mexican Law, IVEMSA agrees to assist and collaborate with MASIMO and its Mexican Company, in order to have MASIMO Mexican Company take over IVEMSA’s manufacturing of the products herein contemplated, subject to the terms and conditions of paragraph A above.

MASIMO at any time may instruct IVEMSA to incorporate its own MASIMO Mexican Company, notwithstanding the fact that MASIMO will continue to be under the “incubator-shelter” system as specified in item A above.

XVI.	MAQUILADORA TRANSFER

Upon organization and under the terms of paragraph A) of Clause XV above, MASIMO shall cause its Mexican Company to carry out with IVEMSA, and IVEMSA shall carry out with the Mexican Company, the transfer of all machinery, equipment, inventory, work in process, materials, components and any other asset property of MASIMO or consigned by MASIMO to IVEMSA, from the Mexican Customs manifests (pedimentos) under IVEMSA, to manifests under MASIMO Mexican Company (hereinafter the “Maquiladora Transfer”). Said Maquiladora transfer shall be carried out in an orderly fashion, pursuant to the provision for such effect set forth under Mexican Customs Law and the Decree.

MASIMO will notify IVEMSA of the time in which the Maquiladora transfer is to take place between IVEMSA and MASIMO Mexican Company pursuant to the legal provisions contained in the decree, the Mexican Customs law and its regulations, and paragraph A) of Clause XV above.

IVEMSA shall be responsible to pay all of the tariffs, duties, customs broker fees or any other expenses that it may incur in order to carry out the maquiladora transfer from IVEMSA to MASIMO Mexican Company on an export basis. Theses expenses shall be treated as pass through expense and will be invoiced to MASIMO in accordance with section VIII of this Agreement.

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XVII.

TRANSFER OF OPERATION TO MASIMO MEXICAN COMPANY.

Starting the third year of operations under this Agreement or the terms stipulated in paragraph paragraph A) of Clause XV above, MASIMO and its Mexican Company shall have the right to take over the Manufacturing operations conducted by IVEMSA on behalf of MASIMO and its Mexican Company.

MASIMO and its Mexican Company shall notify IVEMSA in writing, at least 90 days, prior to the date on which MASIMO Mexican Company shall take the manufacturing conducted by IVEMSA as per paragraph A) immediately preceding.

As soon as MASIMO and/or its Mexican Company takes over the manufacturing conducted by IVEMSA, IVEMSA shall assign in favor of MASIMO Mexican Company all of IVEMSA’s rights and obligations as lessee under the lease agreement, as well as all of the utilities connected to the facility consequently MASIMO and/or its Mexican Company will be solely responsible to lessor.

IVEMSA commits itself to obtain the consent of the lessor under the facility’s lease agreement, to assign the lease in favor of MASIMO Mexican Company.

Prior to the transfer of IVEMSA’s operation to MASIMO Mexican Company, IVEMSA shall deliver to MASIMO Mexican Company all of the control records referred to in this agreement.

The whole incubator process will not produce at any moment, any kind of penalty to MASIMO, except as specified in item XIII.A above.

XVIII.

SUBSTITUTION OF EMPLOYER.

Prior to the transfer of the operation from IVEMSA to MASIMO Mexican Company under the terms of this agreement, as set forth in section XIV, MASIMO shall cause the Mexican Company to carry out a substitution of employer procedure, and at the request of MASIMO Mexican Company and/or MASIMO, IVEMSA agrees to carry out such substitution of employer procedure involving all of the personnel working for IVEMSA under this agreement.

The substitution of employer shall be carried out through agreement signed between IVEMSA and MASIMO Mexican Company where MASIMO Mexican Company will assume all rights and obligations which IVEMSA has over IVEMSA’s employees hired for MASIMO under the provisions set forth in this agreement. Said substitution of employer agreement shall be presented before the local labor board for approval. There shall not be any severance payment obligations for MASIMO and/or its Mexican Company related or as a result of the employer substitution agreement provided that, in accordance with Mexican Labor Law, MASIMO and/or its Mexican Company do not modify the labor conditions under which the employees were hired by IVEMSA. In the event any conflicts arises with such employees due to employer substitution, modifications in the labor conditions by MASIMO and/or its Mexican Company, MASIMO and/or its Mexican Company will be

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solely responsible for any and all severance payments, and IVEMSA will exert its best efforts in assisting MASIMO and/or its Mexican Company in any such negotiations. IVEMSA consequently shall not be liable for any suits or claims brought about by any IVEMSA employees hereunder, as a result or as a consequence of the employee substitution agreement, nor expenses arising for it (such as attorney’s fee, indemnification, etc.), and MASIMO and/or its Mexican Company shall solely assume such risks and shall keep IVEMSA free and clear of any such claims and/or liabilities.

XIX.

WARRANTS. IVEMSA warrants and agrees to support MASIMO to the best of its ability and experience utilizing its best efforts through the term, including utilization of qualified sources and contracts representing all services necessary to perform the functions required to operate this agreement successfully and to ensure that MASIMO’s desires in this project will be met in all phases.

XX.

CONFIDENTIALITY. IVEMSA will use its best efforts to maintain MASIMO’s identity in confidence. IVEMSA will hold in confidence all information, documents and other materials designated by MASIMO as being proprietary. IVEMSA will also protect MASIMO’s trade secrets including all matters specified in this agreement and all procedures involved with MASIMO’s products, and any and all other information that MASIMO may acquire as a consequence of this agreement. For the compliance of this obligation, the parties agree to enter the Confidentiality Agreement herein attached as Exhibit “ ,” as may be approved by IVEMSA, and which provided for protection of both parties rights to confidentiality and secrecy

MASIMO will use its best effort to maintain IVEMSA’s identity in confidence. MASIMO will hold in confidence all information, documents and other materials designated by IVEMSA as being proprietary. MASIMO will also protect IVEMSA’ s trade secrets including all matters specified in this agreement and all procedures involved with IVEMSA’s know-how, techniques and any and all other information that MASIMO may acquire as a consequence of this agreement.

XXI.

CONFLICT OF INTEREST. IVEMSA, including its successors and/or principles, agrees that, during the term of this contract and any extensions thereof, it will not enter into any agreements, contracts, oral or written, or associations with any company, corporation or individuals that are associated in any way competitive with MASIMO products, manufacturing, distribution or sales, as disclosed to IVEMSA.

XXII.

IVEMSA ADDITIONAL RESPONSIBILITIES.

IVEMSA will perform all interface relations with local, State and Federal governments and will obtain all necessary approvals, licenses and permits required to import equipment and materials into Mexico and operate under Mexico’s Maquiladora Programs, including but not limited to compliance with all Mexican Environmental Laws, rules, regulations and treaties and all applicable U.S. Environmental Laws, rules, regulations and treaties.

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It is understood that IVEMSA will coordinate with MASIMO to ensure the importation of product and equipment to Mexico and subsequent export back to the U.S. of finished product, waste and any equipment in conformance with existing U.S. and Mexican government procedures and laws.

XXIII.

ASSISTANCE BY MASIMO. It is expressly understood that MASIMO shall have the sole responsibility of carrying out the maquila operation to be performed hereunder, and that the obligation of IVEMSA is limited solely to the administrative management and initial start up operations of MASIMO. Consequently, MASIMO shall undertake at its sole direction, through its authorized qualified personnel, the direction, training, quality control and supervision of personnel at IVEMSA’s plant to manufacture MASIMO’s products. MASIMO agrees to pay directly for all costs for such assistance, in addition to all those hereinafter agreed upon.

XXIV.

MANUFACTURING STANDARDS. IVEMSA shall not be obligated to, nor be liable for the quality and design contained in the manufacturing information. Therefore, it should be the express responsibility of MASIMO to establish guidelines and policies to provide for quality control. MASIMO shall have the right to free access to the plant and offices of IVEMSA precisely at the site where the operation for MASIMO is conducted, at all times during working hours, for the purpose of reviewing the manufacturing and production facilities and the manufacturing methods being employed by IVEMSA in the manufacturing of the products.

STORAGE FACILITIES AND DELIVERY OF COMPLETED PRODUCTS.- IVEMSA, without being obligated to, shall reasonably assist MASIMO in securing and maintaining adequate facilities for all raw material received from MASIMO as well as work in progress and completed products in such manner as to prevent loss or damage of any kind of raw materials, work in progress and completed products. IVEMSA shall also further assist MASIMO in maintaining adequate records of the same, including inventory, work in progress, completed products and any other records and reports reasonably required by MASIMO. Delivery of completed products shall be made by IVEMSA to MASIMO or its designee at such time and place with such carriers as may be designated by MASIMO and in accordance with shipping instructions received from the latter. IVEMSA agrees to adhere to all shipping and handling procedures requested by MASIMO for which the latter shall prepare forms and operating procedures to be furnished by MASIMO.

XXV.

INSURANCE. Insurance for all raw materials of MASIMO in the possession of IVEMSA shall be obtained with an insurer approved by MASIMO, and for the account and benefits of MASIMO. Said insurance shall be in an amount sufficient to cover risks indicated by MASIMO and subject to terms and conditions satisfactory to MASIMO. Costs for such insurance shall be paid by MASIMO. If obtained from a Mexican Company, insurance coverage shall provide for dollar replacement value, or as otherwise determined by MASIMO.

For such purpose, and if IVEMSA is to obtain such insurance on behalf of MASIMO, then MASIMO will provide to IVEMSA a written statement certifying under oath, the value of

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the raw materials and all property of MASIMO in possession of IVEMSA, so as to allow IVEMSA to obtain the insurance in an amount sufficient to cover such properties. From time to time MASIMO shall update any such information to duly support such insurance. Consequently, IVEMSA is hereby released of any responsibility regarding losses or damages to the raw materials as indicated herein. Further MASIMO shall pay for any insurance that may be required under the lease agreement and/or shall compensate IVEMSA for any such insurance that it may have procured or paid on behalf of MASIMO, which shall be billed as pass through to MASIMO. Notwithstanding the above mentioned, IVEMSA shall put its best efforts to secure the guarding of those materials and equipment owned by MASIMO, as if they were of its own property as may be reasonably possible. Furthermore, MASIMO, under the terms of the Bailment Agreement executed or to be executed with IVEMSA assumes responsibility for providing each and every piece of machinery, equipment, tool, utensils, and items necessary to implement the production process. In this regard, MASIMO shall be bound to obtain any and all insurance necessary to protect such items from loss or damages, thereby releasing IVEMSA from any and all responsibilities in connection therewith.

XXVI.

INDEMNITY

Neither party shall be liable to the other for any delay resulting from the circumstance that it is temporarily unable to perform its obligation under this agreement because of fire, flood, strikes, labor troubles or other industrial disturbances, freight embargoes, governmental restrictions or regulations, war (declared or undeclared), riots, insurrections, or other causes beyond its control.

In view of the fact that IVEMSA will use machinery, equipment and materials imported temporarily into Mexico, under permits to be granted in each case by the Mexican authorities, and since all of such operations shall be subject to the laws, regulations and rulings concerning the Maquiladora industries, the parties hereto expressly agree that neither party shall be liable to the other in the event of a failure to receive the necessary permits for importation of such machinery, equipment and materials, or by virtue of any orders given by the Mexican authorities which are not consequence of the fault of either of the parties hereto, which results in the delay, interruption, prevention or impossibility of performance part or all of the manufacturing operations of this agreement. MASIMO shall be. responsible for any and all liabilities as a result of claims or suits due to, because of, or arising out of, any and all personal injuries, and/or property damage arising out of the operation and/or the manufacture, handling, storage and delivery of the raw materials and/ or the products referred to in this Agreement, considering that IVEMSA will only be rendering administrative services as specified hereunder. IVEMSA shall indemnify and hold MASIMO harmless against and in respect of any and all claims, demands, losses, liabilities, costs, expenses, obligations and damages, including reasonable attorneys’ fees, suffered or incurred by MASIMO which arise, result from or relate to any breach of or failure by IVEMSA and/or its employees, agents or representatives, to perform any of its representations, warranties, covenants or agreements in this Agreement or in any exhibit or agreement attached to this Agreement or referenced or

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related thereto, or which arise, result from or relate to any liability or obligation of MASIMO resulting from the negligent actions of IVEMSA, as may be duly proven by MASIMO.

XXVII.

MISCELLANEOUS.

IVEMSA agrees that MASIMO may inspect all personnel records under MASIMO project during reasonable working hours. Furthermore, to the extent that IVEMSA maintains any legal, or other records in any way related to MASIMO or its business, such records shall be made available to MASIMO for review and inspection on a reasonable basis.

IVEMSA shall obtain and retain during the terms of this agreement and all contract and all required licenses and permits, and shall provide MASIMO copies of all licenses and permits, including but not limited to all customs permits. In addition, IVEMSA shall provide copies of such records to MASIMO’s Mexican legal counsel as requested by MASIMO from time to time.

IVEMSA covenants and warrants that the performance of its obligations under this agreement will comply with all applicable laws, rules regulations and order of the United States and Mexico and of any state or political subdivision thereof, as well as all treaties an agreements between the United States and Mexico. IVEMSA agrees to indemnify and hold MASIMO free and harmless against any loss, cost, expense, damage, attorney’s fee’s and cost or any other liability incurred by reason of failure to do so.

In carrying out its responsibilities under this agreement, IVEMSA on behalf of itself, agrees not to pay or agree to pay, directly or indirectly, any funds or anything of value to any public official in Mexico for the purpose of influencing such official’s acts or decisions. If IVEMSA directly offers, pays, promises gives or authorizes payment of any money or of anything of value to any government or public official for the purpose of influencing any official act or decision of such official in the course of carrying out this agreement, this agreement will be void ab initio and IVEMSA will surrender any claim for payment under this agreement and will refund any payments received under this agreement.

IVEMSA shall immediately give written notice to MASIMO of any governmental regulatory action, labor suit or claim filed with the labor board or any suit or claim filed in California, United States, or Baja California, Republic of Mexico.

Nothing in this agreement whether expressed or implied is intended to confer any right or remedies under or by reason of this agreement on any person other than IVEMSA and MASIMO, the parties hereto.

Any dispute arising due to the interpretation or application of any covenant herein contained, the parties agree to submit it to arbitration, under the rules of the American Arbitration Association (AAA), according to the following statements:

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This agreement is made and entered into in the State of California and shall be governed by and construed and enforced in accordance with the laws of the State of California. Therefore this legal frame should be use whenever a disputed is submit under arbitration.

Each party will chose an arbitrator from the list of arbitrators of the AAA, whose fees shall be paid by each party.

In the event those two arbitrators may not get a common final resolution, a third arbitrator shall be appointed, whose fees will be paid by the parties in the same proportion to each one.

If an appeal process is allowed by the AAA, the losing party may be able to exercise this option. In the event that the AAA does not stipulate anything about appeal’ expenses, they will be at first paid by the appellant and shall be reimbursed by the other party in case the appellant wins in this first appeal.

Any other expense, such as copies, expert or/and appraiser’ fees, etc, shall be covered by the party that asks for the appeal.

If there is a general fee established by the AAA, this will be paid by both parties in the same proportion.

The arbitration hearing will be held in Orange County in the State of California, U.S.A. and the language to be used shall be English.

The language in all parts of this agreements shall in all cases be construed according to its fair meaning and not strictly for or against any of the parties hereto.

This agreement may be executed in any number of identical counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument when each party has signed one such counterpart.

This agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof and the transactions contemplated hereby.

Except as otherwise provided in this agreement, IVEMSA and MASIMO shall not be responsible for any loss or breach due to delay in delivery or performance hereunder caused by third parties, governmental regulations, controls or directions, outbreak of a state of emergency, acts of God, war, hostilities, civil commotion, riots, epidermis, perils of the sea or other natural casualties, fires, strikes, walkouts or other similar cause or causes beyond the control of the parties.

When necessary herein all terms used in the singular shall apply to the plural and all terms used in the masculine or feminine gender shall apply to the neuter.

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All notices and demands of any kind which either party hereto may be required or desire to serve upon the other party under the terms of this agreement shall in writing and shall be served upon the other party by personal service upon such other party or by leaving a copy of such notice or demand at the address hereinafter set forth, whereupon service shall be deemed complete, or by mailing a copy thereof by certified United States mail, postage prepaid with return receipt requested, addressed as follows:


1. To IVEMSA -		Attention to Mr. Sergio Tagliapietra 233 Paulin Avenue, PMB 5765, Calexico, CA. 92231-2646.

2. To MASIMO -		Attention to Mr. Gary L. Waite 2852 Kelvin Avenue Irvine, CA. 92614 Phone: (949) 250-9688 Fax: (949) 250-9686

With copy to:		Arter & Hadden LLP Attention to: Mr. Chriss Kilpatrick Jamboree Center Five Park Plaza, Suite 1000 Irvine, California 92614 – 8528 Phone: (949) 252-7500 Fax (949) 833-9604

With copy to:		Bufete Enriquez de Rivera, S.C. Attention to: Yissel Vidal Lerdo 1595, Col. Nueva Mexicali, B.C., 21100 Phone: (6) 552-5060 Fax: (6) 554-8180

In case of service by United States mail, it shall be deemed complete on the day actual delivery is made, as shown by the addressee’s registry or certification received or by the expiration of the third day after the date of mailing, whichever occurs first. The address to which notices or demand should be delivered or sent may be changed from time to time by notice served, as hereinabove provided, by either party upon the other party.

Each individual executing this agreement on behalf of the partnership or corporation represents and warrants that he is duly authorized to execute and deliver this agreement on behalf of such partnership or corporation, by a its partners or board of directors, and binding upon such partnership or corporation its terms.

Subject to the restrictions against contained, this agreement shall insure be binding upon permitted assigns and of each of the parties hereto.

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Time is of the essence for the performance satisfaction of all conditions of this agreement.

The waiver by one party of the performance condition or promise shall not invalidate it be considered as a waiver by such party condition or promise. The delay in pursuing insisting upon full performance for any covenant, condition or promise shall later pursuing any remedies or insisting the same or any similar breach or failure.

IVEMSA agrees that it shall treat as confidential relating to any processes utilized by and shall not reveal such information authorized in writing by MASIMO to do

All exhibits to which reference is made deemed to be incorporated here in by each forth.

In the city of Calexico, California, this 27th day of December, 2000.

INDUSTRIAL VALLERA D MEXICALI, S.A. DE. C.V.,

/s/ Sergio Tagliapietra

Mr. Sergio Tagliapietra

President


MASIMO CORPORATION

/s/ Joe Kiani				/s/ Gary L. Waite
Joe Kiani				Mr. Gary L. Waite
President, CEO				Vice – President

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Exhibit “A”

Layout and building improvement lists to be added when suitable site is selected.

/s/ Gary Waite

Masimo

VP Manufacturing

27 Dec 2000

A-1

Exhibit “B”

Batment Agreement, or list or Masimo assets transferred to IVEMSA under the Shelter Labor Agreement.

List to be established and maintained upon initial production transfer. This is a Masimo responsibility.

/s/ G. L. Waite

Masimo

VP Manufacturing

27 Dec 00

B-1

Exhibit “C”

These are the main articles from the Mexican Federal Labor Law , that will help you in the understanding of some concepts established in the shelter agreement. We are editing our English version of the whole labor law.

Salary

Article 84. The salary, includes cash payments for daily wage, bonuses, receipts, housing, premiums, commissions, benefits in kind and any other amount or benefit given to the worker for his work.

Article 87. Workers shall be entitled to a Christmas bonus equal to at least fifteen days for salary, which shall be paid before December 20.

Those who have not completed one year of service, even when they are or not working at the date which it is paid, shall be entitled to be paid in proportion to the time worked.

Article 88. The period for payment of salaries shall never exceed one week for individual who perform manual labor, and fifteen days for other workers.

Article 89 . To determine the amount of the indemnification that should be paid to the workers, the salary for the day on which the right to the indemnification arises shall be used as the basis, including therein the daily, wage and, the proportion of benefits mentioned in Article 84.

To determine the daily salary when the salary is established by the week or by the month, it shall be divided by seven or by thirty, as the case may be.

Termination of labor relationship

Article 48 . The worker may, at his election, request from the Conciliation and Arbitration Board to be reinstated in his job or to receive and indemnification equal to three months’ salary.

If the employer fails to show the cause of rescission in the proceedings, the worker shall be entitled, in addition to whatever the action exercised might have been, to be paid the salaries accrued from the date of dismissal to the effective date of the award.

Article 49 . The employer shall be exempt from the obligation to reinstate the worker, if he pays the indemnification determined in Article 50, in the following cases:

I.	When the worker have been employed for less than a year;

II.

If he shows before the Conciliation and Arbitration Board that the worker, because of the work he performs or the characteristics of his job, is in direct and permanent contact with him and the Board considers, taking into account the circumstances of the case, that a normal relationship is not possible;

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III.	In the case of confidential employees;

IV.	In the case of domestic service; and

V.	In the case of occasional workers.

Article 50. The indemnification referred to in the preceding article shall consist of:

An amount equal to the amount of salaries for one-half of the period of services rendered, if the employment contract were for a definite period of less than one year; if it exceeded one year, an amount equal to the amount of salaries for six months for the first year, plus an amount equal to twenty days of salary for each of the .succeeding years during which services were rendered;

II.	The salary of twenty days for each year of services rendered, if the employment contract were for an indefinite period; and

III.	In addition to the indemnification referred to in, the preceding paragraphs, n amount equal to three months’ salary, plus the salaries. accrued from the date of dismissal until the indemnification are paid.

Article 51. The following are causes for rescission of the employment contract, without responsibility of the worker:

I.	If the employer or the employers’ association deceives him with respect to the conditions of the job at the time the job is offered to him. This cause for rescission shall cease to be effective after the worker has been working for thirty days.

II.	If the employer, his family, his officers or administrative personnel, during working hours, commit dishonest or violent acts, make threats, offend or mistreat the worker, his spouse, parents, children of brothers and sisters;

III.	If the employer, his family or employees, outside or working hours; commit any of the offenses listed in the preceding paragraph, and the offense is of such serious nature that it makes the work relationship impossible;

IV.	If the employer reduces the worker’s salary;

V.	If the worker fails to receive his salary on the usual or agreed date or place;

VI.	If the employer maliciously causes damage to his working tools or utensils;

VII.	If there is serious danger for the security of health of the worker. or his family, due either to the lack of hygienic conditions in the establishment or to failure to comply with the preventive and safety measures established by the laws;

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VIII.

If the employer, through negligence or inexcusable carelessness, endangers .the safety of the establishment or of the persons in it; and

IX.	Causes similar to those set forth in the preceding paragraphs, of equal seriousness and of similar consequences insofar as the work is concerned.

Article 52. The worker may terminate his employment within thirty days following the date on which any of the causes listed in the preceding article arises, and shall be entitled to be indemnified by the employer in the terms of Article 50.

Article 53. The following are causes of termination of employment contracts:

I.	Mutual consent of the parties;

II.	Death of the worker;

III.	The termination of the work or the expiration of the period or the expenditure of capital, according to Articles 36, 37 and 38;

IV.	The physical or mental disability or the manifest inability of the worker which makes the performance of the work impossible; and

V.	The cases to which Article 434 refers.

Article 54. In the case of paragraph IV of the preceding article, if the disability results from a nonoccupational hazard, the worker shall be entitled to be paid one month’s salary plus twelve days for each year of service, according to the provisions of Article 162, or, if possible, if he so desires, to be given another job compatible with his ability, regardless of any benefits to which he may be entitled according to the laws.

Article 55. If, in the proceeding, the employer fails to prove the cause of termination, the worker shall have the rights indicated in Article 48.

Seniority

Article 162. Permanent workers are entitled to a seniority premium, according to the following rules:

I.	The seniority premium shall be an amount equal to twelve days of salary for each year of services.

II.	In determining the amount of the salary, the provisions of Articles 485 and 486 shall. apply.

III.

The seniority premium shall be. paid to workers, ‘who voluntarily resign, provided that they have completed, at least, fifteen years of service. It shall also be paid to those who cease to work for. a justifiable reason and those who are terminated, regardless or whether the, termination is justified or not;

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IV.	In cases of voluntary retirement of the workers, the following rules for the payment of the premium shall be observed:

If the number of workers to be retired within one year does not exceed ten percent of the total number. of workers of the enterprise or establishment, or the number of workers. in a specific category, the payment shall. be made at the time of retirement.

If the number of workers to be retired exceeds ten percent, those retiring first shall be paid, and payment to workers exceeding such percentage may be deferred to the following year.

If a number of workers in excess of such percentage retires at the same time, the premium shall be paid to those with the greatest seniority, and payment to the remaining workers may be deferred to the following year;

V.	In case of death of the worker, whatever his seniority may be, the premium payable shall be paid to the persons mentioned in Article 501; and

VI.	The seniority premium to which this article refers shall be paid to the workers of their beneficiaries, in addition to any other benefit to which they may be entitled.

Vacations

Article 76. Workers with more than one year of service shall enjoy an annual period of paid vacations that shall, in no event, are less than six working days. It shall be increased by two working days, up to twelve, for each subsequent year of service. Following the fourth year, the vacations period shall be increased by two working days each subsequent five-year period.

Article 77. Workers who do not perform continuous services, and seasonal workers, shall be entitled to an annual vacation period in proportion to the number of days worked during the year.

Article 78. The workers shall enjoy at least six consecutive days of vacation.

Article 79. Monetary compensation may not be given in lieu of vacations. If the work relationship ends before the first year of service is completed, the worker shall be entitled to remuneration in proportion to the length of service.

Article 80. The workers shall be entitled to a premium of not less than twenty-five percent over their salaries for the vacation period.

Article 81. Vacation time shall be granted to the workers within six months following completion of the first year of service. Employers shall give to each employee, annually, a statement showing the employee’s seniority and, according to such seniority, the vacation time to which he is entitled and the date when his vacation should be taken.

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Article 117. Workers shall participate in the profits of the enterprises, according to the percentage determined by the National Commission for the Participation of the Workers in the Profits of the Enterprises.

Article 118. In determining the percentage to which the preceding article refers, the National Commission shall carry out the investigations and the appropriate and necessary studies to -learn the. general conditions of the national economy, and, shall take into consideration the need to encourage the industrial development of the country, the right of capital to obtain reasonable return and the necessary reinvestment of capital.

Article 122. The distribution of profits among the workers shall be made within sixty days following the date on which the annual tax must be paid, even though the objection of the workers is pending.

When the Ministry of. Finance and Public Credit increase the amount of taxable income, without and objection from the workers or without been resolved it, an additional distribution will be made within the 30 days following the date in which the resolution is notified.

Just in case of the resolution is impugning by the employer, it will be suspended the payment of the additional distribution until the final resolution, guaranteeing the interest of the workers.

The amount of the profits not claimed in the year in which they are payable, shall be added to the distributable profits of the following year.

Article 123. The distributable profits shall be divided into two equal portions: the first shall be distributed equally among all the workers, taking into consideration the number of days worked by each one during the year, regardless of the amount of the salary. The second shall be distributed inn proportion to. the amount of the salaries earned for work performed during the year.

Article 124. For purposes of this chapter, salary is the amount received in cash by each worker as daily wage. Bonuses, receipts, and other benefits to which Article 84 refers, as well as the amounts received by the worker for overtime work, are not considered part of the salary.

In cases of salary per unit of work. and,. in general, when the remuneration is variable, average receipts obtained during the year shall be taken -as the daily wage.

Christmas Bonus

Article 87. Workers shall be entitled to a Christmas bonus equal to at least fifteen days for salary, which shall be paid before December 20.

Those who have not completed one year of service, even when they are or not working at the date which it is paid, shall be entitled to be paid in proportion to the time worked.

Minimum Salary

Article 90. Minimum salary is the lowest amount in cash that- a worker should receive for services rendered in a work period.

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The minimum salary shall be sufficient to satisfy the ordinary material, social and cultural needs of a head of household, and to provide for the compulsory education of the children.

It is considered as social utility, the establishing of institutions and measures to protect the acquisitive salary’s capacity and to facilitate the access to the workers to obtain their satisfactories.

Article 91. The minimum salaries may be general, for one or more geographic areas, which may comprise one, or more Federated Entities, for a particular branch of the economic activity, or for specific professions, trades or woks, within one or several geographic areas.

Article 94. The minimum salaries shall be established by a National Commission integrated by workers’, employers’, and government’s representatives, which could be helped by the Special Commissions. that it consider indispensable for its work, with Consultative character.

INFONAVIT

Article 136. Agricultural, industrial, mining or any other kind of enterprises are required to provide comfortable and hygienic housing to their workers. To comply with this requirement the enterprises should contribute to the National Fund for Housing, 5% of the workers’ salaries.

Article 137. The National Fund for Workers Housing, will have as purpose to create financing systems that allow the workers to obtain cheap housing loan, to acquire, build, repair, or improve their houses and to pay the credits granted to them for theses concepts.

Article 138. The resources of the National Fund for Workers Housing will be administrated by an organism integrated in a tripartite way with representatives of the Federal government, workers and employers.

Article 139. The Law created by such organism, sill rule the processes and manners according with which the workers will be able to acquire the property of houses and obtain the credits referred in Article 137.

EMPLOYER’S SUBSTITUTION

Article 41. The substitution of employer shall not affect the work relationships of the Enterprise or establishment. The substituted employer shall. be jointly and severally liable with the new employer for the obligations derived from the work relationship and from this Law which arose prior to the date of the substitution, for a period of up to six months. After this period has expired, liability rests exclusively with the new employer.

The six-month period referred to in the preceding paragraph shall be counted from the date that notice of the substitution is given to the union or to the workers.

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Exhibit 10.15

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

February 24, 2005

Masimo Corporation

40 Parker

Irvine CA 92618


Attention:		Kathy Spain, Buyer; and
		Gary Waite, VP Manufacturing

RE:

Purchase Agreement between Masimo Corporation and Seller, dated July 26, 2001 (the “Agreement”)

Dear Ms. Spain & Mr. Waite:

As you may know, Varian, Inc. (“Varian”) and Jabil Circuit, Inc. (“Jabil”) have signed a definitive agreement under which Jabil will acquire Varian’s Electronic Manufacturing business (the “Transaction”). Jabil is a global leader in the electronics manufacturing services sector. The Transaction is expected to close in March, 2005. We’re very excited about joining the Jabil team while continuing to provide. the customer focused service you have grown to expect from us.

As may be required under the Agreement, this letter serves as a notice to you of the proposed Transaction, and hereby requests your written consent to assign the Agreement in its entirety to Jabil.

Your signature below will constitute your acknowledgement that as of and following the consummation of the Transaction, the Agreement will be assigned to Jabil in its entirety, and Jabil will be subject to the same obligations and enjoy the same rights that Varian was subject to and enjoyed under the Agreement as of immediately prior to the Transaction. Please (i) countersign this letter where indicated, (ii) fax the signed consent letter to Renee Myers (fax: 480-829-4000), and (iii) return the original, executed letter to Ms Renee Myers at Varian Electronics Manufacturing, 615 South River Drive, Tempe, AZ 85281 as soon as possible, but no later than March 2, 2004.

If you have any questions, please do not hesitate to contact Gene Sparks at Gene.Sparks@varianinc.com or 480-829-4097, or Renee Myers at renee.myers@varianinc.com or 480-968-6790, extension 4447.


Very truly yours,

Varian, Inc.

By:		/s/ Gene Sparks
Name:		Gene Sparks
Title:		Director Business Development


CONSENT AND ACKNOWLEDGEMENT GIVEN:

Masimo Corporation

By:		/s/ G. L. Waite
Name:		Gary Waite
Title:		VP Manufacturing
Date:		03 March 2005

Purchase Agreement

by and between

VARIAN, INC. ELECTRONICS MANUFACTURING

(“VEM”)

and

MASIMO CORPORATION

(“Masimo”)

PURCHASE AGREEMENT

This Purchase Agreement (“Agreement”) is entered into this 26th day of July 2001 by and between Varian, Inc. Electronics Manufacturing, a Delaware corporation having its place of business at 615 South River Drive, Tempe, Arizona 85281 (“VEM”) and Masimo Corporation, having its place of business at 2852 Kelvin Avenue, Irvine, CA 92614 (“Customer”).

Customer has created a market for Customer’s Products and is solely responsible for the sales and marketing of the Products. VEM has developed processes and practices for manufacturing products for many different electronic applications and at Customer’s request desires to manufacture Customer’s Products in accordance with Customer’s specifications. Customer acknowledges that VEM’s expertise is manufacturing and that VEM’s responsibility related to the Customer’s Products is limited to this extent. The parties agree as follows:

1.0 WORK, LICENSE

VEM agrees to use reasonable commercial efforts to perform the work (hereinafter “Work”) pursuant to purchase orders or changes thereto issued by Customer and accepted by VEM. Work shall mean to procure labor, components, materials, equipment and other supplies and to manufacture, assemble, and test printed circuit board products more particularly described on Exhibit 1.0 (hereinafter “Products”) pursuant to detailed written specifications for each such Product which are provided by Customer and accepted by VEM and to deliver such Products. For each Product or revision thereof, written specifications shall include but are not limited to bill of materials, designs, schematics, assembly drawings, process documentation, test specifications, current revision number, and approved vendor list (hereinafter “Specifications”).

VEM is granted by Customer a non-exclusive license during the term of this Agreement to use Customer’s patents, trade secrets and other intellectual property as necessary to perform VEM’s obligations under this Agreement.

2.0 FORECASTS, ORDERS, MATERIAL PROCUREMENT

2.1 Forecast . Customer shall provide VEM, on a monthly basis, a rolling six (6) month Product order forecast.

2.2 Purchase Orders . Customer will issue written purchase orders once per calendar month which specify all Work to be completed within a minimum four (4) month period commencing on the date of the purchase order. Each purchase order shall reference this Agreement and the applicable written Specifications as described in Section 1.0. Purchase orders shall normally be deemed accepted by VEM, provided however that VEM may reject any order that represents a significant deviation from Customer’s most recent rolling Product order forecasts for the same time period. VEM shall notify Customer of rejection of any purchase order within five (5) working days of receipt of such order.

Customer may use its standard purchase order form to release items, quantities, prices, schedules, change notices, specifications, or other notice provided for hereunder. The parties agree that the terms and conditions contained in this Agreement shall prevail over any terms and

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conditions of any purchase order, acknowledgment form or other instrument used for ordering Work under this Agreement.

2.3 Material Procurement . Customer’s accepted purchase orders will constitute authorization for VEM to procure, using standard purchasing practices, the labor, and the “Inventory” necessary for the manufacture of Products covered by such purchase orders. The Inventory includes components, materials and supplies.

In addition, Customer authorizes VEM to purchase, components, materials, and supplies: (i) with lead times exceeding the period covered by the accepted purchase orders for the Products to the extent necessary for the manufacture of additional Product covered by the Customer’s forecast (“Long Lead Time Components”) and, (ii) purchased in quantities above the required amount for purchase orders to achieve price targets (“Economic Order Inventory”), and (iii) purchased in excess of requirements for purchase orders because of minimum lot sizes available from manufacturers (“Minimum Order Inventory”). Together these are called “Special Inventory”.

The term “lead time” in this Section shall mean the lead time recorded on VEM’s MRP system at the time of procurement of Inventory and Special Inventory or at the time of the cancellation of the purchase order or termination of this Agreement whichever is greater.

VEM may purchase Long Lead-Time Components sufficient to meet all deliveries under the purchase orders and Product forecast in effect at the time the order with the supplier is placed, and may reasonably purchase Minimum Order Inventory even if greater than the amount necessary to meet purchase orders and Product forecast. Economic Order Inventory shall be purchased by VEM only with the prior approval of Customer.

In addition upon Customer’s written request, VEM may from time to time hold Long Lead-Time Components and finished Products in inventory to increase Customer’s sourcing flexibility. The components and quantities of all such inventory and the associated cost will be documented in a separate letter and signed by both VEM and Customer.

Customer will be responsible under the conditions provided elsewhere in this Agreement for all Inventory and Special Inventory purchased by VEM under this Section 2.3.

2.4 Preferred Supplier . Customer shall provide a list of vendors currently approved to provide the materials and components specified in the bill of materials for the Product (the “Approved Vendor List” or “AVL”). VEM shall purchase from vendors on a current AVL the materials and components required to manufacture the Product. Customer shall give VEM every opportunity to be included on AVL’s for materials and components that VEM can supply, and if VEM is competitive with other suppliers with respect to reasonable and unbiased criteria for acceptance established by Customer, VEM shall be included on such AVL’s. If VEM is on an AVL and its prices and quality are competitive with other vendors, Customer will raise no objection to VEM sourcing materials and components from itself. For purposes of this paragraph only, the term “VEM” includes any companies affiliated with VEM.

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3.0 SHIPMENTS, SCHEDULE CHANGE, CANCELLATION

3.1 Shipments . All Products delivered pursuant to the terms of this Agreement shall be suitably packed for shipment in accordance with Customer’s Specifications, marked for shipment to Customer’s destination specified in the applicable purchase order and delivered to a carrier or forwarding agent. Shipment will be F.O.B. VEM’s facility at which time risk of loss and title will pass to Customer. All freight, insurance and other shipping expenses, as well as any special packing expenses not included in the original price quotation for the Products, will be. paid by Customer.

3.2 Quantity Increases and Shipment Schedule Changes . For any accepted purchase order, Customer may (i) increase the quantity of Products, or (ii) reschedule the quantity of Products and their shipment date as provided in the table below:

Maximum Allowable Variance From Purchase Order Quantities/Shipment Dates


# of days before Shipment Date on Purchase Order	Allowable Quantity Increases	Maximum Reschedule Quantity	Maximum Reschedule Period
0-14	0%	0%	0
15-30	0°/a	0%	0
31-60	20%	20%	30 days
61-90	35%	30%	30 days
91-120	50%	50%	60 days

Any purchase order quantities increased or rescheduled pursuant to this Section may not be subsequently increased or rescheduled without the prior written approval of VEM. Allowable quantity increases are subject to material availability. VEM will use reasonable commercial efforts to meet quantity increases.

All other changes in quantity or shipment date beyond the permitted variances set for above, require VEM’s prior written consent and shall be subject to an inventory carrying charge of 1.5% per month of the cost of finished Product, and Inventory and Special Inventory procured to support the changed quantity.

If there are extra costs to meet a reschedule or increase in excess of the above limits, VEM will inform Customer for its acceptance and approval in advance.

3.3 Cancellation . Customer may not cancel any portion of Product quantity of an accepted purchase order without VEM’s prior written approval, not to be unreasonably withheld. If the parties agree upon a cancellation, Customer will pay VEM for Products, Inventory, and Special Inventory affected by the cancellation as follows: (i) 100% of the current price for all finished Products in VEM’s possession, (ii) 110% of the cost of all Inventory and Special Inventory in VEM’s possession and not returnable to the vendor or usable for other customers,

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whether in raw form or work in process, less the salvage value thereof, (iii) 110% of the cost of all Inventory and Special Inventory on order and not cancelable, and (iv) any vendor cancellation charges incurred with respect to Inventory and Special Inventory accepted for cancellation or return by the vendor.

The term “cost” as it relates to Inventory and Special Inventory in this subsection shall mean the cost represented on the bill of materials supporting the most current Product price at the time of cancellation or termination.

VEM will use reasonable commercial efforts to return unused Inventory and Special Inventory and to cancel pending orders for such inventory, and to otherwise mitigate the amounts payable by Customer. Customer shall pay amounts due under this section within ten (10) days of receipt of an invoice. VEM will ship the Products, Inventory and Special Inventory paid for by Customer under this section to Customer promptly upon said payment by Customer. In the event Customer does not pay within ten (10) days, VEM will be entitled to dispose of Products, Inventory and Special Inventory in a commercially reasonable manner and credit to Customer any monies received from third parties. VEM shall then submit an invoice for the balance amount due and Customer agrees to pay said amount within ten (10) days of its receipt of the invoice.

4.0 ENGINEERING CHANGES

Customer may request, in writing, that VEM incorporate engineering changes into the Product. Such request will include a description of the proposed engineering change sufficient to permit VEM to evaluate its feasibility and cost. VEM’s evaluation shall be in writing and shall state the costs and time of implementation and the impact on the delivery schedule and pricing of the Product. VEM will not be obligated to proceed with the engineering change until the parties have agreed upon the changes to the Product’s Specifications, delivery schedule and Product pricing and upon the implementation costs to be borne by the Customer including, without limitation, the cost of Inventory and Special Inventory on-hand and on-order that becomes obsolete.

5.0 TOOLING, NON-RECURRING EXPENSES, MANUFACTURING SOFTWARE

VEM shall provide tooling that is not Product-specific at its expense. Customer shall pay for or obtain and consign to VEM any Product specific tooling and other reasonably necessary non-recurring expenses, to be set forth in VEM’s quotation. If VEM is to conduct Product testing, Customer will provide VEM with applicable and required board-level and completed unit test software and procedures necessary to perform testing of Products. All software related to manufacture or testing of the Products that Customer provides to VEM is and shall remain the property of Customer. Customer grants VEM a license to copy, modify and use such software required to perform VEM’s obligations under this Agreement. All software developed by Customer that is used or useful in connection with the Products shall remain the property of Customer and VEM shall have no right or license to use, copy, modify or distribute any such software.

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6.0 PRODUCT TITLE, INSPECTION AND WARRANTY

6.1 Product Title . The Products delivered by VEM will be inspected as required by Customer within ten (10) days of receipt per Customer’s incoming Acceptance Procedure. If Products are found to be defective in material or workmanship, Customer has the right to reject such Products during said period. Customer may return defective Products. VEM will issue credit for the assembly price plus freight, after obtaining a return material authorization number from VEM to be displayed on the shipping container and completing a failure report. VEM will issue return material authorizations within five (5) days of Customer’s request. Rejected Products will be promptly repaired or replaced, at VEM’s option, and returned. Customer shall bear all of the risk, and all costs and expenses, associated with Products that have been returned to VEM for which there is no defect found. If the Product is source inspected by Customer prior to shipment, Customer will inspect goods within five (5) days of its request date.

6.2 Express Limited Warranty . VEM warrants that the Products-will have been manufactured in accordance with Customer’s applicable Specifications and will be free from defects in workmanship for a period of twelve (12) months from the date of shipment. […***…]. This express limited warranty does not apply to (a) materials consigned or supplied by Customer to VEM; (b) defects resulting from Customer’s Specifications or the design of the Products; (c) Product that has been abused, damaged, altered or misused by any person or entity after title passes to Customer. With respect to first articles, prototypes, pre-production units, test units or other similar Products, VEM makes no representations or warranties whatsoever. Notwithstanding anything else in this Agreement, VEM assumes no liability for or obligation related to the performance, accuracy, specifications, failure to meet specifications or defects of or due to tooling, designs or instructions produced or supplied by Customer and Customer shall be liable for costs or expenses incurred by VEM related thereto. Upon any failure of a Product to comply with the above warranty, VEM’s sole obligation, and Customer’s sole remedy, is for VEM, at its option, to promptly repair or replace such unit and return it to Customer freight prepaid. Customer shall return Products covered by the warranty freight pre-paid after completing a failure report and obtaining a return material authorization number from VEM to be displayed on the shipping container. Customer shall bear all of the risk, and all costs and expenses, associated with Products that have been returned to VEM for which there is no defect found.

VEM MAKES NO OTHER WARRANTIES ON THE PRODUCTS, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH CUSTOMER, AND VEM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7.0 PAYMENT TERMS, ADDITIONAL COSTS AND PRICE CHANGES

7.1 Price and Payment Terms. The price for Products to be manufactured will be agreed by the parties and will be indicated on the purchase orders issued by Customer and accepted by VEM. The initial price shall be as set forth on the Price List attached hereto and incorporated herein. The price for Products may be reviewed periodically by the parties. All

* Confidential Treatment Requested

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prices quoted are exclusive of federal, state and local excise, sales, use and similar taxes, and any duties, and Customer shall be responsible for all such items. Payment for any Products, services or other costs to be paid by Customer hereunder is due thirty (30) days net from the date of invoice and shall be made in lawful U.S. currency. Customer agrees to pay 1.5% monthly interest on ail late payments. Furthermore, if Customer is late with payments, or VEM has reasonable cause to believe Customer may not be able to pay, VEM may require prepayment or delay shipments or suspend work until assurances of payment satisfactory to VEM are received.

7.2 Credit Terms . VEM will, in good faith, review Customer’s creditworthiness periodically and may provide more favorable terms once it feels it is prudent: to do so. Customer agrees to provide all reasonably necessary financial information required for VEM to make a proper assessment of creditworthiness.

7.3 Additional Costs . Customer is responsible for (a) any expediting charges reasonably necessary because of a change in Customer’s requirements beyond the permitted variances set forth in paragraph 3.2 above, which charges are preapproved, (b) any overtime or downtime charges incurred as a result of delays in the normal production or interruption in the workflow process and caused by: (1) Customer’s change in the Specifications; or (2) Customer’s failure to provide sufficient quantities or a reasonable quality level of materials where applicable to sustain the production schedule. Customer caused delays as a result of Customer-supplied materials will result in a special charge to the Customer of 1.5% of the sales price of the delayed Product for each month, or part thereof delayed.

7.4 Price Changes . The price of Products to Customer may be increased by VEM if (a) the market price of fuels, materials, raw materials, equipment, labor and other production costs increase beyond normal variations in pricing as demonstrated by VEM, and (b) the parties agree to the increase. Price increases agreed to by the parties will be applied to all purchase orders accepted by VEM after the date of such agreement.

7.5 Cost Reductions . VEM agrees to seek ways to reduce the cost of manufacturing Products by methods such as elimination of components, obtaining alternate sources of materials, redefinition of specifications, and improved assembly or test methods. Upon implementation of such ways that have been initiated by VEM, VEM will receive [...***...]. Customer will receive [...***...] upon implementation of such ways initiated by Customer.

8.0 TERM AND TERMINATION

8.1 Term . The term of this Agreement shall commence on the date hereof above and shall continue for one (1) year thereafter until terminated as provided in Section 8.2 or 10.9. After the expiration of the initial term hereunder (unless this Agreement has been terminated), this Agreement shall be automatically renewed for separate but successive one-year terms unless either party provides written notice to the other prior to the date that is ninety (90) days prior to the end of any term that it does not intend to renew this Agreement.

8.2 Termination . This Agreement may be terminated by either party (a) for any reason upon six (6) months written notice to the other party, or (b) if the other party defaults in

* Confidential Treatment Requested

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any payment to the terminating party and such default continues without a cure for a period of fifteen (15) days after the delivery of written notice thereof by the terminating party to the other party, (c) if the other party defaults in the performance of any other material term or condition of this Agreement and such default continues unremedied for a period of thirty (30) days after the delivery of written notice thereof by the terminating party to the other party, or (d) pursuant to Section 10.9. Expiration or termination of this Agreement under any of the foregoing provisions shall not affect the amounts due under this Agreement by either party that exist as of the date of expiration or termination, and as of such date the provisions of Section 3.3 shall apply with respect to payment and shipment to Customer of finished Products, Inventory, and Special Inventory in existence as of such date, EXCEPT THAT if Customer terminates this Agreement on the basis of a breach by VEM, the provisions of Section 3.3 (ii) and (iii) shall be changed to read 100% and the provisions of Section 3.3 (iv) and (v) shall not apply. Notwithstanding termination or expiration of this Agreement, Sections 6.2, 8.0, 9.0, and 10.0 shall survive said termination or expiration.

9.0 LIABILITY, LIMITATION

9.1 Patents, Copyrights, Trade Secrets, Other Proprietary Rights . Customer shall defend, indemnify and hold harmless VEM from all claims, liabilities, costs, damages, judgments and attorney’s fees resulting from or arising out. of any alleged and/or actual infringement or other violation of any patents, patent rights, trademarks, trademark rights, trade names, trade name rights, copyrights, trade secrets, proprietary rights and processes directly relating to VEM performance of the Work. VEM shall promptly notify Customer in writing of the initiation of any such claims, give Customer an adequate opportunity to defend, including complete control of such defense, and provide reasonable assistance to Customer, at Customer’s expense,, in connection with the defense and settlement of any such claim.

THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES TO EACH OTHER CONCERNING INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.

9.2 Product Liability . Customer agrees that, if notified promptly in writing and given sole control of the defense and all related settlement negotiations, Customer will defend VEM from any claim or action and will hold VEM harmless from any loss, liability, damage or injury, including death, which arises from any alleged defect of any Products. .

9.3 No Other Liability . IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE, BUT EXCLUDING LIABILITY ASSERTED ON THE BASE OF BREACH OF CONFIDENTIALITY OBLIGATIONS.

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10.0 MISCELLANEOUS

10.1 Confidentiality . The exchange of confidential information of each party shall be governed by the Confidentiality Agreement attached hereto..

10.2 Entire Agreement . This Agreement, including the Confidentiality Agreement attached hereto, constitutes the entire agreement between the Parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions. Customer shall hold the existence and terms of this Agreement confidential, unless it obtains VEM’s express written consent otherwise. In all respects, this Agreement shall govern, and any other documents relating to the transactions contemplated by this Agreement, including, without limitation, preprinted terms and conditions on Customer’s purchase orders, shall be of no effect. This Agreement will be deemed to have been drafted by both parties.

10.3 Amendments . This Agreement may be amended only by written consent of both parties.

10.4 Independent Contractor . Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

10.5 Expenses . In the event a dispute between the parties hereunder with respect to this Agreement must be resolved by litigation or other proceeding or a party must engage an attorney to enforce its right hereunder, the prevailing party shall be entitled to receive reimbursement for all associated reasonable costs and expenses (including, without limitation, attorneys fees) from the other party.

10.6 Governing Law, Venue . This Agreement shall be governed by and construed under the laws of the State of California, excluding its choice of law principles. The parties consent to the exclusive jurisdiction of the state and Federal courts in Santa Clara County, California.

10.7 Successors, Assignment . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives. Neither party shall have the right to assign or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of the other party, not to be unreasonably withheld.

10.8 Force Majeure . In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, materials unavailability, or any other cause beyond the reasonable control of the party invoking this section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, including performing the work at a satellite facility, such party shall give prompt written notice to the other party, its performance

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shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. During the period of delay or inability to perform, Customer may obtain from other sources, Products that are included on accepted purchase orders, and those Products obtained shall be cancelled from purchase orders issued to VEM with no penalty to Customer. Regardless of the excuse of Force Majeure, if such party is not able to perform within thirty (30) days after such event, the other party may terminate the Agreement.

10.9 Notices . All notices required or permitted under this Agreement ill 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 above or to such other address as may be designated by a party by giving written notice to the other party pursuant to his section.


ACCEPTED AND AGREED TO:

CUSTOMER:		VARIAN, INC. ELECTRONICS MANUFACTURING

/s/ G. L. Waite		/s/ Wilson Rudd
By:	Gary Waite	By:	Wilson Rudd
Title:	Vice President, Manufacturing	Title:	Vice President

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Exhibit 10.22

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

For Purchases and Leases of Direct-Ordered and Distributed Products

Subject to Competitive Bid Process

PULSE OXIMETRY & RELATED PRODUCTS

CAPITAL EQUIPMENT SUPPLIER AGREEMENT

between

NOVATION, LLC

and

Masimo

MS50662

NOVATION, LLC

CAPITAL EQUIPMENT SUPPLIER AGREEMENT

1. I NTRODUCTION .

a. Purchasing and Leasing Opportunities for Members . Novation, LLC (“Novation”) is. engaged in providing purchasing opportunities with respect to high quality products and services to participating health care providers (“Members”). A list of Members entitled to participate in Novation’s programs through their membership or other participatory. status in any of the following client organizations: VHA Inc., University HealthSystem Consortium, and HealthCare Purchasing Partners International, LLC (collectively, “Clients”), is maintained in an electronic database (“Novation Database”). Novation is acting as the exclusive agent for each of the Clients and certain of each Client’s subsidiaries and affiliates, respectively (and not collectively), with respect to this Agreement. Novation and the Clients and their subsidiaries and affiliates will not be responsible or liable for any breach of any purchasing commitment or for any other actions of any Authorized Distributor or Member. In addition, none of the Clients will, be responsible or liable for the obligations of another Client or its subsidiaries or affiliates or ‘the obligations of Novation or Supplier under this Agreement. All Clients, Authorized Distributors and Members are intended third party beneficiaries -of this Agreement.

b. Supplier . Supplier is the manufacturer of the equipment and other direct-ordered products (collectively, “Equipment”), and/or parts, supplies and other distributed products (collectively, “Supplies”), and/or the provider of services (“Services”), all as listed on Exhibit A. The Equipment, Supplies, and/or Services are collectively referred to herein as “Products” and any specifications are attached hereto as Exhibit B (“Non-Price Specifications”).

c. Authorized Distributors . Novation and/or the Clients have entered into arrangements with certain distributors (“Authorized Distributors”) that have agreed to distribute the Supplies to Members. A current listing of Authorized Distributors is maintained by Novation in the Novation Database. A distributor will: become an “Authorized Distributor” for purposes of this Agreement at the time Novation adds the distributor to the Novation Database and will cease to be an “Authorized Distributor” for such -purposes at the time Novation deletes the distributor from the Novation Database. Any limitations on the scope of an Authorized Distributor’s authority will also be set forth in the Novation Database. By reason of requirements of law, regulation or internal policy of certain Members, from time to time Novation may identify underutilized businesses as Authorized Distributors.

2. C ONTRACT A WARD .

a. Letter of Award . By executing and delivering the Letter of Award attached hereto as Exhibit C (“ Award Letter ”) to Supplier, Novation will have accepted your written offer to the Invitation to Bid (“ Bid ”), and Novation and Supplier therefore agree that Supplier will make the Equipment and Services available for purchase and/or lease directly by the Members as of the effective date (“ Effective Date ”) in the Award Letter in accordance with the terms of this Agreement for the term (“ Term ”) stated in the Non-Price Specifications and for

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any renewal terms set forth in the Non-Price Specifications at the agreed upon prices under this Agreement (“ Award Prices ”) and will make the Supplies available for purchase by the Authorized Distributors at the Award Prices for resale to the Members and the forms of purchase, lease, license, financing or servicing agreements, if any, attached hereto as Exhibit D (collectively, “ Forms ”); provided, however, that Novation’s award of this Agreement to Supplier will not constitute a commitment by any person to purchase or lease any of the Products. Supplier will not impose any purchasing or leasing commitment on any Member or Authorized Distributor as a condition to the Member’s or Authorized Distributor’s purchasing of any Products pursuant to this Agreement. Supplier acknowledges that, in making its award to Supplier, Novation has materially relied on all representations, warranties and agreements made by Supplier and contained in this Agreement as part of the Bid and that all such representations, warranties and agreements will survive acceptance of the Bid

b. Use of Names, Etc . Supplier agrees that it will not use in any way in its promotional, informational or marketing activities or materials (i) the names, trademarks, logos, symbols or a description of the business or activities of Novation or any Client, Authorized Distributor or Member without in each instance obtaining the prior written consent of the person owning the rights thereto; or (ii) the award or the content of this Agreement without in each instance obtaining the prior written consent of Novation.

c. Optional Purchasing or Leasing Arrangements . Supplier shall reserve the right to contract directly with each Member for Products included in this Agreement in exceptional circumstances aside from the Supplier’s optional purchasing arrangements included in Exhibit D; provided, however, Supplier shall give prior notice to Novation in writing of such exceptional circumstances and the essential terms of such agreement. Additional value required in such exceptional cases will. be defined in an individual contract that will, at Novation’s . discretion, be an exhibit to the Supplier Agreement. Supplier shall maintain the Reporting Requirements and fees (“ Fees ”) payable to Novation in Sections 5 and 7 for Products purchased through such independent contracts in recognition of the Novation contribution to and support for any, such exceptional independent arrangement required. In addition, Supplier shall obtain Novation’s written consent prior to offering to sell to any Member, or to any Authorized Distributor purchasing for resale to any Member, any Product covered by this Agreement, which sale is contingent, in, whole or part, on such Member’s or Authorized Distributor’s purchase of a product that is not covered by this Agreement, or vice versa. Notwithstanding Novation’s written consent to such a sale, every Member and Authorized Distributor shall always have the option to purchase Products covered by this Agreement by themselves ( i.e. , not contingent on the purchase of another product), at the Award Prices.

d. Market Competitive Pricing and Terms .

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Pricing . Supplier will lower the Award Prices or increase any discount applicable to the purchase of the Products as necessary to assure market competitiveness, and in addition Supplier, agrees to retrospectively, from the time of notification by Novation, lower the Award Prices or increase any discount applicable to the purchase of the Products for a specific member or group of members at all times in the event Supplier offers pricing that is lower than pricing

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offered hereunder to any similarly situated competitor of such member or group of members.

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Non-price Terms . Supplier will improve non-price terms, such as quality, technology. or other non-price financial value as necessary to assure . market competitiveness, and in addition Supplier agrees to adjust non-price terms for a specific member or group of members at all times in the event Supplier offers more favorable non-price terms to any competitor of such member or group of members.

If at any time during the Term Novation receives information from any source that indicates. Supplier’s pricing or non-price terms are not market competitive, Novation may provide written notice of such information to Supplier, and Supplier will, within five (5) business days for Novation’s private label Products and within ten (10) business days for all other Products, advise Novation in writing of all adjustments necessary to assure market competitiveness.

e. Notification of Changes in Pricing Terms . Supplier will provide not less than sixty (60) days’ prior written notice to Novation, with respect to all Products, and not less than forty five (45) days’ prior written notice to all Authorized Distributors, with respect to Supplies, or all Members, with respect to Equipment and Services, of any change in pricing terms (such as list prices, discounts or pricing tiers or schedules) permitted or required by this Agreement.

f. Underutilized Businesses . Certain Members may be. required by law, regulation and/or internal policy to do business with underutilized businesses and Supplier will assist Novation in helping. Members meet these requirements by complying with all Novation policies and programs with respect to such businesses. Novation, in its discretion, may make an award and/or negotiate another agreement with a HUB in addition to any sole or multi-source award.

g. E-Commerce Business . Certain Members have chosen to utilize the services of the Marketplace@Novation™ through Novation’s relationship with Neoforma, Inc. (“Neoforma”), to transact business associated. with this Agreement with Supplier. To assist Novation in helping Members meet those needs, Supplier agrees to sign, prior to the issuance of any Award letter, and comply with Novation E-Commerce Agreement attached hereto as Exhibit F and support Novation’s programs with respect to e-commerce

3. P RODUCT . S UPPLY .

a. Delivery and Invoicing . On and after the Effective Date, Supplier agrees to promptly deliver Equipment and Services ordered by the Members to the Members, and Supplies ordered by the Authorized Distributors on behalf of the Members to the Authorized Distributors, FOB origin, and will direct its invoices to the ordering organization in accordance with this Agreement. Supplier agrees to prepay and add charges, if any, for transporting Products to either the Authorized Distributors or the Members. Supplier will, at Member’s option, provide insurance on Products during shipment, to be prepaid and invoiced to the Member with the cost of freight. Payment terms are specified in Exhibit B. Within seven (7) calendar days after receipt of a purchase order from, a Member, Suppler will provided estimated lead time from the date of a Member’s purchase order until delivery of the Product at the Member’s location. The actual

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delivery lead times may be increased by the ordering Member based on its needs. Unless otherwise agreed, Members will pay Supplier’s. invoice within 30 days of receipt.

b. Return or Recall of Products . Any Member or Authorized Distributor, in addition to and not in limitation of any other rights and remedies, will have the right to return Products to Supplier, in accordance with Supplier’s return goods policy as attached hereto as Exhibit G. In addition, Supplier will reimburse Members for any cost associated with any Product corrective action, withdrawal or recall requested by Supplier or required by any governmental entity. In the event a product recall or a court action impacting supply occurs, Supplier will notify Novation in writing within forty-eight (48) hours for FDA Class I or Class II recalls or action and within five (5) business days of any other such recall or action. Supplier’s obligations in this Subsection will survive the expiration or earlier termination of this Agreement.

c. Supplies . Supplies necessary for the operation of the Equipment will be made available by Supplier to the Authorized Distributors for resale to the Members at the prices or discounts listed on Exhibit A. All warranties and guarantees will remain in force regardless of the source from which the Member purchases Supplies.

d. Manuals/Schematics/Inspection Procedures . Supplier will provide; to the Members two complete and unabridged sets of operator service manuals for each model of Equipment purchased or leased, including all, subassemblies and peripheral devices (including those manufactured by others). The technical service manuals furnished to the Members will be sufficient for normal servicing of Equipment in or out of warranty.

e. Site Preparation . Supplier will `provide the Members with a specific description of pre-installation planning and site preparation services and-site preparation costs at the time the Member requests a quote from Supplier.

f. Installation/Assembly . When the Member requests a quote from Supplier, Supplier will provide as part of the quote a detailed description of the installation and/or assembly requirements, including, but not limited to, electrical, mechanical (HVAC), structural (including seismic where applicable), and plumbing requirements. Based on past installations and a review of the Member’s site, Supplier will provide an estimate of the cost that the Member will bear for each component of the installation and/or assembly, regardless if supplied by Supplier or the Member. The Member will specify whether Supplier or the Member will be responsible for the installation and/or assembly. If Supplier is specified as. having responsibility for the installation and/or assembly, Supplier will include estimated dates and times for installation and/or assembly as part of the agreed delivery schedule referred to in Subsection 3.a. above. If the Member will be taking the responsibility for installation and/or assembly, Supplier will contact the individual selected by the Member that will be responsible for the installation and/or assembly of the Equipment.

g. Installation/Environmental Issues . Supplier will bear all costs associated with the removal of packaging, crating and other material associated with the installation of the Equipment. Supplier, at the discretion of the Member, will remove the retired equipment at a cost

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previously agreed to with the Member, including any expenses associated with the proper disposal of hazardous or other wastes.

h. Member Services . Supplier will consult with each Member to identify the Member’s policies relating to access to facilities and personnel. Supplier will comply with such policies and will establish a specific timetable for sales calls by sales representatives and, if applicable, service calls by service representatives, to satisfy the needs of the Member. Supplier will promptly respond to Members’ reasonable requests for verification of purchase or leasing history.

i. Training . Supplier will, unless otherwise agreed to by Novation, at no cost for tuition to the Member, allow a minimum of two (2) of the Member’s staff members to attend Supplier’s technical service training at a mutually agreed upon location within sixty (60) days after Member’s written request. Supplier will also allow the Member to reproduce all training material for use by the Member’s personnel at the Member’s facility. In addition, Supplier will provide in-service training for both operators and technical service staff of the Member at the Member’s- site at Supplier’s own cost as follows, unless otherwise agreed to by Novation: one week of training on-site at Member’s site prior to installation and as agreed by Member and Supplier for up to sixty (60) days after installation. Supplier will provide follow-up in-service training as agreed by Supplier and the Member for the life of the Equipment at no additional charge regardless of where the training is performed.

4. P RODUCT Q UALITY .

a. Free From Defects . Supplier warrants the Products, including, but not limited to, all attachments, subsystems and components thereof, against defects in material, workmanship, design and manufacturing for the warranty period set forth in Exhibit E attached hereto (“Warranty Period”). Supplier will make all necessary arrangements to assign such warranty to the Members. Supplier further represents and warrants that the Products will conform to the specifications, drawings, and samples furnished by Supplier or contained in the Non-Price Specifications and will be safe for their intended use. If any Products are defective and a claim is made by a Member or an Authorized Distributor on account of such defect during the Warranty Period, Supplier will, at the option of the Member or the Authorized Distributor, either replace the defective Products or credit the Member or the Authorized Distributor. Supplier will bear all costs of returning and replacing the defective Products, as well as all risk of loss or damage to the defective Products from and after the time they leave the physical possession of the Member or the Authorized. Distributor. The warranties contained in this Subsection will survive any inspection, delivery, acceptance or payment by a Member or an Authorized Distributor. This Subsection and the obligations contained herein will survive the expiration or earlier termination of this Agreement. The remedies set forth in this Subsection are in addition to and not a limitation on any other rights or remedies that may be available against Supplier.

b. New Technology .

(i)

During the Term, Supplier will disclose to Novation new technology developed by Supplier which provides the same function as the Products. Upon introduction of the new technology by Supplier, each Member will

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be provided the option to exchange or upgrade any Product purchased hereunder for the new technology at mutually agreed pricing and upon the terms and conditions set forth in Exhibit B attached hereto. In the event Supplier fails to provide such option to the Members, (1) Novation will have the right to terminate any or all of the Products which have been superceded by such new technology providing the same function as the Products or (2) Novation may elect at its discretion to contract with one or more additional suppliers of comparatively similar new technology.

(ii)

If at any time during the Term new technology (as defined by a Novation Council) for a product becomes available from any source which provides incremental patient care benefits and/or incremental safety benefits over technology currently available under this Agreement, Novation shall provide written notice of such information to Supplier and may elect to contract with a third party vendor, or terminate the Agreement and re-bid the category so Members have access to New Technology at all times. Such action will not constitute a . breach of this Agreement by Novation.

c. Warranty Service . All warranty repairs will have twenty-four (24) hour coverage at no additional charge where the Member will be allowed to determine whether the service response may be postponed until the following working day. During the Warranty Period, in the event the Equipment is inoperable for any reason, Supplier agrees to provide a loaner of the Equipment of identical (compatible with the system the Member is using) or superior type to the Member at its site at no additional charge during the term of this Agreement. The loaner equipment will be available and delivered to the Member’s site within twenty-four (24) hours of request at no charge to Member.

d. Replacement Parts . Replacement parts supplied by Supplier pursuant to a qualified service provider agreement to be separately executed by Supplier and Member at any time, whether during or after the Warranty Period or the term of any service agreement, will be newly manufactured parts or assemblies, unless the Member agrees otherwise. In the case where new parts are not available, the service representative may install rebuilt parts in order to make the unit operational. Within thirty (30) days after the repair, the rebuilt parts must be replaced with newly manufactured parts. The Member may retain parts removed from the Equipment and all parts that are not eligible for or are not returned by the Member for Supplier credit will remain the property of the Member. In all cases where Supplier is permitted to charge the Member for parts, Supplier will only replace and charge for parts necessary to bring the Equipment to operating condition. Supplier will warrant replacement parts and labor associated with such replacement parts for the period of time set forth in Supplier’s standard warranty.

e. Service Response Time . Supplier guarantees a response time of one (1) hour by .phone and for onsite as agreed. to by the Member for all warranty, contract or time and materials service calls requested by any Member during the life of the Equipment.

f. Uptime Guarantee . For any calendar quarter during the Warranty Period and the term of any service agreement, Supplier guarantees that the Equipment will maintain a level of uptime equal to or better than 98%. Uptime will be calculated using the following formula:

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Uptime =		(T – TNF) X 100
Uptime =		T

where “T” is the total number of hours that the Equipment is. typically used per quarter (determined by multiplying the number of hours per day that the Equipment is typically used by the number of days per week that the Equipment is typically used, and multiplying the result by 13 weeks in a quarter), and “TNF” is the number of hours the Equipment or any component of the Equipment is not functional during the quarter (the hours calculated will only include those hours that the Equipment would typically be in use). If any portion of the total functionality of the Equipment is unavailable for operational use, the Equipment will be considered down. Downtime scheduled for preventive maintenance or any other scheduled event, including those for the convenience of Member, will not be included in the downtime calculation.

Member will calculate uptime after each calendar quarter. If uptime is less than 98%, any lost revenue suffered by the Member for downtime beyond the allowable 2% during the quarter will be paid by Supplier to the Member. Lost revenue will be calculated by multiplying the number of procedures that would have been performed or the number of times the Equipment would have been used during any downtime times the Member’s current charge rate per procedure or per use. The Member will give written notice to Supplier of its failure to meet the uptime requirement and the amount of lost revenues, and Supplier will pay such amount to the Member within thirty (30) days after receipt of the notice. In addition, Supplier will extend the Warranty Period or the service agreement without charge by one week for every hour the Equipment or component thereof is not operational beyond the allowable 2%.

g. Preventive Maintenance . There is no preventive maintenance associated with the Equipment or Supplies.

h. Upgrades . Commercially reasonable arrangements will be made to install all software upgrades within two (2) weeks after the release of any software upgrade.

i. Customization Software . Pricing relating to the customization of software and additional charges that the Member will incur for annual maintenance, training, documentation, backup, etc. is attached hereto as Exhibit A.

j. Operational Software . The form of software licensure agreements available to the Members will be included as part of any quote requested by a Member. All software necessary to operate the Equipment, unless otherwise provided in any exhibit hereto, will be licensed to the Member upon delivery of the Equipment. All new operational software that provides no additional functionality will be provided to the Member, at no charge, throughout the Warranty Period and thereafter throughout the term of any service agreement.

k. Diagnostic Software . There is no diagnostic software for Supplier Products.

l. Data Conversion/Interfaces . In the event that the Equipment requires conversion of data at the time of installation or assembly, Supplier agrees to perform this conversion either manually or electronically at no charge to the Member. A schedule of Supplier’s pricing for performing data conversion thereafter during the Warranty Period and after

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the warranty has expired is included in Exhibit A attached hereto. The data conversion will include all data requested by the Member in writing. Supplier will inform Member, in writing, of the length of time required to perform the conversion prior to the issuance of the purchase order and will perform the conversion within such time. Supplier will also include all interfaces requested by the Member at no charge, unless otherwise provided in Exhibit A, to connect the Equipment to other information systems owned by the Member and its affiliates.

m. Service Contract Cancellation . The Member reserves the right to cancel any service agreement, without cause or penalty, with thirty (30) days prior written notification to Supplier. Payment reimbursement will be prorated and Supplier will separate costs for preventive maintenance and repair for the purpose of allocating expenses. Supplier will be required to leave the Equipment in certifiable condition as deemed by the Member. Supplier will not cancel the contract without a minimum of sixty (60) day’s prior written notification to the Member. Cancellation of the contract will not affect Supplier’s response time and quality of support nor result in other penalties if. the Member elects to use Supplier for time and materials repairs, perform the work in-house or obtain- service from others.

n. Product Compliance . Supplier represents and warrants to Novation, the Clients, the Authorized Distributors and the Members that the Products are, if required, registered, and will not, be distributed, sold, leased or priced by Supplier in violation of any federal, state or local law. Supplier represents and warrants that as of the date of delivery to the Authorized Distributors, with respect to Supplies, or the Members, with respect to Equipment and Services, all Products will not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and will not violate or cause a violation of any applicable law, ordinance, rule, regulation or order. Supplier agrees it will comply with all applicable Good Manufacturing Practices and Standards contained in 21 C.F.R. Parts 210, 211, 225, 226, 600, 606, 610, 640, 660, 680 and 820. Supplier represents and warrants that it will provide adequate warnings and instructions to inform users of the Products of the risks, if any, associated with the use of the Products. Supplier’s representations, warranties and agreements in this Subsection will survive the expiration or earlier termination of this Agreement.

o. Product Condition . Unless otherwise stated in the Non-Price Specifications or, unless agreed upon by a Member in connection with Products it may order, all Products will be new. Products, which are demonstrators, used, obsolete, seconds, or which have been discontinued are unacceptable unless otherwise specified in the Non-Price Specifications or the Member accepts delivery after receiving notice of the condition of the Products. A description of and pricing for demonstrators or refurbished Products is attached hereto as Exhibit A.

p. End-user license agreement . The Supplier End-user license agreement is included in the Supplier Warranty in Exhibit E.

R EPORTS A ND O THER I NFORMATION R EQUIREMENTS . Within twenty (20) days after the end of each full and partial month during the Term (“Reporting Month”), Supplier will submit to Novation a report in form and content reasonably satisfactory to Novation (“Net Sales Report”) and any other information during the time period required as set forth in the Information Requirements Guidebook. Such Guidebook may be found at the Novation website at www.novationco.com.

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6. O BLIGATIONS O F N OVATION .

a. Information to Members and Authorized Distributors . After issuing the Award Letter, Novation, in conjunction with the Clients, will deliver a summary of the purchasing and/or leasing arrangements covered by this Agreement to each Member and each Authorized Distributor and will, from time to time, at the request of Supplier, deliver to each Member and each Authorized Distributor reasonable and appropriate amounts and types of materials supplied by Supplier to Novation which relate to the purchase or lease of the Products.

b. Marketing Services . Novation, in conjunction with the Clients, will market the purchasing and/or leasing arrangements covered by this Agreement to the Members. Such promotional services may include, as appropriate, the use of direct mail, contact by Novation’s field service delivery team, member support services, and. regional and national meetings and conferences. As appropriate, Novation, in conjunction with the Clients, will involve Supplier in these promotional activities by inviting Supplier to participate in meetings and other reasonable networking activities with Members.

7. F EES .

a. Calculation . Supplier will pay to Novation, as the authorized collection agent for each of the Clients and certain of each Client’s subsidiaries and affiliates, respectively (and not collectively), Fees belonging to any of the Clients or certain of their subsidiaries or affiliates equal to the Agreed Percentage of all Net Sales and net lease revenues of the Products to the Members directly or indirectly from Supplier, whether under the. pricing and other terms of this Agreement or under the terms of any other purchasing, leasing, licensing, financing or pricing arrangements that may exist between the Members and Supplier. As used herein, Net Sales shall mean invoiced sales of Products less related Product returns. The “Agreed Percentage” will be defined in the Award Letter. For Members that are also participants in another group purchasing organization or other similar organization to which Supplier also pays administrative fee under business relationship that is similar to its relationship with Novation established by this Agreement (a “GPO”), Supplier shall only be obligated to pay Fees hereunder for Member purchases if the Member has submitted .a Letter of Participation, included as an attachment in Exhibit B establishing that it is purchasing under the terms of this Agreement and not its agreement with the other GPO.

b. Payment . On or about the Effective Date, Novation will advise Supplier in writing of the amount determined by Novation to be Supplier’s monthly estimated Fees. Thereafter, Supplier’s monthly estimated Fees may be adjusted from time to time upon written notice from Novation based on actual purchase data. No later than the tenth (10th) day of each month, Supplier will remit the monthly estimated Fees for such month to Novation. On a calendar quarterly basis, the payment shall be adjusted to reflect the reconciliation between the actual Fees payable with the estimated Fees actually paid. Such, reconciliations will be made within forty (40) days after the close of each calendar quarter.

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The check amount should be reconcilable with the Fee calculation on the applicable sales and revenue report. The reconciliation of the previous quarters’ estimated payments should be adjusted against the appropriate monthly estimated payment as scheduled above. Please also include this reconciliation information on the check remittance advice.

The following is an example of the reconciliation payment that would have been made for the first quarter of the year 2003. It shows the information that a supplier must specify on the remittance advice of a quarterly Fee reconciliation check. All other non-reconciliation months would require only the first three columns of information below to accompany payment.

Agreement
Estimated

Estimated

Payment

Month/Year

01/2003
Reconciliation

02/2003
Reconciliation

03/2003
Reconciliation

Total

MS80019

[...***...]

05/2003

[...***...]

Fee checks must be made payable to Novation, LLC and sent to:

If Sent, By First Class Mail :

Novation, LLC

75 Remittance Dr., Suite 1420

Chicago, IL 60675-1420

If Sent Via Courier (i.e., Federal Express, United Parcel Service, Messenger):

The Northern Trust Company

350 North Orleans Street

Receipt & Dispatch 8th Floor

Chicago, IL 60654

Attn: Novation, LLC, Lockbox Number 1420

Telephone No. (312) 444-3576

On the airbill please remember to list the bank’s telephone number, as recipient at this location You should also include your telephone number as the sender.

IMPORTANT REMINDER: ALL checks for Fees should be made payable to Novation, LLC , regardless of whether they are sent first-class mail or by courier. Under no circumstances should checks be made payable to The Northern Trust Company.

* Confidential Treatment Requested

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8. C OMPLIANCE W ITH L AW A ND G OVERNMENT P ROGRAM P ARTICIPATION .

a. Compliance With Law . Supplier represents and warrants that after due inquiry, it is, and for the Term shall be, in compliance with all federal, state and local statutes, laws, ordinances and regulations applicable to it (“Legal Requirements”) which are material to the operation of its business and the conduct of its affairs or, whether or not material to the operations of Supplier’s business and the conduct of its affairs relate in any way to Supplier’s sales of Product to Members or any contract with Novation, including Legal Requirements pertaining to the safety of the Products, occupational health and safety, environmental protection, nondiscrimination, antitrust, and equal employment opportunity. In the event of Supplier’s failure to comply with the foregoing, Novation may, in addition to any other legal remedy, have the right to immediately remove. from this Agreement any or all of the Product(s) subject to. such failure, with notice to Supplier, or to terminate this Agreement in its entirety pursuant to Section 12.a. During the Term, Supplier will: (1) promptly notify Novation of any lawsuits, claims, administrative actions or other proceedings asserted or commenced against it which assert in whole or in, part that Supplier is in noncompliance with any Legal Requirement which is material to the operation of its business and the conduct of its affairs or, whether or not material to the operations of Supplier’s business and the conduct of its affairs relate in any way. to Supplier’s sales of Product to Members or any contract with Novation, and (2) promptly provide Novation, with true and correct copies of all written notices of adverse findings from the U.S. Food and Drug Administration (“FDA”) and all written results of FDA inspections which pertain to the Products.

b. Government Program Participation . Supplier represents and warrants that it is not excluded from participation, and is not otherwise ineligible to participate, in a “Federal health care program as defined in 42 U.S.C. § 1320a-7b(f) or in any other government payment .program. In the event Supplier is excluded from participation, or becomes otherwise ineligible to participate in any such program during the Term, Supplier will notify Novation in writing within three (3) days after such event, and upon the occurrence of such event, whether or not such notice is given to Novation, Novation may immediately terminate this Agreement upon written notice to Supplier.

9. I NSURANCE .

a. Policy Requirements . Supplier will maintain and keep in force during the Term product liability, general public liability, and property damage insurance against any insurable claim or claims which might or could arise regarding Products purchased or leased from Supplier. Such insurance will contain a minimum combined single limit of liability for bodily injury. and property damage in the amounts of not less than $2,000,000 per occurrence for product liability and $1,000,000 per occurrence otherwise, and $10,000,000 in the aggregate, and will name Novation, the Clients, the Members and the Authorized Distributors, as their interests may appear, as additional insureds. Supplier will provide to Novation in its Bid and thereafter within fifteen (15) days. after Novation’s request, an insurance certificate indicating the foregoing coverage, issued by an insurance company licensed to do business in the relevant states and signed by an authorized agent.

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b. Self-Insurance . Notwithstanding anything to the contrary in Subsection a above, Supplier may maintain a self-insurance program for all or any part of the foregoing liability risks, provided such self-insurance policy in all material respects complies with the requirements applicable to the product liability, general public liability and property damage insurance set forth in Subsection a.

c. Amendments, Notices and Endorsements . Supplier will not amend, in any material respect that affects the interests of Novation, the Clients, the Members or the Authorized Distributors, or terminate said liability insurance or self insurance program except after thirty (30) days’ prior written notice to Novation and will provide to Novation copies of all notices and endorsements as soon as practicable after it receives or gives them.

10.

R ELEASE AND INDEMNITY . SUPPLIER WILL RELEASE , INDEMNIFY , HOLD HARMLESS , AND , IF REQUESTED , DEFEND N OVATION , THE CLIENTS , THE MEMBERS AND THE AUTHORIZED . D ISTRIBUTORS , AND THEIR RESPECTIVE OFFICERS , DIRECTORS , REGENTS , AGENTS , SUBSIDIARIES , AFFILIATES AND EMPLOYEES ( COLLECTIVELY , THE “I NDEMNITEES ”), FROM AND AGAINST ANY THIRD PARTY CLAIMS , LIABILITIES , DAMAGES , ACTIONS , COSTS AND EXPENSES ( INCLUDING , WITHOUT LIMITATION , REASONABLE ATTORNEYS ’ FEES , EXPERT FEES AND COURT COSTS ) OF ANY KIND OR NATURE , WHETHER AT LAW OR IN EQUITY , ARISING FROM . OR CAUSED IN ANY PART BY (1) THE BREACH OF ANY REPRESENTATION , WARRANTY , COVENANT OR AGREEMENT OF SUPPLIER CONTAINED IN THIS AGREEMENT OR IN THE BID ; (2) THE CONDITION OF ANY PRODUCT , INCLUDING A DEFECT IN MATERIAL , WORKMANSHIP , DESIGN OR MANUFACTURING ; OR (3) THE WARNINGS AND INSTRUCTIONS ASSOCIATED WITH ANY PRODUCT . IN ADDITION , SUPPLIER REPRESENTS AND WARRANTS THAT SALE OR USE OF THE PRODUCTS WILL NOT INFRINGE ANY UNITED STATES PATENT AND WILL , AT ITS OWN EXPENSE , DEFEND EVERY SUIT WHICH WILL ‘ BE BROUGHT AGAINST N OVATION , THE CLIENTS , OR A MEMBER FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT BY REASON OF THE SALE OR USE OF THE PRODUCTS AND WILL PAY ALL COSTS , DAMAGES AND PROFITS RECOVERABLE IN ANY SUCH SUIT . THIS SECTION AND THE OBLIGATIONS CONTAINED HEREIN WILL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT . THE REMEDIES SET FORTH IN THIS SECTION ARE IN ADDITION TO AND NOT A LIMITATION ON ANY OTHER RIGHTS OR REMEDIES THAT MAY BE AVAILABLE AGAINST SUPPLIER . S UPPLIER SHALL HAVE NO LIABILITY OR RESPONSIBILITY OF ANY KIND TO ANY INDEMNITEE UNDER THIS SECTION (“ INDEMNIFICATION ”) UNLESS SUCH INDEMNITEE ( I ) PROMPTLY NOTIFIES SUPPLIER OF SUCH CLAIMS -, ( H ) GIVES SUPPLIER AN ADEQUATE . OPPORTUNITY TO DEFEND ,: INCLUDING , COMPLETE CONTROL OF SUCH DEFENSE , AND ( III ). PROVIDES REASONABLE ASSISTANCE TO SUPPLIER , AT SUPPLIER ’ S EXPENSE AND REQUEST , IN CONNECTION WITH THE DEFENSE AND SETTLEMENT OF ANY SUCH CLAIM . SUPPLIER SHALL HAVE NO LIABILITY FOR SETTLEMENTS MADE WITHOUT SUPPLIER ’ S EXPRESS WRITTEN CONSENT . SHOULD ANY INDEMNITEE DESIRE TO HAVE ITS OWN COUNSEL PARTICIPATE IN ANY SUCH ACTION , THE COST OF SUCH COUNSEL SHALL BE EXCLUSIVELY INDEMNITEE ’ S . NOTWITHSTANDING THE ABOVE , SUPPLIER SHALL NOT BE LIABLE FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR FOR ANY LIABILITY , LOSS , DAMAGES , COSTS OR EXPENSES WHICH AN INDEMNITEE MAY INCUR AS A RESULT OF ANY INJURY , ILLNESS OR DEATH RESULTING FROM ( A ) ALTERATIONS OR MODIFICATIONS TO THE PRODUCTS MADE BY

- 12 -

INDEMNITEE OR OTHERS ( OR BY SUPPLIER , IN THE CASE OF AN INFRINGEMENT CLAIM ) AT . INDEMNITEE ’ S REQUEST , ( B ) ELECTRICAL / ELECTRONICS , SOFTWARE / FIRMWARE , SENSORS , OR PRODUCT INTERFACE NOT FURNISHED BY SUPPLIER , ( C ) COMBINATION OF THE PRODUCTS WITH OTHER APPARATUS OR TECHNOLOGY NOT FURNISHED OR , IN THE CASE OF INFRINGEMENT CLAIMS , SPECIFIED IN WRITING BY SUPPLIER , ( D ) USE OF PRODUCTS OR COMPONENTS NOT SUPPLIED BY SUPPLIER , ( E ) USE OF PRODUCTS NOT PERMITTED UNDER THIS AGREEMENT , OR ( F ) FOR ANY CLAIMS NOT RELATED DIRECTLY TO THE PRODUCTS .

11.

B OOKS A ND R ECORDS ; F ACILITIES I NSPECTIONS . Supplier agrees to keep, maintain and preserve complete, current and accurate books, records and accounts of the transactions contemplated by this Agreement and such additional books, records and accounts as are necessary to establish and verify Supplier’s compliance with this Agreement. All such books, records and accounts will be available for inspection and audit by Novation representatives at any time during the Term and for two (2) years thereafter, but only during reasonable business hours and upon reasonable notice. Novation agrees that its routine audits will not be conducted more frequently than twice in any consecutive twelve (12) month period. In addition, Supplier will make its manufacturing and packaging facilities available for inspection from time to time during the Term by Novation representatives, but only during reasonable business hours and upon reasonable notice and no more frequently than once in any 12 month period. The exercise by Novation of the right to inspect and audit is without prejudice to any other or additional rights or remedies of either party.

12.

T ERMINATION . Either party may terminate this Agreement at any time for any reason whatsoever by delivering not less than ninety (90) days’ prior written notice thereof to the other. In addition, either party may terminate this Agreement immediately by delivering written notice thereof to the other upon the occurrence of either of the following events:

(a) The other party breaches this Agreement and does not cure such breach within thirty (30) days of receipt of such notice, except for Supplier’s monetary breach, for which a cure period of ten (10) days shall be allowed; or breach of Compliance with Laws, for which a cure period shall not be allowed; or

(b) The other party becomes bankrupt or insolvent or makes an unauthorized assignment or goes into liquidation or proceedings are initiated for the purpose of having a receiving order or winding up order made against it or the other party and applies to the courts for protection from its creditors.

13. C ONFIDENTIAL I NFORMATION .

a. Nondisclosure . Each party agrees that it will:

(1) keep strictly confidential and hold in trust all Confidential Information, as defined in Subsection 13.b. below, of Supplier, Novation, the Clients, the Authorized Distributors and the Members as applicable;

- 13 -

(2) not disclose the Confidential Information to any third party (unless required by law) without the prior written consent of the other party; and

(3) not later than thirty (30) days after the expiration or earlier termination of this Agreement, return to Supplier, Novation, the Client, the Authorized Distributor or the Member, as the case may be, the Confidential Information.

b. Definition . “Confidential Information,” as used in Subsection 13.a. above, will consist of all information, documents and materials relating to the technology, design, prices and usage of the Products, or other non-public information about Supplier, its employees, its customers, and its partners (including all information contained in the reports produced by Supplier pursuant to Section 5 above) and all documents and other materials of Novation, the Clients, the Authorized Distributors and the Members containing information relating to the programs of Novation, the Clients, the Authorized Distributors or the Members of a proprietary or sensitive nature not readily available through sources in the public domain.

c. HIPAA . If a Member determines, in its sole reasonable discretion, that Supplier is a “business associate,” as that term is defined in the privacy rules promulgated pursuant to The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) codified at 45 CFR Parts 160 and 164, Supplier will negotiate with Member a mutually acceptable written agreement which will govern Supplier’s access to “protected health information” as defined under HIPAA (a “Business Associate Contract”).

14. M ISCELLANEOUS .

a. Choice of Law . This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of Delaware and the Delaware courts will have jurisdiction over all matters relating to this Agreement; provided, however, the terms of, any agreement between Supplier and an Authorized Distributor or between Supplier and a Member will be governed by and construed in accordance with the choice of law and venue provisions set forth in such agreement.

b. No Assignment . No assignment of all or any part of this Agreement maybe made without the prior written consent of the other party which consent may not be unreasonably withheld. As used herein, “assignment” shall mean a transfer by virtue of operation of law, under an order of any court, or pursuant to any plan of merger, consolidation or sale of stock or assets. Any assignment of all or any part of this Agreement by either party will not relieve that party of the responsibility of performing its obligations hereunder to the extent that such obligations are not satisfied in full by the assignee. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

c. Notices . Except as otherwise expressly provided herein, all notices or other communications required or permitted under this Agreement will be in. writing and will be deemed sufficient when mailed by United States mail, or delivered in person to the party to which it is to be given, at the address of such party set forth below:

- 14 -

If to Supplier:

To the address set forth by Supplier in the Bid

If to Novation:

Novation, LLC

Attn: General Counsel

125 East John Carpenter Freeway

Irving, TX 75062-2324

Or such other address as the party will have furnished in writing in accordance with the provisions of this Subsection.

d. Severability . Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Each party will, at its own expense, take such action as is reasonably necessary to defend the validity and enforceability of this Agreement and will cooperate with the other party as is reasonably necessary in such defense.

e. Entire Agreement . This Agreement, together with the exhibits listed below, will constitute the entire agreement between Novation and Supplier. This Agreement, together with the exhibits listed below and each Authorized Distributor’s purchase order will constitute the entire agreement between each Authorized Distributor and Supplier. This Agreement, together with the exhibits listed below and each Member’s purchase and/or lease order and/or other applicable Form will constitute the entire agreement between each Member and Supplier. In the event of any inconsistency between this Agreement and an Authorized Distributor’s or Member’s purchase and/or lease order and/or other applicable Form, the, terms of this Agreement will control. In, the event of any inconsistency between this Agreement and an exhibit to this Agreement, the terms of this Agreement will control No other terms and conditions in any document, acceptance, or acknowledgment will be effective or binding unless expressly agreed to in writing. The following exhibits are incorporated by reference in this Agreement:


Exhibit A		Product and Service Description and Pricing

Exhibit B		Non-Price Specifications

Exhibit C		Award Letter

Exhibit D		Forms of Purchase, Lease, License, Financing and/or Service Agreements

Exhibit E		Warranty

Exhibit F		Novation E-Commerce Agreement

- 15 -


Exhibit G		Returned Goods Policy

[Other Exhibits Listed, if any]


SUPPLIER:	Masimo

ADDRESS:	40 Parker
	Irvine, CA 92618

SIGNATURE:	/s/ J. Beyer
TITLE:	VP, National Accounts	DATE: Dec. 16, 2005

- 16 -

EXHIBIT A

PRODUCT AND SERVICE DESCRIPTION AND PRICING

[Final listing of products and/or services and prices covered by the Agreement]

I. PRODUCT LIST AND PRICING: See Attachment 1 to Exhibit A = Products and Pricing

Agreement Pricing Structure:


Price Tier	Tier Criteria	Comments

Tier 1	Access tier	Available to all Members

Tier 2	[...***...]

Tier 3	[...***...]	IDN Tier

II. LETTER OF PARTICIPATION. See Attachment 2 to Exhibit A = Letter of Participation

III. PRICE PROTECTION TERMS FOR OPTION YEARS - Pricing will remain firm for the initial term of the Agreement. Pricing for Option Years will be mutually negotiated between Supplier and Novation.

IV. OTHER.

Purchases from a supplier that does not offer the full product line will not count against a Member’s compliance level.

* Confidential Treatment Requested

A-1

NOVATION BID PRICING

PULSE OXIMETRY

CROSS-REFERENCE TEMPLATE

Attachment 1 to Exhibit A

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

Multiparameter Pulse Oximeter Monitors

Tabletop monitor with maximum motion tolerance and low perfusion performance

1803

Rad-O Traditional Tabletop Pulse Oximeter (Traditional tabletop means the unit is a one-piece design similar to competitive one-piece units but does not include an integral interface to physiological monitors as uniquely available with the Radical versions listed below).

Each

[...***...]

Tabletop monitor with maximum motion tolerance and low perfusion performance

1603

Rad-8 Traditional Tabletop Pulse Oximeter (Traditional tabletop means a one-piece design similar to competitive one-piece units but does not include the 3-in-1 feature uniquely offered with the Radical versions listed below. NOTE: Rad-8 is pending 510k clearance and general release in July of 2005 and is designed to be priced at or below the Rad-9 listed above).

Each

Tabletop monitor with maximum motion tolerance and low perfusion performance plus 3-in-1 (handheld/interace) features that are totally unique to Radical

R2DS-1

Radical, 3-in-1 Oximeter with blue screen & automatic display rotation plus Docking Station (includes Satshare, R8232, & Nurse Call Interface). Consists of p/n 1708 (Handheld) and p/n 1310 (RDS-1) Docking Station

Each

Tabletop monitor with maximum motion tolerance and low perfusion performance plus 3-in-1 (handheld/tabletop/interace) features that are totally unique to Radical

R2DS-1B

Radical, 3-in-1 Oximeter with blue screen & automatic display rotation plus Docking Station with extended battery option: (includes same interface options listed above) Consists of p/n 1708 (Handheld) and p/n 1311 (RDS-1B) Docking Station

Each

Tabletop monitor with maximum motion tolerance and low perfusion performance plus 3-in-1 (handheld/tabletop/interace) features that are totally unique to Radical

R2DS-3

Radical, 3-in-1 Oximeter with blue screen & automatic display rotation plus Docking Station (includes R8232 & Nurse Call Interface). Consists of p/n 1708 (Handheld) and p/n 1712 (RDS-3) Docking Station

Each

* Confidential Treatment Requested

A-2

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

Tabletop monitor with maximum motion tolerance and low perfusion performance plus Pulse Co-Oximetry hardware platform and 3-in-1 (handheld/tabletop/interace) features that are totally unique to Radical

R7DS-1

Radical-7, 3-in-1 Oximeter with same features as R2DS-1 above except the handheld includes Rainbow SET hardware platform – which includes Masimo SET Sp02 plus the option to add other hemoglobin parameters such as C0Hb via s./w option. Consists of p/n 2012 (Handheld) and 1310 (RDS-1) Docking Station

Each

[...***...]

Tabletop monitor with maximum motion tolerance and low performance plus Pulse Co-Oximetry hardware platform and 3-in-1 (handheld/tabletop/interace) features that are totally unique to Radical

R7DS-1B

Radical-7, 3-in-1 Oximeter with same features as R2DS-1B above except it includes Rainbow SET hardware platform – which includes Masimo SET SpO2 plus the option to add other hemoglobin parameters such as COHb via s/w option. Consists of p/n 2012 (Handheld) and p/n 1311 (RDS-1B) Docking Station

Each

R7DS-3

Radical 7, 3-in-1 Oximeter with same features as R2D8-3 above except it includes Rainbow SET hardware platform – which includes Masimo SET SpO2 plus the option to add other hemoglobin parameters such as COHb via s/w option. Consists of p/n 2012 (Handheld) and p/n 1712 (RDS-3) Docking Station

Each

Additional Items:

1708

Radical Blue Screen Handheld with Masimo SET (Combined with choice of docking stations listed below)

Each

2012

Radical 7 Blue Screen Handheld with Masimo Rainbow SET – which includes Masimo SET SpO2 + the Rainbow SET Pulse CO-Oximetry platform capable of adding other hemoglobin parameters such as COHb and others to be released in future (Combined with choice of docking stations listed below)

Each

1310

Radical Docking Station RDS-1 (includes Satshare, RS232 & Nurse Call Interface).

Each

1311

Radical Docking Station RDS-1B (includes same interface capabilities as RDS-1 above plus adds Extended Battery life)

Each

1712

Radical Docking Station RDS-3 (includes RS232 & Nurse Call Interface)

Each

* Confidential Treatment Requested

A-3

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

Handheld monitor with

maximum motion tolerance and low perfusion performance

1883

Rad-5 Portable Oximeter, Premium, DCSC 1

Each

[...***...]

1884

Rad-5v Portable Oximeter, DCSC 1

Each

1891

Rad-5 Portable Oximeter, Premium, PC-04 & sensor kit

Each

1892

Rad-5v Portable Oximeter, PC-04 & sensor kit

Each

1957

Rad-5 Portable Oximeter, Premium, DC-IP & PC-04 Patient Cable

Each

1958

Rad-5v Portable Oximeter, CD-IP & PC-04 Cable

Each

2050

Rad-57 handheld Pulse CO-Oximeter capable of measuring Carbon Monoxide (COHb) plus SpO2 and pulse rate (includes Rainbow CDI-dc3 finger sensor that uses 8 wavelengths)

Each

1842

Rad-5/5v Protective Boot – Gray

Each

1980

Rad-5/5v Protective Boot – Yellow

Each

1981

Rad-5/5v Protective Boot – Red

Each

1982

Rad-5/5v Protective Boot – Orange

Each

13158

Rad-5/5v Soft Carrying Case

Each

Extended Warranty/Service Agreements

Rad-9 extended parts/labor warranty (per year)

Each

Radical extended parts/labor warranty (per year – includes docking station)

Each

Radical 7 extended parts/labor warranty (per year – includes docking station)

Each

Rad-5/Rad-5v extended parts/labor warranty (per year)

Each

Rad-57 extended parts/labor warranty (per year)

Each

Computer Software and Accessories

1908

Trend/Com Trend Download Software

Each

1909

Rad-5/5v PRONTO Trend download serial cable

Each

2083

Rad-57 PRONTO Trend download serial cable

Each

Adult Adhesive Disposable Sensor

1912

LNOPv Adult-L (with standard tape)

Box

Adult Adhesive Disposble Sensor

1001

LNOP Adt (with max durability tape)

Box

Adult Adhesive Disposble Sensor

1829

LNOP Adix (with clear tear resistant tape)

Box

Adult Adhesive Disposble Sensor

1859

LNCS Adult (w/Integral Low Noise Cable)

Box

* Confidential Treatment Requested

A-4

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

Adult Adhesive Disposable Sensor

1774

SPO2.com Adult (generic sensors, compatible w/Nelcor conventional spO2)

Box

[...***...]

Adult Adhesive Disposable Sensor

1828

LNOP Hi Fi Trauma Specialty Sensor

Box

Neonatal Adhesive Disposable Sensor

1831

LNOPv Neo-L (with standard tape)

Box

Neonatal Adhesive Disposable Sensor

1798

LNOP Neo-L (with max durability tape)

Box

Neonatal Adhesive Disposable Sensor

1002

LNOP Neo (with max durability tape)

Box

Neonatal Adhesive Disposable Sensor

1003

LNOP NeoPT (special Soft-Touch attachment)

Box

Neonatal Adhesive Disposable Sensor

1651

LNOP NeoPT-L (special Soft-Touch attachment)

Box

Neonatal Adhesive Disposable Sensor

1611

LNOP Neo Bridge (with max durability tape)

Box

Neonatal Adhesive Disposable Sensor

1612

LNOP NeoPT Bridge (special Soft-Touch attachment)

Box

Neonatal Adhesive Disposable Sensor

1862

LNCS Neo L (w/Integral Low Noise Cable)

Box

Neonatal Adhesive Disposable Sensor

1776

SPO2.com Neoate (generic sensors, compatible w/Nelicor conventional SpO2)

Box

Neonatal Adhesive Disposable Sensor

1828

LNOP Hi Fi Trauma Specialty Sensor

Box

Infant Adhesive Disposable Sensor

1832

LNOPv Infant-L (with standard tape)

Box

Infant Adhesive Disposable Sensor

1800

LNOP Inf-L (with max durability tape)

Box

Infant Adhesive Disposable Sensor

1861

LNCS Inf-L (w/integral Low Noise Cable)

Box

Infant Adhesive Disposable Sensor

1777

SPO2.com infant (generic sensors, compatible w/Nellcor conventional SpO2)

Box

Infant Adhesive Disposable Sensor

1871

LNOP Hi Fi In/Ped Trauma Specialty Sensor

Box

Pediatric Adhesive Disposable Sensor

1913

LNOP Pd-L (with standard tape)

Box

Pediatric Adhesive Disposable Sensor

1025

LNOP Pdt (with max durability tape)

Box

Pediatric Adhesive Disposable Sensor

1830

LNOP Pdtx (with clear tear resistant tape)

Box

Pediatric Adhesive Disposable Sensor

1860

LNCS-Pdtx (w/integral Low Noise Cable)

Box

Pediatric Adhesive Disposable Sensor

1775

SPO2.com Ped (generic sensors, compatible w/Nellcor conventional SpO2)

Box

Pediatric Adhesive Disposable Sensor

1871

LNOP Hi Fi In/Ped Trauma Specialty Sensor

Box

Adult Reusable Sensor

1580

LNOP DC-195 Finger Sensor

Each

Adult Reusable Sensor

1269

LNOP DCI Finger Sensor

Each

Adult Reusable Sensor

1883

LNCS DCI Finger Sensor

Each

Adult Reusable Sensor

1778

SPO2.COM RS-1 (generic sensors, compatible w/Nellcor conventional SpO2)

Each

Adult Reusable Sensor

1544

LNOP Multi-Site Sensor

Each

Adult Reusable Sensor

LNCS Multi-Site Y Sensor

Each

* Confidential Treatment Requested

A-5

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

Adult Reusable Sensor

1794

LNOP TC-1 Ear/Tip Clip Sensor

Each

[...***...]

Adult Reusable Sensor

1895

LNCS TC-1 Ear/Tip Clip Sensor

Each

Adult Reusable Sensor

1793

LNOP TF-1 Forehead Sensor

Each

Adult Reusable Sensor

1896

LNCS TF-1 Forehead Sensor

Each

Adult Reusable Sensor

1396

DCSC Finger Sensor with Direct Connect to Monitor – No Pt Cable Required

Each

Pediatric Reusable Sensor

1276

LNOP DCIP Peditric Finger Sensor

Each

1864

LNCS DCIP Peditric Finger Sensor

Each

Rainbow Sensors (Capable of Carbon Monoxide COHb + SpO2)

2051

Rainbow DCI-dc3, Adult Reusable Direct Connect Sensor, 3 ft, 1/box

Each

2052

Rainbow DCI-dc12, Adult Reusable Direct Connect Sensor, 12 ft, 1/box

Each

2053

Red DCI-dc3, Adult Reusable Direct Connect Sensor, 3 ft, 1/box

Each

2054

Red DCI-dc12, Adult Reusable Direct Connect Sensor, 12 ft, 1/box

Each

Patient Cables

1173

PC04 Cable, 1/box, 4 ft. Patient Cable

Each

1619

PC04-Ext Cable, 1/box, 4 ft. Extension Cable

Each

1005

PC08 Cable, 1/box, 8 ft. Patient Cable

Each

1006

PC-12 Cable, 1/box, 12 ft. Patient Cable

Each

1645

AC-1 Adapter Cable

Each

1520

PXC16 Mountable Extension Cable, 1/box, 16 ft. Extension Cable

Each

1555

PXC30 Mountable Extension Cable, 1/box, 30 ft. Extension Cable

Each

1557

PXC30 Mountable Extension Cable, 1/box, 50 ft. Extension Cable

2017

LNC-4 Cable, 1/box, 4 ft. Patient Cable

Each

1814

LNC-10 Cable, 1/box, 10 ft. Patient Cable

Each

Patient Cables SPO2.com

1810

NRC-180 Patient Cable, Nellcor 180 to SPO2.COM, 10 ft, 1/box

Each

1811

NRC-395 Patient Cable, Nellcor 395 to SPO2.COM, 10 ft, 1/box

Each

1949

NRC-P8 Patient Cable, Philips 8-pin to SPO2.COM, 10 ft., 1/box

Each

1853

NRC-P12 Patient Cable, Philips 12-pin to SPO2.COM, 10ft, 1/box

Each

1854

NRC-GE Patient Cable, GE to SPO2.COM, 10 ft., 1/box

Each

1927

AC-1 Patient Cable, LNOP sensor to Nellcor device, 12 ft.

Each

Sensor Accessories

1053

Replacement Posey Wrap Bag for LNOP NeoPt and NeoPI-Bridge Sensors, 12/pack

Bag

* Confidential Treatment Requested

A-6

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

1054

Replacement Tapes Bag for LNOP Neo and Neo-Bridge Sensors, 100/pack

Pack

100

[...***...]

1926

Replacement wrap for 1651 LNOP NeoPt-L sensor

Pack

1799

Replacement Tapes for 1798 LNOP Neo-L Sensors, 100/Pack

Pack

100

1801

Replacement Tapes for 1800 LNOP Inf-L Sensors, 100/pack

Pack

100

1596

CleanShield Multiple Wrap, 100/box, Adult/Pediatric/Neonatal adhesive attachment wraps for LNOP YI Multiple Reusable Sensor

Box

100

1597

Standard Multisite, 100/box, Adult/Pediatric/Neonatal adhesive attachment wraps for LNOP Y1 Multiple Reusable Sensor

Box

100

1598

Standard Petite Wrap, 100/box, Adult slender digit/Pediatric/Neonatal adhesive attachment wraps for LNOP Y1 Multiple Reusable Sensor

Box

100

1602

Foam Wraps for LNOP Y1 Sensors, 12/pack

Pack

1601

Accessory Clothing Clips, 5/pack

Pack

1600

Accessory Adhesive Squares, (144 squares per pack)

Pack

144

1608

Headband for LNOP/LNCS TF-1

Pack

1903

Adhesive Pad LNOP/LNCS TF-1

Pack

Radical Accessories

1315

Replacement Battery, Radical Handheld

Each

1317

Radical Pole Clamp

Each

1395

Radical Handheld Lock

Each

1584

Radical Power Cord Lock, 5/pack

Each

1904

Rad-9 Power Cord Lock, 5/pack

Each

1595

SatShare Cable, AT01, Masimo

Each

1324

SatShare Cable, DO01, Masimo

Each

1326

SatShare Cable, DO02, Masimo

Each

1528

SatShare Cable, DO03, Masimo

Each

1533

SatShare Cable, DO04, Masimo

Each

1325

SatShare Cable, DS01, Masimo

Each

1539

SatShare Cable, DS02, Masimo

Each

1357

SatShare Cable, HP02, Masimo

Each

1321

SatShare Cable, M!01, Masimo

Each

1367

SatShare Cable, NK01, Masimo

Each

1368

SatShare Cable, NK02, Masimo

Each

1366

SatShare Cable, OH01, Masimo

Each

1648

SatShare Cable, OH02, Masimo

Each

1323

SatShare Cable, SL01, Masimo

Each

1362

SatShare Cable, SL02, Masimo

Each

* Confidential Treatment Requested

A-7

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

1322

SatShare Cable, SM01, Masimo

Each

[...***...]

1605

SatShare Extension Cable, Masimo

Each

11901

Radical User Manual – Danish, Masimo

Each

11902

Radical User Manual – Dutch, Masimo

Each

11601

Radical User Manual – English, Masimo

Each

11715

Radical User Manual – French, Masimo

Each

11714

Radical User Manual – German, Masimo

Each

11716

Radical User Manual – Italian, Masimo

Each

11717

Radical User Manual – Portuguese, Masimo

Each

11718

Radical User Manual – Spanish, Masimo

Each

11903

Radical User Manual – Swedish, Masimo

Each

12114

Radical Service Manual, Masimo

Each

1593

Masimo Tester

Each

Modules and Upgrades

1795

Masimo Tester with cable

Each

1846

Masimo SET IntellVue Module (Module and Patient Cable)

Each

1847

Masimo SET IntellVue Patient Cable

Each

1881

Masimo VueLink Module (and VueLink cable)

Each

1841

Masimo Set VueLink cable

Each

12949

GE Tram upgrade (see note)

Each

13108

GE Dash upgrade (see note)

Each

RadLink Supplemental Alarm Paging System

1878

RadLink Tranceiver Kit, 467.8MHz (incl tranclever, pwr supply, serial cable, mounting bracket and antenna)

Each

1879

RadLink 4-Line Pager, 467.8MHz (includes battery and belt clip)

Each

1880

RadLink Tranceiver Programming Kit (One required per installation. Includes RadLink Master Tranceiver, power supply, serial cable, antenna and mounting hardware, installation Software CD, and Nul Modern Serial Programming Cable) Without Laptop Windows

Each

RadLink Accessories

1878-Inst

Installation and initial configuration for RadLink transceiver. (one required per transceiver, does not include travel or expenses)

Each

1888

RadLink mounting bracket for Radical (includes mounting screws)

Each

12992

RadLink spare power supply

Each

* Confidential Treatment Requested

A-8

DUAL SOURCE

Generic Product Description

YOUR
PRODUCT
CODE

YOUR PRODUCT DESCRIPTION

UPN
Number

CONTAINS
LATEX?

SELLING
UNIT OF
MEASURE
(SUOM)

QTY
PER
SUOM

LIST PRICE
PER SUOM

TIER 1
(Access)

TIER 2
[...***...]

TIER 3
[...***...]

12993

RadLink spare antenna

Each

[...***...]

30859

RadLink serial cable – RadLink to Radical, 18”

Each

13179

RadLink Pager Belt Clip

Each

* Confidential Treatment Requested

A-9

Attachment 2 to EXHIBIT A

LETTER OF PARTICIPATION

Masimo Pulse Oximetry Equipment and Sensors (MS50662)

(Customer), an eligible member of VHA or UHC or affiliate (circle one), chooses Novation as their GPO of choice and agrees to participate in the products agreement dated , between Novation and .



CUSTOMER INFORMATION

Name MEMID

Address City/State/ZIP

Supplier Account No. Phone

Contact Date
Name and Title

Customer Signature Date

Name and Title Title



MASIMO SALES INFORMATION

Masimo Sales Representative Date

Signature Title



NOVATION-INFORMATION

Submitted By Phone No.

Member ID No.: Date:

Fax to: Novation Contract Administration at 877/NOVAFRM (668-2376).

Problems? Contact us at novafrm@novationco.com.

A-10

EXHIBIT B

NON-PRICE SPECIFICATIONS

[Final contract specifications]

I. TERM:

Agreement term shall be from March 1, 2006 through February 28, 2009. Novation has the option to renew for two (2) additional one-year terms.

II. FEES Fees are 2% per the terms of Section 7:Fees

III. VALUE ADDED PROGRAMS & SERVICES


PROGRAM NAME	DESCRIPTION	CRITERIA/TERMS	COST
Masimo University	Masimo Corporation’s eLearning site with innovative e-Inservicing. Masimo has developed this customized online program to provide our customers with a general clinical and historical knowledge of pulse oximetry, as well as a working knowledge of Masimo SET products	You must be a Masimo registered customer to gain access to our training courses.	Free to Masimo customers

IV. OTHER (if applicable)

B-1


		EXHIBIT C AWARD LETTER

December 13, 2005

Jim Beyer

VP of National Accounts

Masimo Corporation

40 Parker Road

Irvine, CA 92618

1. Subject: Acceptance of Bid (Supplier Agreement # MS50662)

Dear Jim,

Novation, LLC (“Novation”), acting in its capacity as agent for VHA, UHC, and HPPI, respectively (and not collectively) and certain of their respective subsidiaries and affiliates, accepts your dual supplier proposal (Bid Certification) for Pulse Oximetry Stand Alone, Hand Held and Third Party Sensors categories in response to our Invitation To Bid for Pulse Oximetry & Related Products dated April 25, 2005, which was signed and dated by you on May 25, 2005. The Supplier Agreement, to which this letter will be attached as an Exhibit, will represent the final agreement between the parties for Pulse Oximetry & Related Products. You will sign and date that Supplier Agreement.

The “Agreed Percentage” for the Fee will be two percent (2%).

The term of this Agreement will be for a period of three years, effective March 1, 2006, with two one-year renewal options at Novation’s discretion. In addition, please be advised that Novation may elect to contract with Historically Underutilized Business (HUB) manufacturers for such products.

Novation looks forward to a successful implementation of this Agreement.

Sincerely,

/s/ Larry McComber

Larry McComber

Senior Vice President

{Novation, LLC}

C-1

EXHIBIT D

FORMS OF PURCHASE, LEASE, LICENSE, FINANCING

AND/OR SERVICE AGREEMENTS

Deferred Sensor Committed Program :

Committed members of VHA, UHC and HPPI committing to purchase a minimum annual quantity of pulse oximetry sensor Products from Seller for a specified term shall be eligible to participate in Seller’s Deferred Sensor Commitment Program (“Deferred Sensor Committed Program”). Committed member participants electing to participate in Seller’s Deferred Sensor Commitment Program shall receive at no additional cost Seller’s oximetry equipment Products when committing to purchase a specified annual quantity of Seller’s sensor Products, at the prices set forth in Exhibit A, throughout the duration of a mutually agreed upon term. Such annual quantity requirement shall be mutually agreed upon by the Committed member of VHA, UHC or HPPI and Seller based on the individual members prior (12) month sensor utilization. Members participating in this program will be required. to execute Seller’s Deferred Sensor Commitment Program agreement.

Deferred Sensor Committed Program with Capitation :

Committed members of VHA, UHC and HPPI electing to have a fixed monthly payment schedule for their sensors and oximetry equipment Product requirements may participate in Seller’s Sensor Deferred Purchase Program with Capitation (“Deferred Sensor Committed Program with Capitation”). Under Seller’s Sensor Deferred Purchase Program with, Capitation, the Committed members of VHA, UHC and HPPI and Seller identify the sensor and oximetry equipment Product needs, at the pricing set forth in Exhibit A, for a mutually agreed upon term and mutually agree upon an appropriate fixed monthly payment schedule for such total Product requirements. Members participating in this program will be required to execute Seller’s Sensor Deferred Purchase Program with Capitation agreement.

Deferred Sensor Committed Program with Guarantee Sensor Reduction :

Committed members of VHA, UHC and HPPI committing to purchase a minimum annual quantity of pulse oximetry sensors Products from Seller for a specified term shall be eligible to participate in Seller’s Deferred Sensor Commitment Program with Guarantee Sensor Reduction (“Deferred Sensor Committed Program with Guarantee Sensor Reduction”). Under Seller’s Sensor Deferred Purchase Program with Guarantee Sensor Reduction, the Committed members of VHA, UHC and HPPI and Seller identify the sensor and oximetry equipment Product needs, at the pricing set forth in Exhibit A, for a mutually agreed upon term and mutually agree upon sensor reduction guarantee. Members participating in this program will be required to execute Seller’s Sensor Deferred. Purchase Program with Capitation agreement.


		D-1

Exhibit E

Radical Manual

Warranty

Masimo warrants to the initial purchaser that each new pulse oximeter will be free from defects in workmanship or materials for a period of one (1) year from the date of purchase. Masimo’s sole obligation under this warranty is to repair or replace any product that Masimo deems to be covered under warranty with a repaired or a replacement pulse oximeter.

Battery is warranteed for six (6) months from date of purchase.

To request a replacement under warranty, contact the licensed manufacturer or Masimo for a returned goods authorization. If the licensed manufacturer or Masimo determines that a product must be replaced under warranty, it will be replaced and the cost of shipment covered. All other shipping costs shall be the responsibility of the purchaser.

Exclusions

This warranty does not extend to any product that has been subject to misuse, neglect or accident; that has been damaged by causes external to the Product; that has been used in violation of the operating instructions supplied with the product. The warranty does not extend to any product that has been connected to an unlicensed instrument system, modified accessories or any unit that has been disassembled or reassembled by anyone but an authorized Masimo agent.

THIS WARRANTY, TOGETHER WITH ANY OTHER EXPRESS WRITTEN WARRANTY THAT MAY BE ISSUED BY MASIMO IS THE SOLE AND EXCLUSIVE WARRANTY AS TO MASIMO’S PRODUCTS. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY ORAL OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MASIMO SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM THE USE OR LOSS OF USE OF ANY PRODUCTS.

End-user license agreement

THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU, THE “PURCHASER,” AND Masimo Corporation (“MASIMO”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE ENTIRE. PACKAGE, INCLUDING ALL ACCESSORIES, IN THEIR ORIGINAL PACKAGE, WITH YOUR SALES RECEIPT TO MASIMO FOR A FULL REFUND.


		E-1

documentation in connection with Purchaser’s use of the Masimo Products for their labeled purpose. MASIMO reserves all rights not expressly granted to Purchaser.

2. Ownership of Software/Firmware: Title to, ownership of, and all rights and interests in, any MASIMO software and/or firmware and the documentation, and all copies thereof, remain at all times vested in MASIMO Corporation, licensor to MASIMO, and they do not pass to Purchaser.

3. Assignment: Purchaser shall not assign or transfer this License, in whole or in part, by operation of law or otherwise, without MASIMO’s prior written consent; any attempt without such consent, to assign any rights,. duties or obligations arising hereunder shall be void.

4. Copy Restrictions: The software/firmware and the accompanying written materials are copyrighted. Unauthorized copying of the software, including software that has been modified, merged, or included with other software, or other written. materials is expressly forbidden. You may be held legally responsible for any copyright infringement that is cause or incurred by your failure to abide by the terms of this license. Nothing in this license provides any rights beyond those provided by 17 U.S.C. § 117.

5. Use Restriction: As the Purchaser, you may physically transfer the products from one location to another provided that the software/firmware is not copied. You may not electronically transfer the software/firmware from the products to any other device. You may not disclose, publish, translate, release or distribute copies of the software/firmware or accompanying written materials to others. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the software/firmware. You may not modify,. adapt, translate, or create derivative works based on the written materials without the prior written consent of MASIMO.

6. Transfer Restrictions: The software/firmware is licensed to the Purchaser, and may not be transferred to anyone, except other. end-users, without the prior written consent of MASIMO. In no event may you transfer, assign, rent, lease, sell, or otherwise dispose of the software/firmware or the products on a temporary basis.

7. Beneficiary: Masimo Corporation is a Beneficiary of this Agreement and has the right to enforce its provisions.

8. U.S. Government Rights: If you are acquiring software (including the related documentation) on behalf of any part of the United State Government, the following provisions: apply: the software is deemed to be “commercial software” and “commercial computer software documentation,” respectively pursuant to DFAR Section 227.7202 FAR 12:212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software (including the related documentation) by the U.S. Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this agreement.


		E-2

LNOP L-Series adhesive sensors

WARRANTY

Masimo warrants to the initial buyer only that each product it manufactures, when used in accordance with the directions provided with the Products by Masimo, will be free of defects in materials and workmanship for a period of six (6) months. Single use products are warranted for single patient use only.

THE FOREGOING IS THE SOLE AND EXCLUSIVE WARRANTY APPLICABLE TO THE PRODUCTS SOLD BY MASIMO TO BUYER. MASIMO EXPRESSLY DISCLAIMS ALL OTHER ORAL, EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. MASIMO’S SOLE OBLIGATION AND BUYER’S. EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY SHALL BE, AT MASIMO’S OPTION, TO REPAIR OR REPLACE THE PRODUCT.

WARRANTY EXCLUSIONS

IN NO EVENT SHALL MASIMO BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THE LIMITATIONS IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE ANY LIABILITY THAT, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT LEGALLY BE PRECLUDED BY CONTRACT.


		E-3

EXHIBIT F

NOVATION E-COMMERCE AGREEMENT

This Novation E-Commerce Agreement (“ Agreement ”) is entered into effective January 1, 2006 (“ Effective Date ”) between Masimo, Inc , a California corporation having its principal place of business at 40 Parker, Irvine, CA 92618 (“ Supplier ”) and, Novation, LLC, a Delaware limited liability company having its principal place of business at 125 East John Carpenter Freeway, Irving,. Texas 75062 (“ Novation ”). Novation is a contracting agent that develops and delivers supply chain management - agreements, programs and. services : on behalf of VHA Inc: (“ VHA ”), University HealthSystem Consortium (“ UHC ”) and their patrons.

Certain Members have chosen to utilize the services of Marketplace@Novation™ through Novation’s relationship with Neoforma, Inc. to transact business. associated with this Agreement with Supplier. To assist Novation in helping Members meet those needs, Supplier agrees to participate in Marketplace@Novation and utilize certain Marketplace@Novation services by entering into this Agreement with Novation.

Novation and Supplier therefore agree as follows:

1. DEFINITIONS

1.1 For Novation, “ Affiliate ” means a person or entity controlled by or under common control with another person or entity. For Masimo, “ Affiliate ” means a person or entity Controlling, Controlled by or under Common control with another person or entity, where “Control” means owning a majority of the voting stock or other voting rights in the Controlled entity.

1.2 “ Content ” means any text, graphics, logos, button icons, images, audio clips, video clips, HTML code, java programs and other material displayed at . Marketplace@Novation,, but excluding Supply Chain Data.

1.3 “ Contract Portfolio ” means a catalog of Products for which Novation, has contracted with Supplier for the benefit of the members of VHA and UHC and the associated healthcare organizations, of HPPI. For purposes of clarification, a Product is purchased through a Contract Portfolio if the Product is included in the contract between Novation and Supplier and is sold to a VHA or UHC member, regardless of whether such sale is pursuant to a separate contract -between Supplier and the member and except when the Member notifies Novation that the Product has been purchased pursuant to the terms of another GPO’s contract.

1.4 “ EDI Standards ” means the standard format for Electronic Data Interchange (EDI). generally accepted and used in North America, as may change from time to time.

1.5 “ Information ” means (i) any and all information and data collected, developed, and/or stored by Marketplace@Novation relating to Members, (ii) any and all information and data relating to use of or transactions at Marketplace@Novation by Members and (iii) any and all Member Transaction Information collected, developed, and/or stored by Marketplace@Novation.

F-1

1.6 “ Marketplace@a,Novation ” means the e-commerce marketplaces created specifically for and accessible. only to the members of VHA and UHC and the associated healthcare organizations of HPPI.

1.7 “ Member Transaction Information ” means information delivered or received between Supplier and a Member through Marketplace@Novation or Supply Chain Data delivered to Marketplace@Novation.

1.8 “ Members ” means at any date those members of VHA and UHC and the associated healthcare organizations of HPPI entitled to use the Marketplace@Novation pursuant to a Marketplace@Novation participation agreement.

1.9 “ NeoFormat ” means the format in which Product Data is to be sent to Marketplace@Novation.

1.10 “ Non-Contract Products ” means any Product offered by Supplier other than through a Contract Portfolio. For purposes of clarification, a Product may, be offered by Supplier both as a Non-Contract Product and through one or more Contract Portfolios, but will be considered a Non-Contract Product when the Member notifies Novation that the Product has been purchased pursuant to the terms of another group purchasing organization’s contract.

1.11 “ Products ” means all equipment, products, supplies and services, information and content provided by Supplier and available for purchase, rental or lease by Members at Marketplace@Novation or through the Services.

1.12 “ Product Data ” means. information describing the manufacturer and distributor product numbers, features, functions and pricing of Supplier’s Products, including images, specifications, shipping, weight, shipping dimensions, associated products, maintenance and warranty information, equivalent products and other information, to, be offered at Marketplace@Novation or through the Services.

1.13 “ Services ” means those services provided by Novation, which are listed and described below and mutually agreed to be provided to Supplier by Novation and Supplier. Novation shall provide the following services to Supplier at no charge:

Product Catalog and Contract Viewing

Novation shall publish Product Data and Contract Portfolio information to Members in product catalog and contract viewing modules.

F-2


Functionality		Criteria
Product Catalog		Contract Portfolio Product Data

Product Data shall include the information required to complete a transaction, including but not limited to: Product name, Product description, manufacturer number, UOM, price. Marketplace@Novation must receive this data from Supplier in Neoformat. Supplier may include the following additional content: Hyperlinks, images, broader product descriptions and other rich content.

Contract Viewing		Novation Contract

Any Novation Supplier Agreement between Supplier and Novation shall be displayed to VHA and UHC members through the Contract Viewing module within the Contract Management Solution

1.14 “ Supply Chain Data ” means the following data for any purchase made by a Member from Supplier through any means: Supplier identification, buyer identification, buyer account number, GPO (e.g., Novation) contract identifier, invoice number, invoice date, purchase order number, Supplier product number, product description, manufacturer, manufacturer part number, quantity, unit of measure, unit price, taxes, freight, price adjustments, and total cost, in electronic form in accordance with EDI Standards or such other standards as mutually agreed to by the parties.

2. SERVICES

Subject to the terms and conditions of this Agreement and supplier’s prompt response to providing product catalog content, Novation shall use commercially reasonable efforts to make available to Supplier the Services within sixty (60) days of the Effective Date. Supplier shall negotiate in good faith with Neoforma, Inc. for the purchase of additional supply chain solutions, including Neoforma securing data rights from supplier in connection with services offered.

3. OWNERSHIP AND LICENSE

3.1 Novation . Novation owns and will continue to own the compilation or “look and feel” of all Content as it appears on Marketplace@Novation (“ Content Compilation ”), subject to Section 3.4. Any reproduction, transmission or display of the Content Compilation by any Supplier or any third party is strictly prohibited.

3.2 For the term of this Agreement, Novation grants Supplier permission to access and use the Services in accordance with the terms of this Agreement.

F-3

3.3 Supplier . For the term of this Agreement, Supplier grants a non-exclusive license to Novation, with a right to sublicense to Novation’s Affiliates, including Neoforma Inc., to use, copy, modify, display, perform and create derivative works of Supplier’s Product Data solely for the purpose of digitizing, categorizing and formatting such information for placement at Marketplace@Novation and for the purpose of enabling Members to participate in Marketplace@Novation, in accordance with the terms of this Agreement.

3.4 Each party owns and shall retain all right, title to and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or. which may be developed and/or used by it in the future (“ Marks ”). Novation and its Affiliates are authorized to use Supplier’s Marks as necessary to provide the Services under this Agreement. To the extent that Novation modifies Product Data or other Content provided, by Supplier pursuant to this Agreement , Supplier hereby acknowledges that Novation will be the copyright owner of the derivative works that it creates pursuant to and subject to the license granted in Section 3.3 (whether in graphical, narrative or any other form), and subject in all respects to Supplier ownership of the underlying information and to the copyright of third parties.

4. SUPPLIER DATA

4.1 Supplier is solely responsible for all Product Data and any other Content it supplies to Novation for inclusion at Marketplace@Novation, including maintenance of. such Product Data and Content. Novation will not be responsible for the accuracy or legality of information provided by Supplier for publication at Marketplace@Novation or through the Services, and Novation may at any time at its sole discretion, remove such information from Marketplace@Novation if Novation reasonably believes that the information may cause liability for it. Product Data must not (a) infringe any third party rights, including, but not limited to intellectual property, publicity or privacy, (b) be defamatory, trade libelous, threatening or harassing nor (c) be obscene, indecent or contain pornography.

4.2 Supplier may make its Product Data available to Novation for listing . at Marketplace@Novation provided that Supplier provides the Product Data for all Products in the manner and format set forth in the NeoFormat specifications. Novation may digitize, categorize and format the Product Data and post such Product Data at Marketplace@Novation in accordance with Novation’s standard practices for digitization, categorization and formatting of Product Data.

4.3 The Product Data provided by Supplier shall include the manufacturer and distributor Product numbers, manufacturer, extended units of measure, Product descriptions and the specific terms and conditions of Supplier’s sale of Products to Members, subject to the terms and conditions of any contract between Supplier and a Member or Novation with respect to any Product. (“ Supplier Terms and Conditions ”). Novation does not set, approve, control or endorse the Supplier Terms and Conditions.

4.4 If at any time during the term of this Agreement and any renewals or extensions thereof, distributed sales of Supplier’s Products changes and Supplier now ships direct, either

F-4

through Marketplace@Novation or through other means, Supplier shall upon request from Novation and within ninety (90) days of such request, provide Novation with its Supply Chain Data on a daily basis or at least as often as provided to Members (in electronic form or otherwise) but in no event less than on a monthly basis. Novation may use Supply Chain Data only in accordance with the Marketplace@Novation Data Confidentiality and Privacy Statement (“ Privacy Policy ”), a current copy of which shall be provided to Supplier upon request and posted at http://novation.neoforma.com.

4.5 Supplier shall update Product Data from time to time and at. least quarterly in accordance with Novation’s then current policies and procedures for accessing and updating Product Data. Supplier shall update Product Data, including pricing information, hospital-specific pricing information for Non-Contract Products, Product identifications, Product numbers, extended units of measure, names and descriptions, and the Supplier Terms and Conditions, as required to ensure that at all times such Product Data is accurate, including removal of any discontinued or recalled Products.

4.6 Novation will not be responsible for the fulfillment of or payments for orders for Products. Supplier acknowledges that a Member makes an offer for a Product through Marketplace@Novation when it places an order for such Product. Supplier shall respond to an order for a Product directed to it by a Member through Marketplace@Novation within one (1) business day of placement of such order by either accepting or rejecting such order. Supplier shall have the right, in its sole discretion, to accept or reject any order. Supplier acknowledges that all orders made by Members for Products and accepted by Supplier will be accepted based on prices (if listed) and Product Data (including any posted terms and conditions relating to purchase of such Products) as they appear at Marketplace@Novation at the time of such order. Notwithstanding the foregoing, nothing in this Section 4.6 will affect the Supplier’s rights and obligations visa-vis the party placing the order.

4.7 Novation will not be responsible for ensuring that a sale to a Member is authorized and in compliance with laws and that a Member has complied with any licensing or other governmental requirements or for fulfillment; billing or collections to Members. If Supplier sells Products directly through Marketplace@Novation, (i) Supplier shall provide credential and licensure verification, fulfillment, billing and collections to Members who have purchased from Marketplace@Novation; (ii) Supplier shall have the final authority to refuse to ship Products when it believes, in its sole discretion, that the party placing the order does not have the necessary license or other government required permission or authority to receive the Product ordered or that such sale is otherwise not to an authorized Member or not in compliance with applicable laws; (iii) Supplier shall communicate to any such party the reasons for a refusal to ship an ordered Product; and (iv) Supplier shall be responsible for all customer support after the point when an order is made by a. Member and transmitted from Novation to Supplier. Notwithstanding the foregoing, nothing in this Section 4.7 will affect the Supplier’s rights and obligations vis-a-vis the party placing the order.

4.8 Novation may use Information to facilitate, transactions conducted through Marketplace@Novation, to allow access to and fulfill contractual obligations to Novation and Members, to conduct its business as outlined in the Privacy Policy, and to create and sell aggregated reports on Marketplace@Novation activities, provided that such reports do not

F-5

contain, data that has been combined or compiled in such a way that an individual, either by name or by other designation, can be identified.

5. SYSTEM INTEGRITY

5.1 Supplier and Novation shall use, then current industry standard state of the art ant-virus software and procedures to prevent any software routine or any other device including but not limited to any viruses, Trojan horses, worms, time bombs, or cancelbots, from interfering or attempting to interfere with the proper working of Marketplace@Novation.

6. CONFIDENTIALITY

6.1 Except as expressly set forth in the Privacy Policy, Novation and Supplier shall regard and preserve as confidential all information related to the business of each other disclosed pursuant to this Agreement. This confidentiality obligation does not apply to (a) information that is publicly known prior to the disclosure or becomes publicly known through no wrongful act of the receiving party; (b) information that was in lawful possession of the receiving party prior to disclosure and was not received as a result of any breach of confidentiality; (c) information that was independently developed by the receiving party outside the scope of this Agreement; (d) information which the receiving party is required to disclose pursuant to a court order or regulatory agency request; or (e) the existence, but not the terms or conditions, of this Agreement. In the event of a request for disclosure pursuant to subsection (d), immediate notice of such request shall be provided by the party receiving the request to the party whose information is subject to the request to provide an opportunity to oppose such request for disclosure. Notwithstanding the foregoing and except as otherwise limited, Novation shall be entitled to share (1) with its Affiliates any and all Information and (2) Information, except pricing Information, regarding the sale of Products distributed but not manufactured by Supplier to Members with the manufacturer of such Product if such , manufacturer is a party to a Marketplace@Novation Supplier Agreement.

7. REPRESENTATIONS AND WARRANTIES

7.1 Novation represents and warrants that (i) it has all rights, titles, licenses, permissions and approvals necessary to perform its obligations under this Agreement and to grant to Supplier all licenses and rights granted hereunder, and that such licenses do not and will not infringe or otherwise violate any copyright, trade secret, trademark, patent or other proprietary right of any third party, (ii) that it has and will maintain the capability to provide the Services and to create and host Marketplace@Novation during the term of this Agreement, and (iii) it has complied and shall continue to comply with all applicable legislation, laws, statutes, ordinances, rules and regulations regarding Marketplace@Novation and the Services.

7.2 Supplier represents and warrants that (i) it has full power and authority to sell the Products to be sold by it at Marketplace@Novation and will not offer for sale counterfeit or stolen items, (ii) it is the sole owner or is a valid licensee of all Content provided by or on behalf of Supplier for inclusion at Marketplace@Novation and has secured all necessary licenses, consents and authorizations with respect to use of such Content and all elements thereof to the full extent contemplated herein, (iii) no part of any Content provided by or on behalf of Supplier

F-6

for inclusion at Marketplace@Novation violates or infringes upon the patent rights, copyrights, trade secrets, trademarks or other proprietary rights of any person or entity or constitutes defamation, invasion of privacy or the violation of the rights of any person or entity, and (iv) it has complied and shall continue to comply with all applicable legislation, laws, statutes, ordinances, rules and regulations regarding the Products and their sale or transfer, and its actions in relation to Marketplace@Novation and the Services.

7.3 EXCEPT AS OTHERWISE SPECIFICALLY. PROVIDED HEREIN, NOVATION SUPPLIES MARKETPLACE@NOVATION AND THE SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. NOVATION SPECIFICALLY DISCLAIMS ANY AND ALL. IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,. AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. NOVATION ALSO DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED ACCESS TO MARKETPLACE@NOVATION AND THE SERVICES, SERVICES, AND OPERATION OF THE MARKETPLACE@NOVATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF NOVATION’S CONTROL. USE OF MARKETPLACE@NOVATION AND SALE OF PRODUCTS TO MEMBERS IS AT SUPPLIER’S RISK. BY USING THE SERVICES AND MARKETPLACE@NOVATION, SUPPLIER REPRESENTS AND WARRANTS THAT IT CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. FURTHERMORE, SUPPLIER REPRESENTS AND WARRANTS THAT THE INDIVIDUAL EXECUTING THIS AGREEMENT HAS AUTHORITY TO BIND SUPPLIER AS SELLER AND THAT BY DOING SO IS NOT BREACHING OR IN CONFLICT WITH ANOTHER AGREEMENT OR OBLIGATION.

8. INDEMNIFICATION

8.1 Subject to Section 8.3, Novation shall defend and/or handle at its own expense any third party claims or actions, arising from (i) any actual or alleged infringement of a copyright, trade secret, trademark, patent or other proprietary right of a third party arising out of Supplier’s use of Marketplace@Novation and the Services as permitted under this Agreement , and (ii) any breach by Novation of any of its representations or obligations set forth in this Agreement, and shall indemnify and hold harmless Supplier and its respective officers and directors from and against any loss, liability, cost or expense (including reasonable attorney’s fees) resulting from any such claim or action, and its settlement or compromise.

8.2 Subject to Section 8.3, Supplier shall defend, and/or handle at its own expense, any third-party claims or actions, arising from (i) any breach by Supplier of any of its representations or obligations set forth in this Agreement (ii) any misrepresentation or omission in any Content provided by or on behalf of Supplier in connection with the Services or at Marketplace@Novation, (iii) any claims brought by a third party, having a basis in contract or tort; in law or in equity, relating to any Products listed or sold by Supplier through Marketplace@Novation or otherwise relating to Supplier’s use of Marketplace@Novation or the Services, and shall indemnify and hold. harmless Novation, its Affiliates, and their respective officers and directors from and against any loss, liability, cost or expense (including reasonable attorneys’ fees) resulting from any such claim or action, and its settlement or compromise.

F-7

8.3 The party seeking indemnification under subsection 8.1 or 8.2, as the case may be (“ Indemnified Party ”), shall give prompt written notice to the other party (“ Indemnifying Party ”). In addition, the Indemnified Party shall allow the Indemnifying Party solely to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and shall provide the Indemnifying. Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim. The Indemnified Party reserves the right to retain counsel, at the Indemnified Party’s sole expense, to participate in the defense of any such claim. The Indemnifying Party, shall not settle any such claim or alleged claim without first obtaining the Indemnified Party’s prior written, consent, which consent shall not be unreasonably withheld, if the terms of such settlement would adversely affect the Indemnified Party’s rights under this Agreement.

8.4 The remedy provided under this Section 8 will be the Supplier’s sole and exclusive remedies in relation to claims and actions alleging intellectual property infringement.

9. LIMITATION OF LIABILITY

9.1 WITH THE EXCEPTION OF NOVATION’S OBLIGATIONS UNDER SECTION 8.1 IN NO EVENT WILL NOVATION BE LIABLE TO SUPPLIER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT HERETO OR ITS TERMINATION, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT, (INCLUDING NEGLIGENCE) AND IRRESPECTIVE OF WHETHER NOVATION HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT WILL NOVATION’S TOTAL LIABILITY TO SUPPLIER OR TO ANY THIRD-PARTIES UNDER THIS AGREEMENT HERETO EXCEED ONE THOUSAND DOLLARS.

9.2 NOVATION DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM MARKETPLACE@NOVATION AND OTHER PORTIONS OF THE INTERNET. ACTIONS OR INACTIONS OF THIRD PARTIES MAY RESULT IN SITUATIONS IN WHICH SUPPLIER’S CONNECTION TO THE INTERNET, AND/OR ACCESS TO MARKETPLACE@NOVATION MAY BE IMPAIRED, DISRUPTED OR DAMAGED. NOVATION CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR, AND ACCORDINGLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

10. TERM AND TERMINATION

10.1 Term . The Term of this Agreement will commence on the Effective Date and shall continue for a period of three (3) years. This Agreement will automatically renew for additional one-year Terms unless written notice of termination is provided by the terminating party to the non-terminating party not less than thirty (30) days prior to the expiration of the then-effective Term. No other terms and conditions will be effective or binding unless expressly agreed to by the parties in writing.

10.2 Termination . Any party hereto shall have the right to terminate this Agreement or any Schedule attached hereto in the event of a material breach of the terms hereof or thereof by

F-8

another party which is not cured within thirty (30) calendar days following receipt of written notice specifying the breach. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. In addition, this agreement shall terminate automatically in the event that Supplier has a single Supplier Agreement with Novation for the provision of its Products to the Members which has terminated.

10.3 Choice of Law . This Agreement will be governed by and. construed in accordance with the internal substantive laws of the State of Texas and the Texas courts will have jurisdiction over all matters relating to this Agreement.

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


NOVATION, LLC, a Delaware limited liability company		SUPPLER, a California corporation

By:	/s/ Larry Dooley	By:	/s/ J. Beyer
Title:	Vice President Novation Contract & Program Service	Title:	VP, National Accounts
Date:	8/30/05	Date:	August 15, 2005

F-9

Exhibit G

RETURN GOODS AND RECEIPT OF PRODUCT

RETURN GOODS POLICY :

Supplier’s policy for returning goods and receiving credit is as follows:

•

As Member or Authorized Distributor’s (collectively, “Purchaser”) sole remedy and Supplier’s sole responsibility with respect to any breach of the Product warranty, Supplier shall accept Product for return, and repair or replace such Product, provided that: (i) such Product is returned to Manufacturer due to nonconformity with the warranty provided in Section 12; (ii) such Product is returned to Manufacturer within the warranty period; and (iii) Purchaser must first request and obtain from Supplier a Return Material Authorization Number.

•

In the event of a general recall or a limited recall, whether directed by the Food and Drug Administration or voluntarily on the part of Supplier, Purchaser will be refunded for Products subject to such recall that are returned to Supplier by Distributor in the amount paid by Purchaser for such Products. All shipping costs will be paid by Supplier. All returns from Members will be handled on a direct basis between Supplier and such Member unless otherwise agreed by Supplier and Novation. Purchaser will maintain records of Product shipments, and as necessary to comply with appropriate federal, state or local authorities notification or handling of any customer complaints or other occurrences regarding the Products which are required by law to be so reported. Purchaser will notify Manufacturer of any such situations within 24 hours of becoming aware of any such occurrence.

Your Supplier key account manager will provide you with additional information on product returns.

•

RECEIVING - Damaged goods should be refused by the Purchaser. Freight damage should be noted on the carrier delivery papers and signed by the carrier driver and Supplier Customer Service Department notified in accordance with the procedure outlined below:

Any damage to product incurred during shipment from Supplier to the Purchaser should be refused.

Concealed shortages or damages within overpackers should be reported to Customer Service within 72 hours of delivery or credit will not be allowed.

Concealed shortages or damages within palletized shipments should be reported within 48 hours of delivery or credit will not be allowed.

Concealed shortages (manufacturer’s) within full cases should be reported to Customer Service immediately when encountered.

G-1

Any shipment discrepancy is to be noted on the carrier’s delivery papers. Purchaser is required to notify Customer Service within 48 hours of delivery in order for a credit and a replacement order to be processed.

G-2

LOGO

May 3, 2006

Greg Knapp

Senior Director

Contract Management

Novation

125 East John Carpenter Freeway

Irving, TX 75062

Re: Supplier Agreement # MS50662

Dear Greg:

Effective August 1, 2006 , MASIMO, Inc. and Novation, LLC hereby agree to make the following changes to Supplier Agreement #MS50662 .

(for pricing changes)

to Exhibit A of Agreement #MS50662 dated ( March 1, 2006 ) .

Populate table with item #, description, unit of measure, tiered pricing (if appropriate)

Include only items that have price changes from Exhibit A


Manuf. Item #	Item Description	Unit of Measure	Tier	Previous Price	New Price
*#123456*	*Ultra Design Widgit*	BX	1	[......]*	[......]*

(for product additions / deletions)

The following items will be (added, deleted, change in part number, etc.)


Manuf. Item #	Item Description	Price Tier I	Price Tier 2	Price Tier 3
*#123456*	*Ultra Design Widgit*	[......]*	[......]*	[......]*


COMMENTS	Mfg Item Number	ITEM DESCRIPTION	Price Tier 1	Price Tier 2	Price Tier 3
DELETE Part#	1884	Rad-5v Portable Oximeter, DCSC † (Refer to new Part#1 705)	[......]*	[......]*	[......]*
DELETE Part#	1883	Rad-5 Portable Oximeter, Premium, DCSC † (Refer to new Part #1802)
New Part#	1705	Rad-5v Portable Oximeter, DCSC † (FKA #1884)
New Part#	1802	Rad-5 Portable Oximeter, Premium, DCSC † (FKA #1883)
ADD	1277	LNOPV Ad, 24/Box
ADD	1902	LNCS to Intellivue Module
ADD	1116	LNOP Sensor Sample Pack, 4-Adt, 2-Pdt, 2-Neo, 2-NeoPt Adhesive Sensors
ADD	1282	LNOP Sensor Application Training Pack, 1-Adt, 1-Pdt, 1-Neo, 1-NeoPt, cotton swabs, 2 alcohol swabs, 1-foot w/app. Card
ADD	1365	SatShare Cable, DS03, Masimo


		1
		Amd. 1		* Confidential Treatment Requested


ADD	1789	SatShare Cable, MSOI, Masimo	[......]*	[......]*	[......]*
ADD	1805	MAC-1 & LNOP DC-195 Sample Kit
ADD	1806	Sample Kit, MAC-1 Adapter Cable, 2 LNOP Adt, 2 LNOP Pdt
ADD	1807	Sample Kit, MAC-1 Adapter Cable, 2 LNOP Neo-L, 2 LNOP Inf-L
ADD	1979	RadNet Interface Module, Wired
ADD	2023	SatShare Cable, D005, Masimo
ADD	2113	RadNet Interface Module, Wireless
ADD	2200	Rad-57cm Portable CO-Oximeter with CO & methemoglobin, Rainbow
ADD	2201	Rainbow DCI-dc3, Adult Reusable Direct Connect Sensor, 3 ft, 1/box; Sp02, SpCO and SpMET)
ADD	2202	Rain, DCI-dc12, Adult Reusable Direct Connect Sensor, 1/box (Sp02, SpCO and SpMET)
ADD	2203	LNOP Newborn Neonatal, 20/box, Neonatal Sensor
ADD	2204	LNOP Newborn Infant, 20/box, Neonatal Sensor
ADD	2207	Water Resistant Handheld Carrying Case, Black
ADD	2208	Water Resistant Handheld Carrying Case, Red
ADD	2223	SatShare Cable, DO06, Masimo
ADD	9019	Configurable, Rad-8, Horizontal
ADD	9020	Configurable, Rad-8, Vertical
ADD	9021	Configurable, Radical Docking Station RDS-1
ADD	9023	Configurable, Radical Docking Station RDS-3
ADD	9024	Configurable, Radical Docking Stn RDS-4, Blu LED, RS-232, SatShare
ADD	9030	Configurable R2 Radical Handheld, Blue Screen
ADD	12262	Operator’s Manual, Rad-9
ADD	12994	RadLink serial cable - RadLink to Radical, 12"
ADD	13017	Operator’s Manual, Rad-5/5v
ADD	13116	Operator’s Manual, IntelliVue - English
ADD	13179	RadLink Pager Belt Clip
ADD	13279	Operator’s Manual, Rad-57
ADD	13499	Model 404 PPO+, ECG & SpO2W/accys
ADD	13608	Operator’s Manual, Radical-7
ADD	13670	Terminal Server Kit (for wired system), 15 port
ADD	13671	Terminal Server Kit (for wired system), 31 port
ADD	13730	PPO+ Replacement Batteries, 2/box
ADD	13822	PPO+ LNOP-DCI Adult Reusable Sensor
ADD	13823	PPO+ LNOP-DCIP Pediatric Reusable Sensor
ADD	13824	PPO+ LNOP Cable, 4’ (use only with Masimo sensors)
ADD	13920	Operator’s Manual, RadLink
ADD	30475	Radical Series Handheld Case
ADD	30534	Radical Series Handheld Lock Key
ADD	30991	Operator’s Manual, RadNet
ADD	31068	Operator’s Manual, Rad-57cm
Update Description	1842	Rad-5/5v Protective Boot - Gray
Update Description	1847	Masimo SET IntelliVue Patient Cable
Update Description	1926	Replacement wrap for LNOP NeoPt-L and LNOP Newborn Neonatal sensors
Update Description	1927	AC-1 Patient Cable, LNOP sensor to Nellcor


		2
		Amd. 1		* Confidential Treatment Requested


		device, 12 foot
Update Description	1949	NRC-P8 Patient Cable, Philips 8-pin to SP02.COM, 3m, 1/box	[......]*	[......]*	[......]*
Update Description	1980	Handheld Protective Boot - Yellow
Update Description	1981	Handheld Protective Boot - Red
Update Description	1982	Handheld Protective Boot - Orange
Update Description	1645	AC-1 Adapter Cable, LNOP Sensor to Nellcor Patient Cable. 18 inch
Update Description	1799	Replacement Tapes LNOP Neo-L Sensors, 100/pack
Update Description	1801	Replacement Tapes LNOP Inf-L and LNOP Newborn Infant Sensors, 100/pack

Include rationale for price changes item additions and deletions:

Additions reflect products related to pulse oximetry and for use with existing contracted items

Part no. change from PN#1884 to new PN#1705

Part no. change from PN#1883 to new PN#1802

Description Changes reflect additional product detail and information

Please indicate your acceptance of the foregoing by signing the duplicate originals in the space provided below and returning one signed original.

Sincerely,

/s/ Jim Beyer

Jim Beyer

VP, National Accounts

AGREED AND ACCEPTED this 18 day of July, 2006.


Novation

By:		/s/ Greg Knapp

Printed Name:

Title:


		3
		Amd. 1		* Confidential Treatment Requested

LOGO

May 18, 2006

Greg Knapp

Senior Director, Contract Management

Novation

125 East John Carpenter Freeway

Irving, TEX 75062

Re:	Supplier Agreement # MS506612

Dear Greg:

Effective June 1, 2006 , Masimo Corporation and Novation, LLC hereby agree to make the following changes to Supplier Agreement # MS50662 .

Revise the Letter of Participation as per the attached file which includes the following updates:

•

Add Product Category and Contract Number: ‘Pulse Oximetry Equipment and Sensors (MS50662)”

•

Add ‘MEMID NO.’

•

Add ‘Masimo Account NO.’

•

Update Tier Descriptions:

^¡

Tier 1 – ‘Access Tier; Available to all Members’

^¡

Tier 2 – […***…]

^¡

Tier 3 – ‘IDN Tier – […***…]

Sincerely,

/s/ Jim Beyer

Jim Beyer

Vice President, National Accounts

AGREED AND ACCEPTED

Novation


By:		/s/ Greg Knapp				Date:		6/8/06

Greg Knapp

Senior Director, Contract Management


		1
		Amd. 2		* Confidential Treatment Requested

LETTER OF PARTICIPATION

Masimo Corp. Pulse Oximetry Equipment and Sensors (MS50662)

VHA or UHC Member, affiliate:

Address:

City/State/ZIP:

Telephone No.:

Fax No.:


E-mail Address:

MEMID No.:

Masimo Account No.:

Distribution:

¨ Direct from Masimo ¨ Authorized Distributor

Authorized Distributor:

Branch Location (City/State):

Please be advised that the above-named VHA or UHC member chooses to use products covered under the Novation contract reference above. Please ensure that member receives correct Novation contract pricing and all other value-added services and benefits contained on this contract. Properly credit and report to Novation all purchases made by member as per the terms of this Agreement.

Select one volume tier by initialing below:


MEMBER INITIALS	VOLUME TIERS	TOTAL PRODUCT PURCHASES ($ PER CALENDAR YEAR)
	Tier 1	Access Tier; Available to all Members
	Tier 2	[…***…]
	Tier 3	IDN Tier – […***…]

VHA/UHC Member or Affiliate

Authorized Signature:

Print Name/Title:

Date:

Masimo Sales Representative:


Submitted by:		Phone No.:
Member ID No.:		Date:
Copy and fax to: Novation Contract Administration at 877 / NOVAFRM (668-2376) and to Masimo Contract Membership, at (949) 297.7499. Problems? Contact us at novafrm@novationco.com


		2
		Amd. 2		* Confidential Treatment Requested

LOGO

August 10, 2006

Greg Knapp

Senior Director

Contract Management

Novation

125 East John Carpenter Freeway

Irving, TX 75062

Re: Supplier Agreement # MS50662

Dear Greg:

Effective September 15, 2006 , MASIMO, Inc. and Novation, LLC hereby agree to make the following changes to Supplier Agreement #MS50662 .

to Exhibit A of Agreement #MS50662 dated ( March 1, 2006 ) .

Populate table with item #, description, unit of measure, tiered pricing (if appropriate) Include only items that have price changes from Exhibit A


Manuf. Item #	Item Description	Unit of Measure	Tier	Previous Price	New Price
[2050	Rad-57 Handheld Pulse Oximeter	BX	1	[…***…]	[…***…]
2050	Rad-57 Handheld Pulse Oximeter	BX	2
1603	Rad-9 Pulse Oximeter	EA	1
1603	Rad-9 Pulse Oximeter	EA	2
1603	Rad-9 Pulse Oximeter	EA	3
9019	Configurable, Rad-8, Horizontal Pulse Oximeter	EA	1
9019	Configurable, Rad-8, Horizontal Pulse Oximeter	EA	2
9019	Configurable, Rad-8, Horizontal Pulse Oximeter	EA	3
9020	Configurable, Rad-8, Vertical Pulse Oximeter	EA	1
9020	Configurable, Rad-8, Vertical Pulse Oximeter	EA	2
9020	Configurable, Rad-8, Vertical Pulse Oximeter	EA	3

The following items will be (added, deleted, change in part number, etc.)


Manuf. Item #		Item Description		Price Tier 1		Price Tier 2		Price Tier 3

Include rationale for price changes, item additions and deletions:

Price reduced on Tier 1&2 to reflect same price as Tier 3 on part no. #2050; establishes uniform flat-rate price.

Please indicate your acceptance of the foregoing by signing the duplicate originals in the space provided below and returning one signed original.

Sincerely,

/s/ Jim Beyer

Jim Beyer

VP, National Accounts


		1

		Amd. 3		* Confidential Treatment Requested

AGREED AND ACCEPTED this day of , 2006.


Novation

By:		s/ Greg Knapp

Printed Name:

Title:


		2
		Amd. 3

Exhibit 10.23

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

PREMIER PURCHASING PARTNERS, L.P.

GROUP PURCHASING AGREEMENT – CAPITAL EQUIPMENT

COVER SHEET

CONTRACT SHEET

Contract Number: PP-NS-347



1. The “Parties” to this Group Purchasing Agreement are: Premier Purchasing Partners, L.P. (“Purchasing Partners”) 2320 Cascade Pointe Boulevard Charlotte, NC 280208 Attention: Vice President, Group Purchasing 704.357.0022 704.357.6611 (fax) Contract Mgr/Directors: Chris Dismuke		Masimo Corporation (Seller) 40 Parker Road Irvine, CA 92618 Attention: Jim Beyer, VP, National Accounts 949-297-7011 (phone) 949-751-8348 (fax)

2. Product Category:		Pulse Oximeters

3. Effective Date:		3/1/2006

4. Expiration Date:		12/31/2008

5. Term of Agreement (months):		34 Months

6. Purchasing Partners Administrative Fee:		[...***...] (Section 10.1)

7. Large Order Dollar Threshold:		NA

8. Administrative Fee Payment Frequency		Monthly (section 10.2)

9. Early Payment Discount		NA

10. HIPAA CERTIFICATION Seller to initial here if Seller is NOT a Business Associate within the meaning of 45 C.F.R. § 160.103, in which case the attached HIPAA Addendum is NOT applicable.

This Group Purchasing Agreement (the “Agreement”) is comprised of the following documents and is entered into by the Parties as of the effective Date set forth in Item 3 above: i. This Cover Sheet ii. The attached Purchasing Partners Standard Terms and Conditions iii. The attached Additional Terms and Conditions (if any) iv. The attached HIPAA Addendum (if applicable); and v. The following attached exhibits


Exhibit A: Products and Services		Exhibit G: Seller Information Sheet

Exhibit B: Membership Roster Access Instructions		Exhibit H: Intentionally Omitted

		* Confidential Treatment Requested

PREMIER PURCHASING PARTNERS, L.P.

GROUP PURCHASING AGREEMENT - CAPITAL EQUIPMENT

GROUP PURCHASING AGREEMENT - CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347


Exhibit C: Authorized Distributors		Exhibit I: Additional Warranties

Exhibit D: Reporting Formats Access Instructions		Exhibit J: Intentionally Omitted

Exhibit E: Payment Instructions		Exhibit K: Seller’s Returned Goods Policy

Exhibit F: Minority, Woman-Owned and Small Business Policy		Exhibit L: Ordering Instructions

PREMIER PURCHASING PARTNERS, L.P.		SELLER: Masimo Corporation

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

CONTRACT NUMBER: PP-NS-347


By:	PREMIER PLANS, L.L.C.,
Its General Partner

By:	/s/ John H. Biggers	By:	/s/ Jim Beyer
Printed Name: John H. Biggers		Printed Name: Jim Beyer

Title:	Group Vice President, Sourcing	Title:	Vice President, National Accounts

By:	/s/ John W. Hargette
Printed Name: John W. Hargette
Title:	Vice President, Sourcing

WHEREAS, Purchasing Partners is an affiliate of Premier, Inc. (“Premier”), and an alliance of hospitals and health care organizations.

WHEREAS, Premier’s core objective is to improve the health of communities.

WHEREAS, such core objective as well as the objective of helping to assure that patients receive safe and efficacious care can be accomplished in part, by achieving economies of scale and innovations through group strategies and shared resources;

WHEREAS, group purchasing is a fundamental way hospitals and health systems cooperate to reduce the costs of providing health services;

WHEREAS, Premier’s capital equipment group purchasing operated is operated by Purchasing Partners;

WHEREAS, Seller is a manufacturer and supplier of capital equipment;

WHEREAS, Seller has offered to provide Products and services to the Premier membership consistent with the terms of this Agreement;

WHEREAS, Purchasing Partners has committed to comply with the Best Ethical Practices for the Group Purchasing Industry, prepared by Professor Kirk O. Hanson and released on October 23, 2002 (the “Best Ethical Practices”), the requirements of the Health Industry Group Purchasing Association Code of Conduct, adopted on July 24, 2002 (the “HIGPA Code”), and the additional commitments made by Purchasing Partners to Senator Herb Kohl and Senator Mike DeWine of the Subcommittee on Antitrust, Competition and Business and Consumer Rights in a letter dated August 5, 2002, (the “Additional Commitments”). The Best Ethical Practices, HIGPA Code and Additional Commitments are referred to collectively herein as the “Premier Ethical Standards”.

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

WHEREAS, by entering into this Agreement with Seller it is Purchasing Partners’ expectation that Seller, in its dealings with Purchasing Partners under this Agreement, will respect Purchasing Partners’ commitment to comply with the Premier Ethical Standards.

NOW THEREFORE, in consideration of the mutual promises contained herein and other good and sufficient consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto agree as follows:

1. TERM OF AGREEMENT . This Agreement will remain in effect for the period of time set forth in Item 5 of the Cover Sheet.

2. PRODUCTS COVERED . Seller hereby agrees to provide the products and services described in Exhibit A hereto (referred to herein as “Products” and “Services”) pursuant to the terms of this Agreement. Upon Purchasing Partners’ request, Seller shall provide Purchasing Partners with written notice of any Products in Exhibit A which are not manufactured by Seller (i.e., those Products which are manufactured by a third party), setting forth the Product name and the name of the actual manufacturer. Any additions or deletions of Products from Exhibit A shall not be effective unless evidenced by an amendment signed by both Parties. Nothing in the foregoing restricts Seller from discontinuing Products on […***…] prior written notice to Purchasing Partners.

Seller hereby represents and warrants that the technology contained in the Products is the latest technology currently available from Seller with respect to the Products’ functions and any new versions of the Products or enhancements to the Products (including without limitation evolutionary versions, software and/or hardware upgrades or new releases) which offer improved effectiveness or functionality shall be referred to herein as “Improvements”. Additionally, Seller warrants that all Products covered under this Agreement, shall be capable of being upgraded to the next generation platform, whenever the next generation products become commercially available. In the event Seller begins marketing Improvements at any time within twelve months of the sale of any Products hereunder, Seller shall provide such Improvements free of charge to Participating Members which purchase or have purchased Products during such 12-month period under this Agreement which do not contain the Improvements. In addition, should any of the Products covered under this Agreement not be compatible with and/or capable of being upgraded to match the performance of the next generation products, Seller shall provide a replacement of the Products at no charge to Participating Members.

3. PARTICIPATING MEMBERS . Set forth in Exhibit B of this Agreement are instructions for accessing and downloading the list of Premier members (“Participating Members”), who shall have the right to purchase Products and services in accordance with this Agreement. The list of Participating Members (the “Membership Roster”) may be amended by Purchasing Partners from time to time and Purchasing Partners reserves the right to provide the Membership Roster in other suitable forms. The Parties hereto acknowledge that Participating Members may include entities/facilities which are accessing the benefits of this Agreement

* Confidential Treatment Requested

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

through participation in the group purchasing programs operated by Purchasing Partners’ affiliate, Provider Select, LLC (“Provider Select”) rather than Purchasing Partners itself. Such entities/facilities shall nonetheless be deemed Participating Members under this Agreement. Seller shall be responsible for routinely maintaining the current Membership Roster. New Participating Members added to the Membership Roster shall be eligible to participate under this Agreement upon the relevant date set forth in the Membership Roster. Seller shall stop providing the pricing set forth herein to entities removed from the Membership Roster within thirty (30) days following the applicable date of removal set forth in the Membership Roster.

On a quarterly basis, Seller shall provide Purchasing Partners with written notice of any Participating Members which are also members of group purchasing organizations other than Purchasing Partners (such notice is referred to as the “Dual Membership Notice”). Seller shall have no right to challenge or contest its obligation to pay Purchasing Partners administrative fees in accordance with Section 10.1 with respect to any Participating Members which are not listed in the Dual Membership Notice for the applicable quarter.

4. PARTICIPATION REQUIREMENTS . In order to be entitled to the pricing terms (described in Exhibit A hereto), Participating Members shall comply with the participation requirements set forth in Exhibit A.

5. TERMINATION OF EXISTING CONTRACTS . Any Participating Member desiring to avail itself of the benefits of this Agreement may, , terminate any existing contract(s) or other arrangement(s) with Seller for the purpose of participating in the group purchasing arrangement set forth in this Agreement, except as follows: the foregoing does not entitle a Participating Member to terminate (i) any Product lease or (ii) any other agreement in which Participating Member has an obligation to purchase a specific or determinable quantity of equipment, sensors or other products from Seller over a specified time period.

6. ORDERING; SHIPPING; DELIVERY .

6.1 Authorized Distributors . All Products purchased pursuant to this Agreement by Participating Members which are not purchased directly from Seller, where applicable, may be purchased from and through one of Seller’s authorized distributors (“Authorized Distributors”). A list of all current Authorized Distributors is set forth in Exhibit C. Seller warrants that it shall not make any change or take any action with respect to Authorized Distributors which, if implemented, would materially increase the ultimate delivered price paid by the Participating Member.

6.2 Payment Terms . For all Product(s) requiring installation by Seller, one hundred percent (100%) of the purchase price must be paid within forty-five (45) days following delivery of applicable Product(s) or receipt of invoice, whichever date is later for Product(s) not requiring installation by Seller, one hundred percent (100%) of the purchase price must be paid within forty-five (45) days. Any early payment discount is set forth in Item 9 of the cover sheet.

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

Payment terms for Products purchased from an Authorized Distributor will be negotiated between each Participating Member and the Authorized Distributor.

6.3 Ordering Shipping Terms . Orders directly from Seller shall be placed by telephone, telecopier or through electronic order entry in accordance with the ordering instructions set forth hereto as Exhibit L. Order processing procedures for orders placed with Authorized Distributors will be negotiated between each Participating Member and the Authorized Distributor. Except as otherwise provided below, all shipments of products directly to Participating Members or to Authorized Distributors from Seller shall be Net F.O.B. origin, with all costs of transportation and insurance being paid by Seller, with the exception of special delivery and/or air shipments requested by Participating Members. Such special delivery and/or air shipment charges shall be prepaid by Seller and invoiced to the requesting Participating Member for such member’s payment pursuant to the payment terms set forth in Section 6.2 of this Agreement. Title and risk of loss shall transfer to Participating Members upon shipment. Seller shall provide shipment notification to Participating Member at time of shipment. In the event of damage or loss, Seller shall assist in facilitating freight claims. Shipping terms for Products purchased from and shipped by an Authorized Distributor to a Participating Member will be negotiated between the applicable Participating Member and Authorized Distributor. Notwithstanding the foregoing, if a Participating Member in its sole discretion establishes a freight management program, including without limitation a program whereby the Participating Member uses a third party for inbound freight management or services (a “Member Freight Program”), Seller shall work in good faith to accommodate such Member Freight Program at no additional cost to the Participating Member. To the extent a Participating Member makes use of a Member Freight Program, Seller agrees that such Participating Member or its agent will be responsible for paying for freight services and related costs directly and Product pricing shall be reduced accordingly. Shipping terms for Products which are subject to a Member Freight Program will be negotiated between the applicable Participating Member and any involved third parties.

6.4 Minimum Order . Seller shall have no minimum purchase order requirement applicable to any or all Participating Members. For Products purchased from an Authorized Distributor, any minimum order purchase requirement will be negotiated between each Participating Member and the Authorized Distributor.

6.5 Guarantee of Delivery . If Seller fails to deliver any Product(s) within the agreed-upon time periods set forth in Exhibit A hereto, the Participating Member in its sole discretion may either: (a) purchase any substitute product(s) from another source or sources and Seller shall reimburse such member for the difference between such member’s actual F.O.B. destination acquisition cost for such product(s) and the price(s) such member would have paid for Seller’s Product(s) under this Agreement; or (b) terminate without penalty the obligations of such member under this Agreement and any other agreement related to the Product(s), including without limitation any purchase order for the Product(s), and Seller shall immediately refund to

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Seller: Masimo Corporation		Contract Number: PP-NS-347

such member all funds paid for the Product(s) and any related materials. Upon the request of any Participating Member, Seller will assist any such Participating Member in finding alternative acceptable sources for any Product(s) which Seller cannot deliver according to agreed-upon time periods.

For orders placed with an Authorized Distributor, and orders that are subject to a Member Freight Program, guarantee of delivery provisions will be negotiated between each Participating Member and the Authorized Distributor and/or the third parties involved in the Member Freight Program (“Member Freight Managers”). If the Authorized Distributor or Member Freight Manager fails to deliver any Product(s) within the foregoing negotiated time period because Seller has failed to provide the Product(s) to the Authorized Distributor or Member Freight Manager, the Participating Member may purchase any substitute product(s) from another source(s), and Seller shall reimburse such member for the difference between such member’s actual F.O.B. destination acquisition cost for such product(s) and the price(s) such member would have paid for Seller’s Product(s) under this Agreement, provided that Seller is notified by the Participating Member of such failure to deliver and cannot provide an alternative Product acceptable to the Participating Member at the same price. Upon the request of any Participating Member, Seller will assist any such Participating Member in finding alternative acceptable sources for any Product(s) which an Authorized Distributor cannot deliver according to the guaranteed delivery time specified above.

6.6 Guarantee of Delivery under Emergency Conditions . In the event of a natural disaster or industry wide shortage of Products under (“Emergency Condition”), Seller agrees to give priority to orders placed by Premier Members for Products during the duration of the Emergency Condition. Seller will use best efforts to set aside an adequate quantity of Products for the exclusive purchase by Participating Members for the the duration of the Emergency Condition.

6.7 Installation . Included in the price of the Product(s), Seller will be fully responsible for performing all tasks necessary to install the Product(s), including without limitation, uncrating, unpacking, removal of packing material, field assembly, interconnection, calibration and testing to ensure that the Product(s) conform(s) to the product specifications set forth in Exhibit H (“Specifications”) and is completely ready to perform all procedures for which it is designed and marketed by Seller.

6.8 Acceptance . “Acceptance” of Products by Participating Members shall be deemed to have occurred when Seller and the applicable Participating Member in good faith mutually agree in writing that the Product(s) is/are (a) operating according to Specifications and (b) completely ready for clinical use. In addition, each Participating Member shall have the option, at its own expense, to test the Product(s), to confirm the safety, reliability and performance of the Product(s) and to perform corollary or parallel testing to verify the accuracy of the Product(s)’ performance. Unless otherwise agreed by Seller, Participating Members shall accept or reject Products within thirty (30) days after the date of installation (or delivery, in the

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Seller: Masimo Corporation		Contract Number: PP-NS-347

case of Products not requiring installation). In case of rejection, Seller shall have 30 days to cure any basis for refection.

Seller shall make available for use by Participating Members at no additional charge all necessary test equipment. Further, Participating Members shall have the right to purchase test equipment from Seller at Seller’s most favorable current price offered to any of its other customers. Seller shall provide Participating Members at no additional charge any available quality assurance and performance testing procedure materials and forms.

6.9 Rejection of Products . Participating Members shall have the right to reject any Product(s) within thirty (30) days after the date of installation (or delivery, in the case of Products not requiring installation), based on any of the following reasons (referred to herein as “Rejection Events”): (a) visible defects in the Product(s) or visible damage to packaging, (b) any failure of the Product(s) to operate in accordance with Specifications, Seller will, upon written notice from such Participating Member of any Rejection Event, either replace or repair the Products within 30 days or cause the removal of the Product(s) and immediately refund to the Participating Member all funds paid for the Product(s) and any related materials. In the event Product(s) are rejected by Participating Members due to the Rejection Events described in (a) or (b) above, all expenses related to the removal of the applicable Product(s) shall be borne by Seller. Further, in the event Product(s) are rejected by Participating Members due to the Rejection Events described in (b) above, the Participating Member in its sole discretion may also: (i) purchase any substitute product(s) from another source or sources and Seller shall promptly reimburse such member for the difference between such member’s actual F.O.B. destination acquisition cost for such product(s) and the price(s) such member would have paid for Seller’s Product(s) under this Agreement; and/or (ii) terminate without penalty the obligations of such member under this Agreement and any other agreement related to the Product(s), including without limitation any purchase order for the Product(s). In the case of Rejection Events (b), all expenses related to necessary modifications to Participating Members’ facilities required in order to substitute other products shall also he borne by Seller.

Notwithstanding anything to the contrary herein, Participating Members shall not have the right to return Products which are considered disposable or consumable if such Products’ useful shelf-life has expired (as identified on the product label). All such disposable/consumable Product(s) must be returned in original packages, cases, or cartons. In no event shall Seller have the right to charge a restocking fee in connection with any returns of Product(s) under this Agreement. Seller’s return goods policy, if any, is set forth in Exhibit K.

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Seller: Masimo Corporation		Contract Number: PP-NS-347

7. PRICING TERMS .

7.1 Pricing; Discounts; Trade-Ins .

7.1.1 Exhibit A . Product pricing is set forth in Exhibit A hereto. Unless otherwise agreed by the parties, all discounts provided for in this Agreement (including without limitation large order discounts) shall be calculated off list price.

7.1.2 Price Protection . Throughout the term of this Agreement, Seller shall not increase any of the prices set forth in Exhibit A.

7.1.3 Large Orders . In the event a single order equals or exceeds the “large order” dollar threshold set forth in Item 7 of the Cover Sheet, Seller shall grant additional discounts as negotiated between Seller and applicable Participating Members. Seller shall provide Purchasing Partners advance notice of any order qualifying for a “large order” discount or incentive.

7.1.4 Trade-ins . Seller shall also grant trade-in allowances applied to the purchase of the Product(s). The reasonable value of such allowances shall be based on the model, age, condition and volume of trade-in items. Trade-in allowance shall be deducted off the net price (List price less discount).

7.1.5 Special Promotions . Seller may, on occasion and with Purchasing Partners prior consent, offer special promotions. Any such promotion will be offered to all Participating Members and will be limited to the terms and conditions of the specific promotion. All such promotions shall be coordinated by Seller through Purchasing Partners.

7.2 Competitive Pricing . Subject to applicable law, Seller represents and warrants that the prices, terms and conditions offered by Seller to Purchasing Partners through this Agreement shall, at all times, be at least as good as those offered to any other customer which purchases a comparable volume of Products relative to the volume purchased by Participating Members hereunder. Further, Seller represents and warrants that the prices, terms and conditions offered under this Agreement are proportionally better than the prices, terms and conditions offered to any other customer which purchases a lower volume of Products relative to the volume purchased by Participating Members hereunder. Seller also agrees to extend any terms or pricing offered to an individual Participating Member to all Participating Members. Notwithstanding any other provision of this Agreement, upon obtaining the prior written consent of Purchasing Partners (which may be withheld in Purchasing Partners’ sole discretion), Seller may, under certain circumstances (e.g., Beta testing, research and development related activities) and for a specified reasonable period of time, offer special acquisition programs to certain designated Participating Members, the terms of which shall be mutually agreed upon by Seller, Purchasing Partners and such Participating Members.

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Seller: Masimo Corporation		Contract Number: PP-NS-347

7.3 Pricing of New Products . Pricing for any additional and/or new Products which the Parties mutually agree to add to Exhibit A will be negotiated at prices consistent with the prices of Products already covered by this Agreement. Seller agrees to inform the Purchasing Partners contract director/manager responsible for this Agreement (as set forth on the Cover Sheet) of new Products (branded or generic) that Seller plans to introduce to the market at least 60 days prior to the introduction of such new products to the market. Upon Purchasing Partners’ request, Seller also agrees to provide to Purchasing Partners, as soon as practical, a copy of the summary basis of approval or medical officer’s report for new Products approved by the FDA.

7.4 Group Buy Programs . From time to time, Purchasing Partners may request that Seller participate in group buy programs whereby Seller provides designated Products to a defined group of Participating Members at additional discounts (over and above the discounts set forth herein) for a limited period of time (“Group Buy Programs”). Seller shall use best efforts to participate in and support Group Buy Programs. Seller’s participation in any such Group Buy Programs shall be subject to the terms and conditions of this Agreement and described in an amendment hereto executed by both Parties.

8. MARKETING; SALES SUPPORT; TRAINING .

8.1 Seller Representatives . Seller will provide representatives to call upon Participating Members on a periodic basis mutually agreed to by Seller and each individual Participating Member.

8.2 User Training . Seller will provide at no additional charge user training related to the Products, including without limitation, clinical training, applications and in-service training, as reasonably required or requested by each Participating Member. Seller will maintain a properly qualified training staff to provide such training, and Seller will be solely responsible for any expenses for staff travel, room and board related to such training. The scheduling of training shall be coordinated directly with each Participating Member and shall accommodate all shifts that require training.

Seller will also provide to the Participating Member at no additional charge a written training guide and/or set of training video tapes to be used for future training by Participating Member staff.

Also included in the price of the Product(s), Seller shall supply Participating Members with the following items prior to or at the time of delivery of the Product(s): (a) two (2) copies of operator manuals covering all equipment and accessories; and (b) two (2) copies of complete service manuals detailing all equipment and accessories including, without limitation, parts lists and schematic diagrams. Seller shall provide at no additional charge all updates to manuals and final versions (where applicable) of manuals throughout the useful life of the Product(s). Participating Members shall have the right to make copies, for internal purposes only, of any training materials provided by Seller.

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Seller: Masimo Corporation		Contract Number: PP-NS-347

8.3 Biomedical Training; Technical Programs . Seller will make available at no additional charge factory service school training including travel, room and board, for one person designated by each Participating Member which purchases Product(s) hereunder. Seller shall make such training available to other persons designated by Participating Members and Purchasing Partners at the rates set forth in Exhibit A hereto. Seller will allow video recording of training sessions for future use by Participating Members provided the Participating Members sign a mutually acceptable non-disclosure agreement related to the use of such video. If possible, training shall be provided at regional locations to accommodate several Participating Members at the same time. Participating Members and Purchasing Partners agree that this training shall be for internal, non-commercial use.

Factory service school training will include the same course content used in the training program for Seller’s service organization as it relates to the Product(s). Standard prerequisites as defined in Seller’s course outline and involving minimum technical competencies must be met before any individual may attend a given course.

Seller shall commence training activities during installation of the Product(s). Seller agrees to allow Participating Members, the designees of Participating Members and Purchasing Partners employees to observe the installation process.

8.4 Demonstration Models for Evaluation . Upon the request of Purchasing Partners or Participating Member, Seller shall provide demonstration models, where practical, of the Product(s) and any appropriate consumables/disposables required to operate and evaluate the Product(s) to any Participating Members at no charge for a mutually agreed upon time period.

8.5 Service and Maintenance Agreements . The form of Seller’s service and maintenance agreement(s), which include pricing and service descriptions, is set forth as Exhibit J hereto. Such form agreement(s) are subject to Purchasing Partners’ prior approval.

8.6 Replacement Parts . Seller will provide all replacement parts for the Product(s) within twenty-four (24) hours of Participating Member’s request. All replacement parts for the Product(s) will be available for not less than seven (7) years following the earlier of either (a) the date when Seller ceases to sell the Product(s) or a reasonable substitute of the Product(s) or (b) the expiration of the warranty period referenced in Section 12.2, including all extensions thereto, if applicable. Included in the price of the Product(s), Seller shall provide all software and hardware modifications necessary to meet regulatory requirements.

8.7 Downtime Protection . “Downtime” means the period of time during a Product’s normally scheduled hours of operation that the Participating Member owning the Product determines in good faith that the Product is not available for clinical use during the term of such Product’s warranty and/or any service agreement that exists between such Member and Seller. Downtime will commence upon the Participating Member’s telephone notice to Seller’s dispatcher that a Product is not available for clinical use and will end when the Participating

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Seller: Masimo Corporation		Contract Number: PP-NS-347

Member and Seller in good faith mutually agree in writing that the Product is available for clinical use and is operating according to Specifications.

It is agreed that Products will be available for routine clinical use (“Uptime”) at a level of at least ninety-six percent (96%) measured every six months. The measurement criteria for calculating Uptime is the Participating Member’s elected coverage hours of: a hours per day, b days per week for 26 weeks, less c hours spent on planned maintenance during that interval. Therefore, the number of hours of Uptime required to meet Seller’s Uptime guarantee is equal to: [(a x b x 26) - c] x .96.

Should any Product covered under this Agreement fail to meet the Uptime guarantee of 96% in any six month period, Seller will provide an extension of the term of the applicable service agreement or warranty with respect to that Product at no additional charge. Seller will extend the warranty or service agreement by one month for each 1% (e.g., if uptime is determined to be 93%, such extension would be 3 months [96% - 93% = 3% = 3 month extension]).

8.8 Operating Software . Included in the price of the Product(s), Participating Members will be entitled to receive the following software (“Operating Software”): (a) all software updates which maintain existing capabilities and enable the Product(s) to perform in accordance with the Specifications; and (b) any software necessary to standardize Product(s) for service maintenance. Operating Software shall be provided to Participating Members regardless of whether Participating Members purchase service contracts from Seller. Seller shall make available for purchase by Participating Members any software upgrades which allow the Product(s) to exceed performance electronic Specifications.

8.9 Diagnostic Software . Seller shall provide diagnostic software upon the reasonable request of Purchasing Partners and/or Participating Members for the sole purpose of maintaining and repairing the Product(s): Any license agreement to use such software shall be included in Exhibit K hereto.

8.10 DICOM Conformance . Upon the reasonable request of Purchasing Partners or any Participating Member, Seller shall supply a DICOM Conformance statement which outlines the Products’ functionality with respect to the following service classes: verification, storage, query/retrieve, study content notification, print management, patient management, study management, and results management.

8.11 HL7 Compliance . The Products shall be capable of bi-directional communication with Participating Members’ existing information systems that are HL7 compliant. Upon the reasonable request of any Participating Member, Seller shall provide at no additional charge any hardware and software components/upgrades necessary for the Products to achieve such HL7 compliant bi-directional communication.

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Seller: Masimo Corporation		Contract Number: PP-NS-347

9. PRODUCT PRICING INFORMATION; SALES DOCUMENTATION; ADMINISTRATIVE FEE REPORTING .

9.1 Product Pricing Information (Sales Catalogs) . Seller will provide to Purchasing Partners product pricing information according to delivery instructions and in the ANSI X.12 format via EDI VAN Services as described on Purchasing Partners’ web-site. Instructions for accessing such reporting information on Purchasing Partners’ web-site are set forth in Exhibit D. If Seller cannot provide product pricing information in such format, Seller may utilize the alternative format as detailed on Purchasing Partners’ web-site. Purchasing Partners shall have the right to update Exhibit D as well as the delivery and reporting format guidelines on its web-site from time to time upon notice to Seller. Further, Purchasing Partners shall have the right to disclose all such pricing information to Participating Members. In the case of electronic transfer of data, the file format described on Purchasing Partners’ web-site must be used.

9.2 Sales Documentation . Seller will provide Purchasing Partners with monthly reports of all Products purchased by and delivered to each Participating Member during each calendar month of the term. Seller shall provide Purchasing Partners such reports no later than thirty (30) days after the last day of the applicable calendar month. Reports will include, without limitation, reporting period start and end dates, Participating Member name, city, state, and monthly sales volume per Product (totaled per Participating Member). Participating Members will be identified by HIN number, DEA number, and/or, as noted in the Membership Roster, the Premier Entity Code number. Seller will provide such sales information according to the delivery instructions and in the ANSI X.12 format via EDI VAN Services as described on Purchasing Partners’ web-site. Instructions for accessing such reporting information on Purchasing Partners’ web-site are set forth in Exhibit D. If Seller cannot provide such information in such format, Seller may utilize the alternative format detailed on Purchasing Partners’ web-site. Purchasing Partners shall have the right to update Exhibit D as well as the delivery and reporting format guidelines on its web-site from time to time upon notice to Seller. In the case of electronic transfer of data, the file format described on Purchasing Partners’ web-site must be used.

9.3 Administrative Fee Reporting . Seller will provide Purchasing Partners with monthly reports setting forth the Purchasing Seller: Masimo Corporation Partners Administrative Fee (as defined in Article 10 below) amounts generated by each Participating Member during each calendar month of the term. Seller shall provide Purchasing Partners such reports no later than thirty (30) days after the last day of the applicable calendar month, Participating Members will be identified by 14IN number, DEA number, and/or, as noted in the Membership Roster, the Premier Entity Code number. Seller will provide such information according to the delivery instructions and in the ANSI X.12 format via EDI VAN Services as described on Purchasing Partners’ web-site. Instructions for accessing such reporting information on Purchasing Partners’ web-site are set forth in Exhibit D. If Seller cannot provide such information in this format,

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Seller: Masimo Corporation		Contract Number: PP-NS-347

Seller may utilize the alternative format as detailed on Purchasing Partners’ web site. Purchasing Partners shall have the right to update Exhibit D as well as the delivery and reporting format guidelines on its web-site from time to time upon notice to Seller. In the case of electronic transfer of data, the file format described on Purchasing Partners’ web-site must be used.

9.4 Participating Members’ EDI Transaction Sets . Seller shall use best efforts to accommodate the requests of Participating Members with respect to Seller’s use of Electronic Data Interchange ANSI X.12 Transaction Sets, including without limitation, Transaction Sets 810 (invoice), 820 (payment order/remittance advice), 832 (price/sales catalog), 850 (purchase order), 855 (purchase order acknowledgment), 856 (ship notice/manifest), 844 (product transfer account adjustment), and 849 (response to product transfer account adjustment [or charge back or rebate]).

9.5 Supplier Qualification Review Process and Quality Standards Information . Seller shall comply with Purchasing Partners’ requests for information necessary to assure the qualification of the Seller as an eligible Seller consistent with the requirements of Purchasing Partners’ Supplier Qualification Review Process. Seller shall also comply with requests by Purchasing Partners’ or Participating Members for information necessary to assure the quality of Services, to include responses to Contract Products/Supplier Experience Reports as provided to Seller by and pursuant to the directions of Purchasing Partners.

9.6 Discount and Rebate Reports . Seller will provide Purchasing Partners with quarterly reports of all discounts or rebates paid or credited to Participating Members (other than discounts reflected in the actual purchase price) with respect to the Products purchased by each Participating Member. Such reports should identify any and all discounts, rebates or other amounts that are required to be disclosed as a discount or otherwise on a Medicare cost report. Seller shall provide Purchasing Partners such reports no later than thirty (30) days after the last day of the applicable calendar quarter. Reports will include, without limitation, reporting period start and end dates, Participating Member name, city, state, and the amount of the discount or rebate per Product (totaled per Participating Member). Participating Members will be identified by HIN number, DEA number, and/or, as noted in the Membership Roster, the Premier Entity Code number. Seller will provide such information according to the instructions and in the ANSI X.12 format via EDI VAN Services as described in Premier’s Electronic Reporting Formats Guide (the “PERF Guide”) located on Purchasing Partners’ web-site. Instructions for accessing such reporting information on Purchasing Partners’ web-site are set forth in Exhibit D. If Seller cannot provide such information in such format, Seller may utilize the alternative format detailed in the PERF Guide located on Purchasing Partners’ web-site. Purchasing Partners shall have the right to update the PERF Guide as well as Exhibit D from time to time upon notice to Seller. All data submissions by Seller to Purchasing Partners must follow the file format described in the PERF Guide.

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Seller: Masimo Corporation		Contract Number: PP-NS-347

9.7 Failure to Provide Reports . Seller’s failure to provide the information and reports described in Sections 9.1, 9.2, 9.3, 9.5 and/or 9.6 shall be deemed a material breach of this Agreement.

9.8 NDC/UPN Bar Coding Implementation . Seller acknowledges that national drug code (“NDC”) and universal product numbering (“UPN”) systems enhance standardization, product tracking and supply chain efficiencies through common use of standard product numbers or symbols. Seller supports Purchasing Partners’ efforts to implement bar coding on all patient package units that include NDC/UPN, lot number and expiration date. Seller shall implement any NDC and/or UPN systems reasonably adopted by Purchasing Partners,

10. FEES .

10.1 Purchasing Partners Administrative Fee . Seller will pay Purchasing Partners an administrative fee (the “Purchasing Partners Administrative Fee”) equal to the percentage set forth in Item 6 of the Cover Sheet of the total dollar volume of Products and Services purchased by Participating Members (including without limitation the total value of equipment trade-ins, training fees [if any], installation, service and maintenance charges and extended warranty charges) through Seller or through any Authorized Distributors during the term of this Agreement. For purposes of this Agreement, a Product will be deemed to have been “purchased” on the date it is delivered to a Participating Member.

Notwithstanding the foregoing, Seller shall continue to pay the Purchasing Partners Administrative Fee under this Article 10 with respect to sales of any Products which occur after the expiration or termination of this Agreement pursuant to a direct contract between Seller and a Participating Member (a “Member Agreement”) which was entered into during the term of this Agreement. Seller’s obligation to pay such administrative fees shall continue until the expiration or termination of the then-current term of the Member Agreement. Further, all other provisions relating to the Purchasing Partners Administrative Fee, including without limitation, the obligation to provide sales documentation and administrative fee reporting pursuant to Sections 9.2 and 9.3 above, shall survive the expiration or termination of this Agreement and remain in effect with respect to Product purchases under Member Agreements until the expiration or termination of the then-current term of the applicable Member Agreement.

10.2 Manner of Payment . Seller will pay to Purchasing Partners the Purchasing Partners Administrative Fee monthly, without demand or notice, within thirty (30 ) days after the end of each calendar month during the term hereof. Seller’s failure to timely pay the Purchasing Partners Administrative Fee shall be deemed a material breach of this Agreement.

All payments shall be by wire or electronic transfer to the account of “Premier Purchasing Partners, L.P.” or by a check payable to “Premier Purchasing Partners, L.P.” in accordance with the written instructions set forth in Exhibit E. Seller shall pay to Purchasing Partners interest on

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Seller: Masimo Corporation		Contract Number: PP-NS-347

any past due amount owing Purchasing Partners hereunder at the lesser of (a) one and one-half percent (1-1/2%) per month or (b) the maximum interest rate legally permitted.

11. COMPLIANCE WITH LAWS AND REGULATIONS .

11.1 General . Seller represents and warrants that throughout the term of this Agreement and any extension hereof, Seller and all Products shall be and shall remain in compliance with all applicable federal, state and local laws and regulations, including without limitation all applicable “safe harbor” regulations relating to group purchasing organizations and fees, discounts and incentives paid and/or granted to group purchasing organizations and any participants therein. Seller shall disclose to Participating Members, per applicable regulations, the specified dollar value of discounts or reductions in price. The Parties acknowledge and agree that for purposes of 42 C.F.R. Section 1001.952(h), any reduction in the amount Seller charges a Participating Member (excluding group purchasing organization fees, such as the Purchasing Partners Administrative Fee) is a “discount or other reduction in price” to the Participating Member. Participating Members shall disclose the specified dollar value of discounts or reductions in price under any state or federal program which provides cost or charge-based reimbursement to such Participating Members for the Products and services covered by this Agreement in accordance with applicable regulations.

If Seller provides an item without charge or at a reduced cost (the “Free or Discounted Item”) along with the purchase of other items or services (the “Other Items”), Seller will calculate the total price the Participating Member paid for all the items furnished, and then provide a reasonable allocation of that total price to each of the items on an invoice to the Participating Member. Seller represents that such allocation among the Free or Discounted Item and the Other Items shall be reasonable and appropriate, and Seller recognizes that such allocation shall be relied upon by Participating Member in identifying its costs on the Medicare cost report. Seller further represents and warrants that the Free or Discounted Item and the Other Items are reimbursed by the same Federal health care program using the same methodology. Seller agrees that, until the expiration of four (4) years after the furnishing of any goods and services pursuant to this Agreement, it will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives, copies of this Agreement and any books, documents, records and other data of Seller that are necessary to certify the nature and extent of the costs incurred by Participating Members in purchasing such goods and services. If Seller carries out any of its duties under this Agreement through a subcontract with a related organization involving a value or cost of ten thousand dollars ($10,000) or more over a twelve-month period, Seller will cause such subcontract to contain a clause to the effect that, until the expiration of four (4) years after the furnishing of any good or service pursuant to said contract, the related organization will make available upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives, copies of this Agreement and any books, documents, records and other data of said related organization that

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Seller: Masimo Corporation		Contract Number: PP-NS-347

are necessary to certify the nature and extent of costs incurred by Seller for such goods or services. Seller shall give Purchasing Partners notice immediately upon receipt of any request from the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives for disclosure of such information.

Seller represents and warrants that as of the date of this Agreement, Seller has not: (a) been listed by any federal or state agency as excluded, debarred, suspended or otherwise ineligible to participate in federal and/or state programs; or (b) been convicted of any crime relating to any federal and/or state program. Seller further agrees to immediately notify Purchasing Partners in writing in the event Seller is listed by a federal or state agency as excluded, debarred, suspended or otherwise ineligible to participate in any federal and/or state programs or if Seller is convicted of any crime relating to any such program.

11.2 HIPAA Compliance . The U.S. Department of Health and Human Services issued regulations on “Standards for Privacy of Individually Identifiable Health Information,” which comprise 45 C.F.R. Parts 160 and 164 (the “Privacy Rule”), and “Security Standards,” which comprise 45 C.F.R. Parts 160, 162, and 164 (the “Security Rule”), promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996). Seller shall comply with the Privacy Rule and Security Rule, pursuant to the manner set forth in the HIPAA Addendum attached hereto, if applicable.

11.3 JCAHO Compliance . Seller shall promptly cooperate with any Participating Member’s reasonable request for assistance and information in connection with such Participating Member’s efforts to comply with the requirements and standards of the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”).

12. INDEMNIFICATION; WARRANTIES; SPECIFICATIONS AND NOTICES .

12.1 Indemnification . Seller hereby agrees to indemnify, defend and hold harmless Purchasing Partners and each Participating Member and their respective affiliates, directors, officers, employees, agents and insurers (collectively, the “Indemnitee(s)”) from and against any and all third-party claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable experts’ and attorneys’ fees) and judgments arising out of or substantially related to: (a) alleged bodily injury, property damage or any other damage or injury to the extent allegedly caused by, contributed by, or associated with any of the Products covered by this Agreement, (b) any alleged acts or omissions of Seller and its employees and agents acting under its control or supervision, and (c) the alleged direct or contributory infringement of any intellectual property right, including any patent, trademark, copyright or trade secret right, by (i) any of the Products; (ii) the packaging, instructions and other materials supplied therewith; or (iii) their contemplated uses; and (d) the alleged inducement of infringement of any such intellectual property right by Purchasing Partners’ inclusion of any of the Products in its approved list of products and its other normal business conduct related thereto. Purchasing Partners hereby agrees to indemnify, defend and hold

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

harmless Seller and its affiliates, directors, officers, employees, agents, customers and insurers from and against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable attorneys’ fees) and judgments arising out of the acts or omissions of Purchasing Partners and its employees and agents acting under its control or immediately supervision Nothing herein shall be construed as making the indemnifying party liable for any injuries, deaths or damages caused by the negligence or willful misconduct of indemnities if Products have not been used or maintained in accordance with Seller’s written directions, instructions, user manuals, training materials, service manuals, and/or any other publication furnished by Seller or its representatives pertaining to such Products (“Seller’s Guidance”). The Seller shall have no liability or responsibility of any kind under this Section unless the Indemnitee (i) promptly notifies the Seller of such claim (ii) gives the Seller an adequate opportunity to defend, including complete control of such defense, and (iii) cooperates with the Seller in a reasonable way, at seller’s expense and request, to facilitate the settlement or defense of such claim. The Seller shall have no liability for settlements made without Seller’s express written consent. Should an Indemnitee desire to have its own counsel participate in any such action, the cost of such counsel shall be exclusively the Indemnitee’s, Seller shall have no obligations or liability pursuant to this section or otherwise in connection with any actual or alleged patent infringement or for any liability, loss, damage, costs or expenses as a result of any injury, illness or death to the extent based on (i) use of any Product in combination with any other product, part, or accessory not in accordance with Seller’s Guidance (ii) use of any Product in a manner not recommended by Seller’s Guidance, (iii) an alteration or modification of any Product that is not authorized by Seller’s Guidance.

As used in this Section, “Affiliate” means any entity Controlled by an Indemnitee, where “Control” means ownership of a majority of the voting stock or other voting interest.

12.2 Warranties and Published Specifications . Seller hereby warrants that each of the Products shall be free from defects in material and workmanship and shall conform to Specifications for the applicable warranty term. Attached hereto as Exhibit I is a detailed description of additional warranties applicable to the Products. Seller further represents and warrants that none of: (a) the Products; (b) the packaging, instructions, and other materials supplied therewith; nor (c) their contemplated uses will directly or contributorily infringe any intellectual property right, including any patent, copyright, trademark, or trade secret right. THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, ARISAING BY OPERATION OF LAW OR OTHERWISE, AND NO OTHER WARRANTIES EXIST, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, MASIMO WILL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, OR […***…] ARISING OUT OF THE USE OF THE EQUIPMENT AND SOFTWARE, EVEN IF MASIMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. This limitation on liability shall not apply to Seller’s indemnification obligations under Section 12.1.

* Confidential Treatment Requested

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

12.3 Product Notices . Seller agrees to send all Product notices (including without limitation recall notices and product availability notices), as well as notices of any other changes affecting the Products and notices of new Products, to each Participating Member with copies to Purchasing Partners. Seller shall provide Purchasing Partners written notice of any Class I FDA recall affecting any of the Products within twenty-four (24) hours of Seller’s receipt of any such recall. Seller shall provide Purchasing Partners written notice of any Class II or Class III FDA recall affecting any of the Products within seventy-two (72) hours of Seller’s receipt of any such recall. Further, Seller agrees to immediately notify Purchasing Partners and each Participating Member of any problems in the manufacture or production of any Products and of any back-order situation that might affect Seller’s ability to meet Seller’s obligations under this Agreement. Upon Purchasing Partners’ request, Seller shall provide Purchasing Partners copies of any FDA Form 483, regulatory letter, and/or warning letter relating to the Products and Seller’s response thereto.

12.4 Insurance . Seller shall maintain adequate Products liability, general public liability, and property damage insurance against any claim or claims which might or could arise regarding Products purchased by Participating Members from it under the Agreement. Seller shall make Purchasing Partners a named additional insured in Seller’s insurance policy containing the required coverage. When requested by Purchasing Partners, an insurance certificate indicating the foregoing coverage, issued by an insurance company licensed to do business in the relevant state or states and signed by an authorized agent, shall be furnished to Premier. Seller shall provide Purchasing Partners with at least thirty (30) days prior written notice of any cancellation or material modification of such insurance. (10 days in case of cancellation for non-payment of premiums).

13. TERMINATION .

13.1 Termination for Breach . In the event of breach of any provision of this Agreement, the non-breaching party shall notify the breaching party in writing of the specific nature of the breach and shall request that it be cured. If the breaching party does not cure the breach within thirty (30) days of such notice, the non-breaching party may immediately terminate this Agreement on written notice to the breaching party, and such termination shall not preclude the non-breaching party from pursuing any and all remedies available to it at law or in equity.

13.2 Orders Placed Prior to Termination . Seller shall fulfill, in accordance with the terms of this Agreement, all orders for Products and Services submitted by Participating Members and received by Seller prior to termination or expiration of this Agreement.

13.3 Termination Without Cause . Either party may terminate this Agreement at any time without cause or penalty upon providing the other party with ninety (90) days’ advance written notice.

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

13.4 Survival . The following paragraphs of this Agreement shall survive expiration or termination of this Agreement: (a) the payment of Administrative Fees pursuant to Article 10.0 including, but not limited to, fees relating to Products ordered prior to the effective date of expiration or termination and delivered after expiration or termination, and fees related to sales of Products under Member Agreements (as described in Section 10.1 above) which occur after the expiration or termination of this Agreement; (b) the audit undertakings set forth in Section 15.12; (c) the representations, warranties and covenants set forth in Section 12.2; (d) the indemnification undertaking contained in Section 12.1; (e) the designation of Participating Members as third party beneficiaries pursuant to Section 15.7; (t) the undertaking to fill orders submitted to and received by Seller prior to the date of expiration or termination set forth in Section 13.2; (g) the confidentiality undertakings contained in Article 14; (h) the rights and limitations on assignment contained in Sections 15.4 and 15.10; (i) the governing law provisions contained in Section 15.1; (j) reasonable attorney’s fees provided for in Section 15.9; (k) compliance with laws and regulations provided for in Article 11.0; (1) the rights of Participating Members under Section 6.8 relating to the rejection of Products which were ordered prior to the effective date of expiration or termination; and (m) Seller’s obligations under Article 2.0 to provide Improvements free of charge for a period of up to 12 months after the expiration or termination of this Agreement.

14. CONFIDENTIALITY .

14.1 Confidential Information . For the purposes of this Agreement, confidential information (“Confidential Information”) shall mean all proprietary, secret or confidential information or data relating to Purchasing Partners, Participating Members, or Seller and their respective operations, employees, services, patients or customers.

14.2 Protection of Confidential Information . Seller and Purchasing Partners acknowledge that Seller, Purchasing Partners, or Participating Members may disclose Confidential Information to each other in connection with this Agreement. If Seller or Purchasing Partners receives Confidential Information, it shall: (a) maintain the Confidential Information in strict confidence; (b) use at least the same degree of care in maintaining the secrecy of the Confidential Information as it uses in maintaining the secrecy of its own proprietary, secret, or confidential information, but in no event less than a reasonable degree of care; (c) use Confidential Information only to fulfill its obligations under this Agreement; and (d) return or destroy all documents, copies, notes, or other materials containing any portion of the Confidential Information upon request by Purchasing Partners or Seller. Notwithstanding the foregoing, Purchasing Partners shall have the right to disclose Confidential Information to outside consultants as necessary for Purchasing Partners to provide support services for Participating Members in connection with this Agreement, provided any such consultants agree to the same level of confidentiality as described herein.

14.3 Agreement Confidentiality . Neither Purchasing Partners nor Seller shall disclose the terms of this Agreement to any other person or entity outside its organization and

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

affiliates other than to a Participating Member or as required by law. For purposes of this provision, an affiliate is an entity in which Purchasing Partners or Seller, as appropriate, maintains an ownership position in or a contractual relationship with, and the disclosure is required so that the disclosing party may fulfill its obligations hereunder. Neither party shall make any public announcement concerning the existence of this Agreement or its terms unless such party receives prior written approval by the other party.

14.4 Limitation on Obligation . Seller and Purchasing Partners shall have no obligation concerning any portion of the Confidential Information which: (a) was known to it before receipt, directly or indirectly, from the disclosing party; (b) is lawfully obtained, directly or indirectly, by it from a non-party which was under no obligation of confidentiality; (c) is or becomes publicly available other than as a result of an act or failure to act by the receiving party; required to be disclosed by the receiving party by applicable law or legal process; or (e) is developed by the receiving party independent of the Confidential Information disclosed by the disclosing party. The receiving party shall not disclose any portion of the Confidential Information to any person except those of its employees and affiliates having a need to know such portion to accomplish the purposes contemplated by this Agreement.

14.5 License Granted to Seller . Purchasing Partners has developed Confidential Information (as defined in Section 14.1 above) and trade secrets relating to the sale of goods to a large number of customers in the healthcare industry using proprietary business processes. Seller acknowledges that Purchasing Partners and its affiliates have invested substantial money in the development and maintenance of such processes and in the sourcing and sales of products and services. Seller will have a position of special trust and confidence for the use of such Confidential Information (including without limitation the roster of Participating Members set forth in Exhibit B hereto) to support the purposes of this Agreement. Accordingly, only for the term of this Agreement, Purchasing Partners hereby grants to Seller a non-exclusive license to use Confidential Information and such trade secrets for the limited purpose of providing the Products and Services to Purchasing Partners and Participating Members under this Agreement.

14.6 Data . Seller hereby acknowledges and agrees that all information and data generated or otherwise made available to Seller as a result of the participation of Participating Members under this Agreement (“Participating Member Data”) is proprietary to and owned exclusively by the applicable Participating Member and/or Purchasing Partners. Seller shall not sell, market, or commercialize Participating Member Data, create derivative products or applications based on Participating Member Data or otherwise use Participating Member Data in any manner unrelated to the performance of Seller’s obligations under this Agreement. Participating Member Data shall be deemed Confidential Information of Participating Members and/or Purchasing Partners and therefore subject to the provisions required to be of Article 14 hereof. Seller hereby consents to the release to Purchasing Partners of transactional data relating to purchasing activity by Participating Members under this Agreement. Such consent shall

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

extend to the release to Purchasing Partners of such data by any third party that operates an electronic marketplace or exchange.

14.7 License Granted by Seller; Restrictions . The Products contain Seller proprietary software (the “Software”), trade secrets and other proprietary information (collectively, “Intellectual Property”). Any sale of Products pursuant to this Agreement does not constitute a sale of the Software or any Intellectual Property, and does not convey to any Participating Member any right to reverse engineer, copy, or modify the Software or Intellectual Property; or to loan, rent, lease, assign, transfer, or sub-license the Software or Intellectual Property other than pursuant to the loan, rent, lease, assign, transfer, or sale of the Product in which such Software or Intellectual Property is embodied; any attempt to do so (except as expressly authorized in this Agreement) will render the license null and void and use of the Software and Intellectual Property invalid. This Agreement does not convey any express or implied license to use the Products with unauthorized sensors or cables that would, alone, or in combination with the Products, fall within the scope of one or more of the patents relating to the Products. Except for use of the serial port to transmit data from the Seller SET pulse oximeters to other equipment, This Agreement does not convey to any Participating Member any right to modify or connect other Equipment to the Seller’s Products, including software, hardware and related instruments. The Products may not be used for any processes, procedures, experiments or any other use for which the Equipment is not intended for use or cleared for use by the Food and Drug Administration (FDA). In the ordinary course of business under this Agreement, Purchasing Partners are not expected to take possession of Seller’s products; however, to the extent applicable, the foregoing restrictions also apply to Purchasing Partners.

15. MISCELLANEOUS.

15.1 Governing Law and Venue . This Agreement is being delivered and executed in the State of Illinois. In any action brought by or against Purchasing Partners, the validity, construction and enforcement of this Agreement shall be governed in all respects by the laws of the State of New York, and venue shall be proper only in a court of competent jurisdiction located in the State of Illinois in Cook County or State of California in Orange County. In the event of any dispute arising out of this Agreement, whether at law or in equity, brought by or against a Premier Participating Member, venue shall he proper only in a court of competent jurisdiction located in the county and state in which such member is located. The parties agree to be subject to personal jurisdiction in and consent to service of process issued by a court in which venue is proper as defined in this Section 15.1.

15.2 Modification and Waiver . No modification of this Agreement shall be deemed effective unless in writing and signed by each of the parties hereto. Any waiver of a breach of any provision(s) of this Agreement shall not be deemed effective unless in writing and signed by the party against whom enforcement of the waiver is sought.

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

15.3 Headings . The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provision hereof.

15.4 Assignment . Purchasing Partners shall have the right without Seller’s consent, to assign Purchasing Partners’ rights, title and interest under this Agreement to any entity owned or controlled by Premier, Premier Purchasing Partners, L.P. (“Purchasing Partners”) and/or Purchasing Partners or under common ownership or control with Premier, Purchasing Partners and/or Purchasing Partners. Seller may, following 90 days prior written notice, assign and delegate this Agreement to an affiliate, majority owned or controlled by Seller, or a successor in interest resulting from a merger or acquisition. Except as set forth in the foregoing sentence, neither party may assign, subcontract, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder, nor may it contract with third parties to perform any of its obligations hereunder except as contemplated in this Agreement, without the other party’s prior written consent.

15.5 Severability . If any part of this Agreement shall be determined to be invalid, illegal or unenforceable by any valid Act of Congress or act of any legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court of competent jurisdiction, then such part shall be reformed, if possible, to conform to the law and, in any event, the remaining parts of this Agreement shall be fully effective and operative insofar as reasonably possible.

15.6 Notices . Any notice required to be given pursuant to the terms and provisions hereof shall be in writing, postage and delivery charges pre-paid, and shall be sent by telecopier, hand delivery, overnight mail service, first-class mail or certified mail, return receipt requested, to Purchasing Partners or Seller at the addresses and/or facsimile numbers set forth on the Cover Sheet. Any party may change the address to which notices are to be sent by notice given in accordance with the provisions of this section. Notices hereunder shall be deemed to have been given, and shall be effective upon actual receipt by the other party, or, if mailed, upon the earlier of the fifth (5th) day after mailing or actual receipt by the other party. Seller shall provide a copy of any notice to Purchasing Partners provided under this Section to the Premier Legal Department at the following address:

Premier Legal Department

12225 El Camino Real

San Diego, CA 92130-2099

Tel No.: (858) 509-6361

Fax No.: (858) 481-0538

Attn: General Counsel

15.7 Enforceability . The parties hereto acknowledge and agree that (a) this Agreement is entered into by Purchasing Partners for the express, intended benefit of

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

Participating Members, (b) each of the Participating Members shall be and constitute an intended third-party beneficiary of the representations, warranties, covenants and agreements of the Seller contained herein, and (c) each of the Participating Members shall be entitled to enforce the terms and provisions of this Agreement to the same extent as Purchasing Partners.

15.8 Independent Contractors . The parties’ relationship hereunder is that of independent contractors. This Agreement does not create any employment, agency, franchise, joint venture, partnership or other similar legal relationship between Purchasing Partners and Seller. Neither party has the authority to bind or act on behalf of the other party except as otherwise specifically stated herein.

15.9 Attorneys’ Fees. Should any party engage an attorney for the purpose of enforcing this Agreement or any judgment based hereon in any court, including bankruptcy court, courts of appeal or arbitration proceedings, the prevailing party shall be entitled to receive its reasonable attorneys’ fees and costs in addition to any other relief granted.

15.10 Binding Effect . This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

15.11 Force Majeure . The obligations of either party to perform under this Agreement will be excused during each period of delay caused by acts of God or by shortages of power or materials or government orders which are beyond the reasonable control of the party obligated to perform (“Force Majeure Event”). In the event that either party ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, such party shall: (a) immediately notify the other party in writing of such Force Majeure Event and its expected duration; (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible. In the event that any Force Majeure Event delays a party’s performance for more than thirty (30) days following notice by such party pursuant to this Agreement, the other party may terminate this agreement immediately upon written notice to such party.

15.12 Audit . Seller shall permit Purchasing Partners or its agent to conduct periodic audits of records relating to Seller’s performance under this Agreement including without limitation relevant orders, invoices, volume reports and administrative fees. At a minimum, Seller shall maintain and have available for review the following documents in connection with an audit: electronic copies of volume and administrative fee files previously sent to Purchasing Partners, copies of the Membership Rosters utilized by Seller in performing under this Agreement, records of all sales made to Participating Members under this Agreement (in a format that allows for re-querying of the data), an electronic listing of all Products purchased during the term of this Agreement (in a format that allows for re-querying of the data) which can be used as the basis for confirming total Participating Member purchase volume and total Purchasing Partners Administrative Fees due under this Agreement, and a cross reference between Seller’s internal customer numbers and Purchasing Partners approved entity code

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

numbers (in the event that Purchasing Partners’ entity code numbers are not loaded into Seller’s information system). The audits shall be conducted upon reasonable advance notice during regular business hours at Seller’s principal office and in such a manner as not to unduly interfere with Seller’s operations. In the event any audit reveals an underreporting of Purchasing Partners Administrative Fees in excess of the lesser of $25,000 or 5% of the total Purchasing Partners Administrative Fees paid in any reporting period, or in aggregate for the entire audit period, then the costs of the audit, including labor, outside consultant fees, out-of-pocket expenses and administrative charges to perform the review shall be reimbursed to Purchasing Partners by Seller within thirty (30) days of Seller’s receipt of an invoice therefore from Purchasing Partners.

15.13 Minority, Woman-Owned and Small Businesses . On or before the Effective Date, Seller shall provide to Purchasing Partners a copy of Seller’s current supplier diversity policy. Such policy shall set forth the manner in which Seller intends to comply with Purchasing Partners Minority, Woman-Owned, and Small Business Policy set forth in Exhibit F hereto. In this regard, Seller acknowledges that it will use commercially reasonable efforts to spend a minimum of three percent (3%) of its annual production and raw material costs with minority owned businesses and a minimum of two percent (2%) of such costs with women-owned businesses.

15.14 Entire Agreement . This Agreement, including the Cover Sheet, the Additional Terms and Conditions (if any) and all Exhibits hereto, constitutes the entire understanding and agreement between Seller and Purchasing Partners concerning the subject matter hereof, and supersedes all prior negotiations, agreements and understandings between Seller and Purchasing Partners, whether oral or in writing, concerning the subject matter hereof, including, but not limited to, all prior agreements between Seller and either Purchasing Partners, AmHS Purchasing Partners, L.P., American Healthcare Systems, Inc., Premier Health Alliance, Inc., or SunHealth Alliance, Inc., whether or not assigned to Purchasing Partners, Purchasing Partners or Premier.

15.15 Labor and Employment Laws . Seller represents and warrants that it complies with applicable labor and employment laws and prohibits any form of child labor or other exploitation of children in the manufacturing and delivery of Products, consistent with provisions of the International Labor Organization’s Minimum Age Convention of 1973. A child is any person who is less than fourteen (14) years of age or who is younger than the compulsory age to be in school in the country in which Seller’s business is being conducted, if that age is higher than fourteen (14).

15.16 No Additional Obligations Imposed by Seller . Except as expressly set forth herein, Seller shall not impose any obligations on Purchasing Partners and/or Participating Members as a condition to receiving any of the benefits set forth in this Agreement.

15.17 Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.

PREMIER PURCHASING PARTNERS, L.P.

STANDARD TERMS AND CONDITIONS

GROUP PURCHASING AGREEMENT-CAPITAL EQUIPMENT


Seller: Masimo Corporation		Contract Number: PP-NS-347

15.18 Data/Payment Exchange; Electronic Commerce . Seller hereby acknowledges that Purchasing Partners and/or its affiliates are currently developing technology and electronic commerce (“e-commerce”) processes which may enable Participating Members and Seller to more efficiently purchase and sell products, supplies and equipment, exchange information and make payments (e.g., through use of the Internet), Seller shall implement any e-commerce system reasonably adopted by Purchasing Partners and/or its affiliates for group purchasing activities (including without limitation e-Sourcing and GHX applications) and shall cooperate in all reasonable respects with Purchasing Partners and/or its affiliates in integrating any such e-commerce systems into Seller’s systems. Any such e-commerce system shall be owned by and proprietary to Purchasing Partners and/or its affiliates. Further, Seller agrees during the term of this Agreement not to direct or otherwise encourage Participating Members to use e-commerce systems other than the system promoted, developed and/or operated by Purchasing Partners and/or its affiliates.

15.19 Technology Breakthroughs . Purchasing Partners believes an essential element of advancing the core objectives and mission of Premier is to encourage the development of health care technology which significantly improves the quality, process and/or outcome of care. In support of this belief, the Parties acknowledge that certain Products which incorporate breakthrough technologies (“Breakthrough Products”) have the potential to significantly improve safety to patients or hospital stall; significantly improve non-clinical operational efficiency, or deliver dramatic process of care cost savings or improved clinical outcomes when compared to the level of safety, operational efficiency, process of care and/or outcomes delivered through use of the Products. Purchasing Partners therefore reserves the right to enter into agreements with the supplier(s) of such Breakthrough Products in order to make such Products available to Participating Members. Seller hereby agrees that the purchase of such Breakthrough Products by Participating Members shall not negatively impact such members’ access to any favorable terms and conditions offered under this Agreement.

15.20 Controlling Document . In the event of any conflict between this Agreement and any document, instrument or agreement prepared by Seller (including without limitation Seller’s purchase orders, invoices and warranties), the terms of this Agreement shall control.

15.21 Seller Information Sheet . Concurrent with the execution of this Agreement, Seller shall complete and return to Purchasing Partners the Seller Information Sheet set forth as Exhibit G.

¨ End of Standard Terms and Conditions ¨

PREMIER PURCHASING PARTNERS, L.P.

HIPAA ADDENDUM

GROUP PURCHASING AGREEMENT

I.	GENERAL PROVISIONS

Section 1. Effect . This Addendum supplements, modifies and amends any and all agreements, whether oral or written, between Purchasing Partners and Seller and relates to the disclosure of protected health information (“PHI”) by Participating Members to Seller, or the creation or receipt of PHI by Seller on behalf of Participating Members (the “Agreement(s)”). The terms and provisions of this Addendum shall supercede any other conflicting or inconsistent terms and provisions in any Agreement(s) between Purchasing Partners and Seller, including all exhibits or other attachments thereto and all documents incorporated therein by reference. Without limitation of the foregoing, any limitation or exclusion of damages provisions shall not be applicable to this Addendum.

Section 2. Amendment . Seller and Purchasing Partners agree to amend this Addendum to the extent necessary to allow either Seller or Participating Members to comply with the Privacy Rule, the Standards for Electronic Transactions (45 C.F.R. Parts 160 and 162) and the Security Rule (collectively, the “Standards”) promulgated or to be promulgated by the Secretary or other regulations or statutes. Seller agrees that it will fully comply with all such Standards and that it will agree to amend this Addendum to incorporate any material terms required by the Standards.

Section 3. Definitions . Capitalized terms used herein without definition shall have the respective meanings assigned to such terms in Part IV of this Addendum.

II. OBLIGATIONS OF SELLER

Section 1. Use and Disclosure of Protected Health Information . Seller may use and disclose PHI only as required to satisfy its obligations under the Agreement(s), as permitted herein, or as required by law, but shall not otherwise use or disclose any PHI. Seller shall not, and shall ensure that its directors, officers, employees, contractors and agents do not, use or disclose PHI received from a Participating Member in any manner that would constitute a violation of the Privacy Standards if used by the Participating Member, except that Seller may use PHI (i) for Seller’s proper management and administrative services, (ii) to carry out the legal responsibilities of Seller or (iii) to provide data aggregation services relating to the health care operations of Participating Member if required under the Agreement(s). Seller hereby acknowledges that, as between Seller and Participating Members, all PHI shall be and remain the sole property of Participating Members, including any and all forms thereof developed by Seller in the course of its fulfillment of its obligations pursuant to this Addendum. Seller further represents that, to the extent Seller requests that a Participating Member disclose PHI to Seller, such a request is only for the minimum necessary PHI for the accomplishment of Seller’s purpose.

Section 2. Safeguards Against Misuse of Information . Seller agrees that it will implement appropriate administrative, technical and physical safeguards to protect the confidentiality, integrity and availability of PHI and to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of this Addendum.

PREMIER PURCHASING PARTNERS, L.P.

HIPAA ADDENDUM

GROUP PURCHASING AGREEMENT

Section 3. Reporting of Disclosures of Protected Health Information . Seller shall, within thirty (30) days of becoming aware of any Security Incident (as defined in the Security Rule) or any use or disclosure of PHI in violation of this Addendum by Seller, its officers, directors, employees, contractors or agents or by a third party to which Seller disclosed PHI pursuant to Section 11.4 of this Addendum, report any such disclosure to Purchasing Partners and applicable Participating Members.

Section 4. Agreements by Third Parties . Seller shall obtain and maintain an agreement with each agent or subcontractor that has or will have access to PHI, which is received from, or created or received by Seller on behalf of Participating Members, pursuant to which agreement such agent or subcontractor agrees to be bound by the same restrictions, terms and conditions that apply to Seller pursuant to this Addendum with respect to such PHI.

Section 5. Access to Information . Within five (5) days of a request by a Participating Member for access to PHI about an individual contained in a Designated Record Set, Seller shall make available to the Participating Member such PHI for so long as such information is maintained in the Designated Record Set. In the event any individual requests access to PHI directly from Seller, Seller shall within two (2) days forward such request to Participating Member. Any denials of access to the PHI requested shall be the responsibility of Participating Member.

Section 6. Availability of Protected Health Information for Amendment . Within ten (10) days of receipt of a request from a Participating Member for the amendment of an individual’s PHI or a record regarding an individual contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Seller shall provide such information to Participating Member for amendment and incorporate any such amendments in the PHI as required by 45 C.F.R. § 164.526.

Section 7. Accounting of Disclosures . Within ten (10) days of notice by a Participating Member to Seller that it has received a request for an accounting of disclosures of PHI, other than related to the treatment of the patient, the processing of payments related to such treatment, or the operation of a covered entity or its business associate and not relating to disclosures made earlier than six (6) years prior to the date on which the accounting was requested, Seller shall make available to Participating Member such information as is in Seller’s possession and is required for Participating Member to make the accounting required by 45 C.F.R. § 164.528. At a minimum, Seller shall provide Participating Member with the following information: (i) the date of the disclosure, (ii) the name of the entity or person who received the PHI and, if known, the address of such entity or person, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the purpose of such disclosure which includes an explanation of the basis for such disclosure. In the event the request for an accounting is delivered directly to Seller, Seller shall within two (2) days forward such request to Participating Member. Seller hereby agrees to implement an appropriate recordkeeping process to enable it to comply with the requirements of this Section.

Section 8. Availability of Books and Records . Seller hereby agrees to make its internal practices, books and records relating to the use and disclosure of PHI received from, or created

PREMIER PURCHASING PARTNERS, L.P.

HIPAA ADDENDUM

GROUP PURCHASING AGREEMENT

or received by Seller on behalf of, a Participating Member available to the Secretary for purposes of determining Participating Member’s compliance with the Privacy Standards.

Section 9. Indemnification . Seller hereby agrees to indemnify and hold Purchasing Partners and Participating Members harmless from and against any and all liability and costs, including attorneys’ fees, created by a breach of this Addendum by Seller, its agents or subcontractors, without regard to any limitation or exclusion of damages provision otherwise set forth in the Agreement(s).

Section 10. Insurance . Seller shall obtain and maintain during the term of this Agreement liability insurance covering claims based on a violation of the Standards or any applicable state law or regulation concerning the privacy of patient information. A copy of such policy or a certificate evidencing the policy shall be provided to Purchasing Partners upon written request.

III.

TERMINATION OF AGREEMENT WITH SELLER

Section 1. Term . This Addendum shall become effective on the later of April 14, 2003 or the effective date of the Agreement and, unless otherwise terminated as provided herein, shall continue to be effective until superseded by another agreement or until the relationship between Participating Members and Seller ceases.

Section 2. Termination Upon Breach of Provisions Applicable to Protected Health Information . Any other provision of the Agreement(s) notwithstanding, this Addendum and the Agreement(s) may be terminated by Purchasing Partners upon thirty (30) days written notice to Seller in the event that Seller breaches any provision contained in this Addendum and such breach is not cured within such thirty (30) day period. Participating Member may terminate its relationship with Seller in the event that Seller breaches any provision contained in this Addendum with respect to such Participating Member; provided, however, that in the event that termination of this Addendum with respect to such Participating Member is not feasible, in Participating Member’s sole discretion, Seller hereby acknowledges that Participating Member shall have the right to report the breach to the Secretary, notwithstanding any other provision of this Addendum or any Agreement(s) to the contrary.

Section 3. Return or Destruction of Protected Health Information upon Termination . Upon termination of this Addendum with respect to a certain Participating Member, Seller shall either return or destroy all PHI received from such Participating Member or created or received by Seller on behalf of such Participating Member and which Seller still maintains in any form. Seller shall not retain any copies of such PHI. Notwithstanding the foregoing, to the extent that Participating Member agrees that it is not feasible to return or destroy such PHI, the terms and provisions of this Addendum shall survive termination and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.

PREMIER PURCHASING PARTNERS, L.P.

HIPAA ADDENDUM

GROUP PURCHASING AGREEMENT

16. DEFINITIONS FOR USE IN THIS ADDENDUM

“ Data Aggregation ” shall mean, with respect to PHI created or received by Seller in its capacity as the business associate of a Participating Member, the combining of such PHI by Seller with the PHI received by Seller in its capacity as a business associate of another covered entity, to permit data analyses that relate to the health care operations of the respective covered entities.

“ Designated Record Set ” shall mean a group of records maintained by or for a Participating Member that is (i) the medical records and billing records about individuals maintained by or for such Participating Member, (ii) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (iii) used, in whole or in part, by or for such Participating Member to make decisions about individuals. As used herein the term “Record” means any item, collection, or grouping of information that includes PHI and is maintained, collected, used, or disseminated by or for Participating Member.

“ Electronic Media ” shall mean the mode of electronic transmissions. It includes the Internet, extranet (using Internet technology to link a business with information only accessible to collaborating parties), leased lines, dial-up lines, private networks, and those transmissions that are physically moved from one location to another using magnetic tape, disk, or compact disk media.

“ Individually Identifiable Health Information ” shall mean information that is a subset of health information, including demographic information collected from an individual, and (i) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (ii) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (a) identifies the individual, or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

“ Privacy Rule ” shall mean the Standard for Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160 and 164.

“ Protected Health Information ” shall mean Individually Identifiable Health Information that is (i) transmitted by electronic media, (ii) maintained in any medium constituting Electronic Media; or (iii) transmitted or maintained in any other form or medium. “Protected Health Information” shall not include (i) education records covered by the Family Educational Right and Privacy Act, as amended, 20 U.S.C. § 1232g and (ii) records described in 20 U.S.C. § 1232g(a)(4)(B)(iv).

“ Secretary ” shall mean the Secretary of the U.S. Department of Health and Human Services.

“ Security Rule ” shall mean the Security Standards, 45 C.F.R. Parts 160, 162 and 164.

EXHIBIT A-1

PRODUCT AND PRICING TERMS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

1.	Pricing Tiers : Pricing tiers for Products shall vary according to total dollar volume of Products purchased per calendar year by Participating Members according to the following:


VOLUME TIERS		TOTAL PRODUCT PURCHASES ($ PER CALENDAR YEAR)
TIER 1		Access Price

TIER 2		[. . . *** . . .]

TIER 3		[. . . *** . . .]

2.	Pricing : The attached price list sets forth the net prices to be offered to Participating Members. Such prices do not reflect applicable Authorized Distributor fees.

3.	Price Protection : Seller agrees not to increase the Product prices set forth in the attached price list throughout the term of this Agreement.

Aggregation Pricing Option : Participating Members which operate multi-facility systems and/or have established networks of facilities for purposes of group purchasing and have the ability to coordinate the purchasing decisions of such facilities shall be entitled to aggregate the purchasing volume within their respective systems and networks in order to meet the desired volume tier. For example, the parent organization of a multi-hospital health system or a group purchasing network that has the ability to coordinate the purchasing decisions of its member facilities shall have the right to aggregate the purchasing volume of such facilities in order to meet the desired volume tier. These parent organizations are designated as “top parents” on the Membership Roster.

Market Checks : Upon Purchasing Partners’ reasonable request, Seller shall meet and confer i n good faith with Purchasing Partners to determine the on-going competitiveness of Product pricing under this Agreement. To the extent necessary to address competitive conditions, and upon the parties’ mutual written consent, Product prices shall be reduced. Examples of competitive conditions requiring a price decrease include without limitation industry-wide price decreases or situations where a group purchasing organization which competes with Purchasing Partners enters into a contract with a competitor of Seller for products which are competitive with the Products at prices significantly below the prices charged for Products under this Agreement.

* Confidential Treatment Requested

A1-1

EXHIBIT A-1

PRODUCT AND PRICING TERMS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Designation Form : Attached hereto is a Designation Form which, if reasonably deemed necessary by Seller, shall be used by Participating Members to indicate their desired level of participation under the Volume Tiers as well as designate whether they wish to invoke the Aggregation Pricing Option described in Section 4 above and direct their Authorized Distributors to automatically substitute generically equivalent Products covered under this Agreement in lieu of any products described in the Participating Member’s purchase orders which are not covered under this Agreement. The Designation Form shall not be required for Tier 1 or access pricing, or if Seller already possesses sufficient information indicating Participating Members’ preferences with respect to these issues (“Member Preference Information”) or Seller and Purchasing Partners mutually agree that the Designation Form will not be utilized. Purchasing Partners shall have the right to confirm the accuracy of any such Member Preference Information prior to Seller’s reliance thereon. In instances where Seller reasonably determines that completion of the Designation Form by Participating Members is necessary for the administration of this Agreement, Seller hereby acknowledges that Participating Members which purchase Products without completing and returning the Designation Form shall nonetheless be deemed to have purchased Products under this Agreement at Volume Tier 1 and without application of the Aggregation Pricing Option or Automatic Substitution until such time as a Designation Form is completed and returned which indicates a different preference. The Purchasing Partners Administrative Fees described in Section 10.1 of the Agreement shall be due and payable by Seller with respect to all purchases of Products by Participating Members whether or not the applicable Participating Member has completed and returned the Designation Form. Seller and Purchasing Partners shall use their commercially reasonable efforts to implement a system whereby Designation Forms (or Participating Members’ Volume Tier, and Aggregation Pricing Option and Automatic Substitution elections in lieu of the Designation Form) may be transmitted electronically rather than in paper form.

7.	Reporting : Upon request, Seller shall provide Purchasing Partners copies of Participating Members’ Designation Forms and any other information in Seller’s possession indicating Participating Members’ Volume Tier.

A1-1

EXHIBIT A-2

PRODUCT AND PRICING TERMS



SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

1. Tier . The undersigned Participating Member hereby designates the following desired tier under the above-referenced Premier Purchasing Partners, L.P. Group Purchasing Agreement:

a. Select one Tier by initialing below



Member Initials	TIERS	TOTAL PRODUCT PURCHASES ($ PER CALENDAR YEAR)

	TIER 1	Access Price

	TIER 2	[...***...]

	TIER 3	[...***...]

2. Aggregation Pricing Option . By initialing where indicated below, the undersigned Participating Member hereby elects to invoke Member shall be entitled to aggregate the purchases within its respective multi-facility system in Item I above. In order to invoke this election, the undersigned Participating Member the facilities it wishes to aggregate. Attached hereto as Schedule 1 is a list of all such facilities for updating such list on an annual basis. The undersigned Participating Member hereby elects to invoke the Aggregation Pricing Option: Participating Member’s Initials : _______

3. Automatic Substitution . By initialing where indicated below, the undersigned Participating Member hereby authorizes and directs its Authorized Distributors to automatically substitute any generically equivalent product covered under the above-reference Group Purchasing Agreement in lieu of any product described in such Participating Member’s purchase orders which is not covered under such agreement. The undersigned hereby elects to invoke Automatic Substitution: Participating Member’s Initials : _______

The undersigned Participating Member hereby acknowledges and confirms the above designations.


The undersigned Participating Member hereby acknowledges and confirms the above designations. Hospital				Seller


Print Name of Person Signing				Print Name of Person Signing

Signature				Signature

Title of Person Signing				Title of Person Signing

Date Signed				Date Signed

Entity Code

Print Name of Participating Member

Address

City and State

Upon completion, please submit this form to both Seller and Premier.

Masimo-				Premier, Inc.-

Fax: 949-297-7499				Fax: 704.733.4895

* Confidential Treatment Requested

A2-1

EXHIBIT A-2

PRODUCT AND PRICING TERMS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

SCHEDULE 1

LIST OF PARTICIPATING MEMBER’S FACILITIES

(For Purposes of Implementing the Aggregation Pricing Option)

[TO BE COMPLETED BY THE PARTICIPATING MEMBER AND UPDATED ON AN ANNUAL BASIS]

System name:


Premier Entity Code	Participating Facility Name	City	ST	Phone Number	Contact Name

A2-2

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006

PRODUCT DESCRIPTION

PRODUCT
NUMBER

LIST
PRICE

UOM

Qty Per
UOM

TIER 1
[...***...]

TIER 2
[...***...]

TIER 3
[...***...]

Rad-9 Traditional Tabletop Pulse Oximeter

1603

[...***...]

Rad-8 Traditional Tabletop Pulse Oximeter

9019

Radical, 3-in-1 Oximeter with blue screen & automatic display rotation plus Docking Station

R2DS-1

Radical, 3-in-1 Oximeter with blue screen & automatic display rotation plus Docking Station with extended battery option: (includes same interface options listed above)

R2DS-1B

Radical, 3-in-1 Oximeter with blue screen & automatic display rotation plus Docking Station (includes, RS232 & Nurse Call interface)

R2DS-3

Radical-7, 3-in-1 Oximeter with same features as R2DS-1 above except the handheld includes Rainbow SET hardware platform — which includes Masimo SET Sp02 plus the option to add other hemoglobin parameters such as COHb via s/w option.

R7DS-1

Radical-7, 3-in-1 Oximeter with same features as R2DS 1B above except it includes Rainbow SET hardware platform — which includes Masimo SET Sp02 plus the option to add other hemoglobin parameters such as COHb via s/w option.

R7DS-1B

Radical-7, 3-in-1 Oximeter with same features as R2DS-3 above except it includes Rainbow SET hardware platform — which includes Masimo SET Sp02 plus the option to add other hemoglobin parameters such as COHb via s/w option

R7DS-3

Radical Blue Screen Handheld with Masimo SET (Combined with choice of docking stations listed below)

1708

* Confidential Treatment Requested

A3-1

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 […***…]	TIER 3 […***…]
Radical 7 Blue Screen Handheld with Masimo Rainbow SET - which includes Masimo SET Sp02 + the Rainbow SET Pulse CO-Oximetry platform capable of adding other hemoglobin parameters such as COHb and others to be released in future.	2012	$3,045.00	EA	1	[…***…]	[…***…]	[…***…]
Radical Docking Station RDS-1 (includes Satshare, RS232, & Nurse Call interface)	1310	$1,950.00	EA	1
Radical Docking Station RDS-1B (includes same interface capabilities as RDS-1 above plus adds Extended Battery life)	1311	$2,600.00	EA	1
Radical Docking Station RDS-3 (includes RS232 & Nurse Call interface).	1712	$1,800.00	EA	1
Rad-5 Portable Oximeter. Premium, DCSC †	1883	$1,200.00	EA	1
Rad-5v Portable Oximeter, DCSC †	1884	$950.00	EA	1
Rad-5 Portable Oximeter, Premium, PC-04 & sensor kit	1891	$1;200.00	EA	1
Rad-5v Portable Oximeter, PC-04 & sensor kit	1892	$950.00	EA	1
Rad-5 Portable Oximeter, Premium, DC-IP & PC-04 Patient Cable	1957	$1,250.00	EA	1
Rad-5v Portable Oximeter, DC-lP & PC-04 Cable	1958	$995.00	EA	1
Rad-57 handheld Pulse CO-Oximeter capable of measuring Carbon Monoxide (COHb) plus Sp02 and pulse rate (includes Rainbow DCI-dc3 finger sensor that uses 8 wavelengths)	2050	$4,995.00	EA	1
Rad-5/5v Protective Boot – Gray	1842	$60.00	EA	1
Rad-5/5v Protective Boot – Yellow	1980	$60.00	EA	1
Rad-5/5v Protective Boot – Red	1981	$60.00	EA	1

* Confidential Treatment Requested

A3-2

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006

PRODUCT DESCRIPTION

PRODUCT
NUMBER

LIST
PRICE

UOM

Qty Per
UOM

TIER 1

[…***…]

TIER 2

[…***…]

TIER 3

[…***…]

Rad-5/5v Protective Boot – Orange

1982

$60,00

[…***…]

* Confidential Treatment Requested

A3-3

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 […***…]
Rad-5/5v Soft Carrying Case	13158	$70.00	EA	1	[…***…]	[…***…]	[…***…]
Rad-9 extended parts/labor warranty (per year)	WTYRAD9	$150.00	EA	1
Radical extended parts/labor warranty (per year - includes docking station)	WTYRAD	$195.00	EA	1
Radial 7 extended parts/labor warranty (per year - includes docking station)	WTYRAD7	$195.00	EA	1
Rad-5/Rad-5v extended parts/labor warranty (per year)	WTYRAD5	$95.00	EA	1
Rad-57 extended parts/labor warranty (per year)	WTYRAD57	$150.00	EA
TrendCom Trend Download Software	1908	$10.00	EA	1
Rad-5/5v PRONTO Trend download serial cable	1909	$160.00	EA	1
Rad-57 PRONTO Trend download serial cable	2063	$160.00	EA	1
LNOPv Adult-L (with standard tape)	1912	$288.00	BX	24
LNOP Adt (with max durability tape)	1001	$280.00	BX	20
LNOP Adtx (with clear tear resistant tape)	1829	$280.00	BX	20
LNCS Adult (w/ integral Low Noise Cable)	1859	$320.00	BX	20
SP02.com Adult (generic sensors, compatible w/Nellcor conventional Sp02)	1774	$204.00	BX	24
LNOP Hi Fi Trauma Specialty Sensor	1828	$500.00	BX	20
LNOPv Neo-L (with standard tape)	1831	$336.00	BX	24
LNOP Neo-L (with max durability tape)	1798	$380.00	BX	20
LNOP Neo (with max durability tape)	1002	$360.00	BX	20
LNOP NeoPT (special Soft-Touch attachment)	1003	$380.00	BX	20
LNOP NeoPT-L (special Soft-Touch attachment)	1651	$400.00	BX	$20

* Confidential Treatment Requested

A3-4

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006

PRODUCT DESCRIPTION

PRODUCT
NUMBER

LIST
PRICE

UOM

Qty Per
UOM

TIER 1

[…***…]

TIER 2

[…***…]

TIER 3

[…***…]

LNOP Neo Bridge (with max durability tape)

1611

$390.00

[…***…]

* Confidential Treatment Requested

A3-5

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 [……]*
LNOP NeoPT Bridge (special Soft-Touch attachment)	1612	$410.00	BX	20	[…***…]	[…***…]	[…***…]
LNCS Neo L (w/ integral Low Noise Cable)	1862	$420.00	BX	20
SP02.com Neonate (generic sensors, compatible w/ Nellcor conventional Sp02)	1776	$252.00	BX	24
LNOPv Infant-L (with standard tape)	1832	$33, 0	BX	24
LNOP Inf-L (with max durability tape)	1800	$380.00	BX	20
LNCS Inf-L (w/ integral Low Noise Cable)	1861	$400.00	BX	20
SP02.com Infant (generic sensors, compatible w/Nellcor conventional Sp02)	1777	$260.00	BX	24.E
LNOP Hi Fi Inf/Ped Trauma Specialty Sensor	1871	$500.00	BX	20
LNOPv Pd-L (with standard tape)	1913	$288.00	BX	24
LNOP Pdt (with max durability tape)	1025	$300.00	BX	20
LNOP Pdtx (with clear tear resistant tape)	1830	$300.00	BX	20
LNCS-Pdtx (w/ integral Low Noise Cable)	1860	$320.00	BX	20
SP02.com Ped (generic sensors, compatible w/Nellcor conventional Sp02)	1775	$204.00	BX	24
LNOP DC-195 Finger Sensor	1560	$195.00	EA	1
LNOP DCI Finger Sensor	1269	$260.00	EA	1
LNCS DCI Finger Sensor	1863	$260.00	EA	1
SP02.COM RS-I (generic sensors, compatible w/Nellcor conventional Sp02)	1778	$95.00	EA	1
LNOP Multi-Site Y Sensor	1544	$290.00	EA	1
LNOP TC-I Ear/Tip Clip Sensor	1794	$290.00	EA	1
LNCS TC-I Ear / Tip Clip Sensor	1895	$290.00	EA	1

* Confidential Treatment Requested

A3-6

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 [……]*
LNOP TF-I Forehead Sensor	1793	$310.00	EA	1	[…***…]	[…***…]	[…***…]
LNCS TF-I Forehead Sensor	1896	$310.00	EA	1
DCSC Finger Sensor with Direct Connect to Monitor - No Pt Cable Required	1396	$260.00	EA	1
LNOP DCIP Peditric Finger Sensor	1276	$275.00	EA	1
LNCS DCIP Peditric Finger Sensor	1864	$275.00	EA	1
Rainbow DCI-dc3, Adult Reusable Direct Connect Sensor, 3 ft, 1/box	2051	$495.00	EA	1
Rainbow DCI-dcI2, Adult Reusable Direct Connect Sensor, 12 ft, 1/box	2052	$645.00	EA	1
Red DCI-dc3, Adult Reusable Direct Connect Sensor, 3 ft, 1/box	2053	$260.00	EA	1
Rainbow DCi-dc12, Adult Reusable Direct Connect Sensor, 12 ft, 1/box	2052	$645.00	EA	1
PC04 Cable, 1/box, 4 ft. Patient Cable	1173	$225.00	EA	1
PC04-Ext Cable, 1/box, 4 ft. Extension Cable	1619	$225.00	EA	1
PC08 Mountain Extension Cable, 1/box, 8 ft. Patient Cable	1005	$250.00	EA	1
PC 12 Cable, 1/box, 12 ft. Patient Cable	1006	$275.00	EA	1
AC-1 Adapt Cable	1645	$275.00	EA	1
PXC16 Mountable Extension Cable, 1/box, 16 ft. Extension Cable	1645	$48.00	EA	1
PXC30 Mountable Extension Cable, 1/box, 30 ft. Extension Cable	1555	$465.00	EA	1
PXC50 Mountable Extension Cable, 1/box, 50 ft. Extension Cable	1557	$585.00	EA	1

* Confidential Treatment Requested

A3-7

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 [……]*
LNC -4 Cable, 1/box, 4 ft. Patient Cable	2017	$225.00	EA	1	[…***…]	[…***…]	[…***…]
LNC-10 Cable, 1/box, 10 ft. Patient Cable	1814	$275.00	EA	1
NRC-180 Patient Cable, Nellcor 180 to SP02.COM, 10ft, 1/box	1810	$125.00	EA	1
NRC-395 Patient Cable, Nellcor 395 to SP COM, 10ft, 1/box	1811	$125.00	EA	1
NRC-P8 Patient Cable, Philips 8-pin to SP02.COM 10ft, 1/box	1949	$125.00	EA	1
NRC-P12 Patient Cable, Philips 12-pin to SP02.COM 10ft, 1/box	1853	$125.00	EA	1
NRC-GE Patient Cable, GE to SP02.COM, 10ft, 1/box	1854	$125.00	EA	1
AC-1 Patient Cable, LNOP sensor to Nellcor device, 12 foot	1927	$90.00	EA	1
Replacement Posey Wrap Bag for LNOP NeoPt and NeoPt-Bridge Sensors, 12/pack	1053	$30.00	PK	12
Replacement Tapes Bag for LNOP Neo and Neo-Bridge Sensors, 100/pack	1054	$55.00	PK	100
Replacement wrap for 1651 LNOP NeoPt-L sensor	1926	$10.00	PK	10
Replacement Tapes for 1798 LNOP Neo-L Sensors, 100/pack	1799	$55.00	PK	100
Replacement Tapes for 1800 LNOP Inf-L Sensors, 100/pack	1801	$55.00	PK	100
CleanShieldTM Multisite Wrap, 100/box, Adult/Pediatric/Neonatal adhesive attachment wraps for LNOP Yl Multisite Reusable Sensor	1596	$240.00	BX	100

* Confidential Treatment Requested

A3-8

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 [……]*
Standard Multisite Wrap, 100/box, Adult/Pediatric/Neonatal adhesive attachment wraps for LNOP Yl Multisite Reusable Sensor	1597	$130.40	BX	100	[…***…]	[…***…]	[…***…]
Standard Petite Wrap, 100/box, Adult slender digit/Pediatric/Neonatal adhesive attachment wraps for LNOP YI Multisite Reusable Sensor	1598	$100.00	BX	100
Foam Wraps for LNOP YI Sensors, 12/pack	1602	$30.00	PK,	12
Accessory Clothing Clips, 5/pack	1601	$18.00	PK	5
Accessory Adhesive Squares, (144 squares per pack)	1600	$18.00	PK	144
Headband for LNOP/LNCS TF-1	1608	$28.00	PK	5
Adhesive Pad LNOP/LNCS TF-1	1903	$22.00	PK	20
Replacement Battery, Radical Handheld	1315	$300.00	EA	1
Radical Pole Clamp	1317	$80.00	EA	1
Radical Handheld Lock	1395	$12.50	EA	1
Radical Power Cord Lock, 5/pack	1584	$65.00	PK	5
Rad-9 Power Cord Lock, 5/pack	1904	$65.00	PK	5
SatShare Cable, AT01, Masimo	1595	$300.00	EA	1
SatShare Cable, DO01, Masimo	1324	$300.00	EA	1
SatShare Cable, D002, Masimo	1326	$300.00	EA	1
SatShare Cable, D003, Masimo	1528	$300.00	EA	1
SatShare Cable, D004, Masimo	1533	$300.00	EA	1
SatShare Cable, DS01, Masimo	1325	$300.00	EA	I
SatShare Cable, DS02, Masimo	1539	$300.00	EA	1
SatShare Cable, HP03, Masimo	1357	$300.00	EA	1

* Confidential Treatment Requested

A3-9

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 [……]*
SatShare Cable, MQ01, Masimo	1321	$300.00	EA	1	[…***…]	[…***…]	[…***…]
SatShare Cable, NK01, Masimo	1367	$300.00	EA	1
SatShare Cable, NK02, Masimo	1368	$300.00	EA	1
SatShare Cable, 0H01, Masimo	1366	$300.00	EA	1
SatShare Cable, 0H02, Masimo	1646	$300.00	EA	1
SatShare Cable, SL 01 Masimo	1323	$300.00	EA	1
SatShare Cable, SL02, a is o	1362	$300.00	EA	1
SatShare Cable, SM01, Masimo	1322	$300.00	EA	1
SatShare Extension Cable, Masimo	1605	$225.00	EA	1
Radical User Manual - Danish, Masimo	11901	$30.00	EA	1
Radical User Manual - Dutch, Masimo	11902	$30.00	EA	1
Radical User Manual - English, Masimo	11601	$30.00	EA	1
Radical User Manual - French, Masimo	11715	$30.00	EA	1
Radical User Manual - German, Masimo	11714	$30.00	EA	1
Radical User Manual - Italian, Masimo	11716	$30.00	EA	1
Radical User Manual - Portuguese, Masimo	11717	$30.00	EA	1
Radical User Manual - Spanish, Masimo	11718	$30.00	EA	1
Radical User Manual - Swedish, Masimo	11903	$30.00	EA	1
Radical Service Manual, Masimo	12114	$100.00	EA	1
Masimo Tester	1593	$425.00	EA	1
Masimo Tester with cable	1795	$425.00	EA	1
Masimo SET IntelliVue Module (Module and Patient Cable)	1846	$3,030.00	EA	1

* Confidential Treatment Requested

A3-10

EXHIBIT A-3 PRICE LIST

Contract #: PP-NS-347

Masimo Corporation

PULSE OXIMETERS

Contract Effective: 3/1/2006


PRODUCT DESCRIPTION	PRODUCT NUMBER	LIST PRICE	UOM	Qty Per UOM	TIER 1 [……]*	TIER 2 [……]*	TIER 3 [……]*
Masimo SET IntelliVue Patient Cable	1847	$235.02	EA	1	[…***…]	[…***…]	[…***…]
Masimo SET VueLink Module (and VueLink cable)	1881	$1,7,97.00	EA	1
Masimo Set VueLink cable	1841	$227.00	EA	1
GE Train updgrade (see note)	12949	3,443.00	EA	1
GE Dash updgrade (see note)	13108	$8,250.00	EA	1
RadLink Tranceiver Kit, 467.8MHz (incl tranceiver, pwr supply, serial cable, mounting bracket and antenna)	1878	$1,300.00	EA	1
RadLink 4-Line Pager, 467.8MHz (includes battery and belt clip)	1879	$420.00	EA	1
RadLink Tranceiver Programming Kit (One required per installation. Includes RadLink Master Transceiver, power supply, serial cable, antenna and mounting hardware, Installation Software CD, and Null Modem Serial Programming Cable)Without Laptop Windows	1880	$2,000.00	EA	1
Installation and initial configuration for RadLink transceiver. (one require per tranceiver, does not include travel or expenses)	1878- Inst	$150.00	EA	1
RadLink mounting bracket for Radical (includes mounting screws	1888	$80.00	EA	1
RadLink spare power supply	12992	$156.00	EA	1
RadLink spare antenna	12993	$48.00	EA	1
RadLink serial cable - RadLink to Radical, 18”	30859	$40.00	EA	1
RadLink Pager Belt Clip	13179	$25.00	EA	1

* Confidential Treatment Requested

A3-11

EXHIBIT B

MEMBERSHIP ROSTER ACCESS INSTRUCTIONS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

In order to access the Membership Roster, Seller must register for and receive approval to use Purchasing Partners’ Supplier Web Site. The following instructions apply:

I. Registration on Premier Web Site

Instructions:

1.	Go to http://www.premierinc.com

2.	Locate and select Register button

3.	Read and accept the terms of use

4.	A registration screen will appear

5.	Complete all required fields and click on Submit button

The registration process requires Seller to designate an individual to serve as a Membership Administrator who shall administer and monitor the terms of the Agreement related to the Membership Roster (see Article 3.0 of the Agreement) and reporting of information related to purchases (see Article 9.0 of the Agreement). The name of the Membership Administrator shall be provided to Purchasing Partners as of the Effective Date and Seller shall notify Purchasing Partners as to any change in the Membership Administrator.

Immediately following step 5 above, a confirmation page should appear on-screen. All registration remains subject to approval and verification by Purchasing Partners. Purchasing Partners shall notify Seller by e-mail or otherwise, when registration has been approved.

Following a successful registration, Seller shall access the Membership Roster by completing the following steps:

II. Instructions to Accessing Membership Roster on the Premier Web Site

Instructions:

1.	Go to http://www.premierine.com

2.	Locate and select the Supplier resources link (located in the Popular Links block on the right side of page)

3.	Locate and select the For contracted suppliers link (located in the links block on the left side of page)

4.	Locate and select Rosters link from the menu

5.	Locate and open the file, Detailed Instructions for Downloading Rosters

6.	Review and complete instructions

B-1

EXHIBIT C

AUTHORIZED DISTRIBUTORS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

The list of Authorized Distributors will be provided by Seller and periodically updated according to the terms of the contract.

Cardinal

McKesson

Owens and Minor

Burrows

Mercury Medical

Ball State

C-1

EXHIBIT D

REPORTING FORMATS ACCESS INSTRUCTIONS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

The required reporting formats as referenced in Article 9.0 are documented in Premier’s E lectronic R eporting F ormat (PERF) guide. The PERF guide is available on Premier’s website, PremierInc.com. Please follow the instructions below for access.

1.	Go to http://www.premierinc.com

2.	Find the Popular links section in the vertical middle/horizontal right of the screen

3.	Click on the Supplier resources link

4.	Click on Related Links on the left side of the screen

5.	Click on Premier’s Electronic Reporting Format Guide in the body of the screen

6.	Read the brief article and select Premier’s Electronic Reporting Format Guide.pdf link.

The file is viewable or printable.

To get started, please read the Testing Process on page 4. When ready to start the testing process or to get answers to questions you may have, please contact the person listed on the cover page of the PERF Guide or any of the contacts listed on page 5. We’re here to help!!

D-1

EXHIBIT E

PAYMENT INSTRUCTIONS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

All wires should be set up as follows:


Beneficiary:		Premier Purchasing Partners, L.P.

Beneficiary Bank:		Wells Fargo Bank Commercial Banking Office 401 B Street, Suite 2201 San Diego, CA 92101

Beneficiary Account:		[...***...]

Bank ABA:		[...***...]

Checks should be made payable to “Premier Purchasing Partners L.P.” and sent to the following address:

Premier Purchasing Partners, L.P.

BOX 77650

Los Angeles, CA 90084-7650

Send overnight packages or express courier packages to our lockbox location at the following address:

Wells Fargo Lockbox

Premier Purchasing Partners, L.P. 77650

1200 W. 7th Street, Ste. T2-210

Los Angeles, CA 90017-2349

* Confidential Treatment Requested

E-1

EXHIBIT F

MINORITY, WOMAN-OWNED AND SMALL BUSINESSES POLICY


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Purchasing Partners desires to promote an environment that facilitates equal opportunity and access by qualified diversity suppliers, (i.e., small, minority, and woman-owned businesses) desiring to provide quality goods and services to Participating Members. Purchasing Partners is committed to encouraging such access through its procurement efforts. Purchasing Partners believes that implementing this policy is good business practice consistent with its mission and that of its members. Furthermore, Purchasing Partners and its affiliates recognize and are sensitive to the high level of importance that Premier members place on the development of minority, woman-owned and small businesses in their local communities.

Purchasing Partners will make every effort to offer a diverse supplier portfolio that meets or exceeds its’ members’ supplier diversity policies. In the event that Purchasing Partners’ supplier diversity portfolio does not meet particular members’ needs, Purchasing Partners’ policy will be to recommend to the Group Purchasing Policy Committee (the “Committee”) that it grant compliance exemption requests from affected members to the extent necessary to enable such members to comply with applicable federal, state, local or self- imposed supplier diversity policies. Any such exemption request is subject to the Committee’s normal approval process.

Purchasing Partners’ contracted suppliers are encouraged to spend a minimum of three percent (3%) of their annual production and raw material costs with minority-owned businesses and a minimum of two percent (2%) of such costs with women-owned businesses. Seller acknowledges that, subject to Purchasing Partners’ compliance with its existing contractual obligations, Purchasing Partners may enter into group purchasing agreements with any diverse suppliers and that one of the main factors underlying Purchasing Partners’ decision to enter into such agreements could be contracted suppliers’ inability or unwillingness to comply with such supplier diversity expenditure targets. Seller shall consider working with any diversity supplier reasonably recommended by Purchasing Partners to assist Seller and Participating Members in complying with the objectives described in this policy.

Seller shall provide a bi-annual report, documenting its expenditures with respect to diverse suppliers. Reporting is to commence within six months of the Effective Date and shall comply with the reporting dates and format set forth in the Premier Business Partner’s website, located under Industry Initiatives and is labeled Supplier Diversity 2nd Tier Report. Only reported purchases from minority and women-owned businesses that are certified by a valid national, state or local certification agency shall qualify for consideration under this policy. Each reported small business entity must have completed a self certification available in the format set forth at www.premierinc.com/supplierdiversity in order to qualify for consideration under this policy.

Suggested certifying agencies are:

•

National Minority Suppliers Development Council ( www.umsdcus.org )

•

Women’s Business Enterprise National Council ( www.wbenc.com )

•

Small Business Administration ( www.sba.gov )

Supplier Diversity Plan : Seller’s diversity plan and compliance with this policy will be discussed during Seller’s periodic business reviews with Purchasing Partners.

F-1

EXHIBIT G

SELLER INFORMATION SHEET


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Seller qualifies as a Small Business under the Small Business Administration criteria. If yes, complete Section 3. Yes x No ¨ (Most organizations qualify if they have fewer than 500 employees. However, there are some exceptions. To review criteria, please consult http://www.sba.gov/size , http://www.sba.gov/size/NAICS-matched-with-size-stds-umbrella.htm , or contact your federal government representative’s office.)

Seller’s, business is at least 51% owned/controlled/operated by a non-minority woman and such owner is a U.S. Citizen. If yes, complete Section 4.

Yes x No ¨

Seller’s business is at least 51% owned/controlled/operated by one of the following and such owner is a U.S. Citizen. If checked, complete Section 4.

African American (ethnic origin in any of the Black racial groups of Africa)

Hispanic American (ethnic origin in any of the Spanish speaking areas of Mexico, Central America, South America or the Caribbean basin.)

Asian-Pacific American (ethnic origin in Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific or the Northern Marinas)

Asian-Indian American (ethnic origins in India, Pakistan or Bangladesh)

Native American (a person who is American Indian, Eskimo, Aleut or Native Hawaiian and regarded as such by the community of which the person claims to be a part)

Other:

Veteran; If checked, complete Section 5.

Special (Blind or Severe Disabilities)

x None of the above

G-1

EXHIBIT G

SELLER INFORMATION SHEET


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

SECTION 2

Seller currently maintains regular, ongoing certification for the following quality designations:


x ISO 9001-		Model for quality assurance in design, development, production, installation and servicing

x ISO 9002-		Model for quality assurance in production, installation and servicing

x ISO 9003-		Model for quality assurance in final inspection and test

x ISO 13485-		Medical Device Manufacturer

x ISO 14001-		Model for environmental management systems

x Other National/International Standards or Certifications: CE MARK

Please list any professional associations of which Seller is a member. (These may include, for example, National Association of Manufacturers, Food Distributors International, Medical Device Manufacturers Association, etc.) MDMA

SECTION 3

Complete this section only if you indicated that your company is a small business enterprise (SBE), sign below and fax this page to 704.733.4859.

1. Review the Small Business Administration (SBA) Size Standards information:

Go to: www.SBA.gov/size

Select: See NAICS Size Standards

Select: New Table of Small Business Size Standards based on NAICS codes

2. Determine if your company meets the required size standards based on your company’s NAICS codes.

3. If yes, complete the following information and sign the form.

I have reviewed information provided by SBA and hereby certify that

Company:

Subsidiary of:

NAICS code(s):

G-2

EXHIBIT G

SELLER INFORMATION SHEET


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Operates independently and meets SBA size standards in:

(Please check one that applies)

•

Number of employees

•

Millions of dollars


Company Authorized Signature
Title
Phone number
		Fax
Date

3.	Fax this signed page to Premier, Inc. at 704.733.4859.

SECTION 4

Complete this section only if you indicated that your company is woman-owned or minority-owned.

1.	Fax your company’s official local/city/state certification to 704.733.4859.

2.	For all questions about this documentation, please contact Gleatha Glispie at 630.891.4542.

SECTION 5

Complete this section only if you indicated that your company is veteran-owned.

1.	Fax your company’s DD-214 to 704.733.4859.

G-3

EXHIBIT I

ADDITIONAL WARRANTIES


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Radical Manual

Warranty

Battery is warranted for six (6) months from date of purchase.

Exclusions

End-user license agreement

THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU, THE “PURCHASER,” AND Masimo Corporation (“MASIMO”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE ENTIRE PACKAGE, INCLUDING ALL ACCESSORIES, IN THEIR ORIGINAL PACKAGE, WITH YOUR SALES RECEIPT TO MASIMO FOR A FULL REFUND.

I-1

EXHIBIT I

ADDITIONAL WARRANTIES


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

1. Grant of License: In consideration of payment of the license fee, which is part of the price paid for this product, MASIMO grants to Purchaser a nonexclusive, nontransferable license, without right to sublicense, to use the copy of the incorporated software/firmware and documentation in connection with Purchaser’s use of the Masimo Products for their labeled purpose. MASIMO reserves all rights not expressly granted to Purchaser.

3. Assignment: Purchaser shall not assign or transfer this License, in whole or in part, by operation of law or otherwise, without MASIMO’s prior written consent; any attempt without such consent, to assign any rights, duties or obligations arising hereunder shall be void.

4. Copy Restrictions: The software/firmware and the accompanying written materials are copyrighted. Unauthorized copying of the software, including software that has been modified, merged, or included with other software, or other written materials is expressly forbidden. You may be held legally responsible for any copyright infringement that is cause or incurred by your failure to abide by the terms of this license. Nothing in this license provides any rights beyond those provided by 17 U.S.C. §117.

5. Use Restriction: As the Purchaser, you may physically transfer the products from one location to another provided that the software/firmware is not copied. You may not electronically transfer the software/firmware from the products to any other device. You may not disclose, publish, translate, release or distribute copies of the software/firmware or accompanying written materials to others. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the software/firmware. You may not modify, adapt, translate, or create derivative works based on the written materials without the prior written consent of MASIMO.

6. Transfer Restrictions: The software/firmware is licensed to the Purchaser, and may not be transferred to anyone, except other end-users, without the prior written consent of MASIMO. In no event may you transfer, assign, rent, lease, sell, or otherwise dispose of the software/firmware or the products on a temporary basis.

7. U.S. Government Rights: If you are acquiring software (including the related documentation) on behalf of any part of the United State Government, the following provisions apply: the software is deemed to be “commercial software” and “commercial computer software documentation,” respectively pursuant to DFAR Section 227.7202 FAR 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software (including the related documentation) by the U.S. Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this agreement.

I-2

EXHIBIT I

ADDITIONAL WARRANTIES


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

LNOP L-Series adhesive sensors

WARRANTY

THE FOREGOING IS THE SOLE AND EXCLUSIVE WARRANTY APPLICABLE TO THE PRODUCTS SOLD BY MASIMO TO BUYER. MASIMO EXPRESSLY DISCLAIMS ALL OTHER ORAL, EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. MASIMO’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY SHALL BE, AT MASIMO’S OPTION, TO REPAIR OR REPLACE THE PRODUCT.

WARRANTY EXCLUSIONS

This warranty does not extend to any product that has been used in violation of the operating instructions supplied with the product, or has been subject to misuse, neglect, accident or externally created damage. This warranty does not extend to any product that has been connected to any unintended instrument or system, has been modified, or has been disassembled or reassembled. IN NO EVENT SHALL MASIMO BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL MASIMO’S LIABILITY ARISING FROM ANY PRODUCTS SOLD TO BUYER (UNDER A CONTRACT, WARRANTY, TORT OR OTHER CLAIM) EXCEED THE AMOUNT PAID BY BUYER FOR THE LOT OF PRODUCT(S) INVOLVED IN SUCH CLAIM. THE LIMITATIONS IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE ANY LIABILITY THAT, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT LEGALLY BE PRECLUDED BY CONTRACT. This limitation on liability shall not apply to Seller’s indemnification obligations under Section 12.1.

I-3

EXHIBIT K

SELLER’S RETURNED GOODS POLICY


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Supplier’s policy for returning goods and receiving credit is as follows:

•

As Member or Authorized Distributor’s (collectively, “ Purchaser ”) sole remedy and Supplier’s sole responsibility with respect to any breach of the Product warranty, Supplier shall accept Product for return, and repair or replace such Product, provided that: (i) such Product is returned to Manufacturer due to non-conformity with the warranty provided in Section 12; (ii) such Product is returned to Manufacturer within the warranty period; and (iii) Purchaser must first request and obtain from Supplier a Return Material Authorization Number.

•

In the event of a general recall or a limited recall, whether directed by the Food and Drug Administration or voluntarily on the part of Supplier, Purchaser will be refunded for Products subject to such recall that are returned to Supplier by Distributor in the amount paid by Purchaser for such Products. All shipping costs will be paid by Supplier. All returns from Members will be handled on a direct basis between Supplier and such Member unless otherwise agreed by Supplier and Purchasing Partners. Purchaser will maintain records of Product shipments, and as necessary to comply with appropriate federal, state or local authorities notification or handling of any customer complaints or other occurrences regarding the Products which are required by law to be so reported. Purchaser will notify Manufacturer of any such situations within 24 hours of becoming aware of any such occurrence.

Your Supplier key account manager will provide you with additional information on product returns.

•

RECEIVING — Damaged goods should be refused by the Purchaser. Freight damage should be noted on the carrier delivery papers and signed by the carrier driver and Supplier Customer Service Department notified in accordance with the procedure outlined below:

Any damage to product incurred during shipment from Supplier to the Purchaser should be refused.

•

Concealed shortages or damages within overpackers should be reported to Customer Service within 72 hours of delivery or credit will not be allowed.

•

Concealed shortages or damages within palletized shipments should be reported within 48 hours of delivery or credit will not be allowed.

•

Concealed shortages (manufacturer’s) within full cases should be reported to Customer Service immediately when encountered.

K-1

EXHIBIT L

ORDERING INSTRUCTIONS


SELLER:		Masimo Corporation

CONTRACT NUMBER:		PP-NS-347

PRODUCT CATEGORY:		Pulse Oximeters

Orders may be placed with Customer Service via phone or fax.

Customer Service

Phone: 800.326.4890

Fax: 949.297.7499

L-1

PREMIER PURCHASING PARTNERS, L.P.

AMENDMENT NUMBER #1 TO GROUP PURCHASING AGREEMENT

CONTRACT #: PP-NS-347

Product Category: Pulse Oximeters

Product Additions

This Amendment Number 1 (“Amendment”), is entered into effective July 15, 2006 (the “Effective Date”), and shall amend and modify the Group Purchasing Agreement (Contract #: PP-NS-347) by and between Premier Purchasing Partners, L.P. (“Purchasing Partners”), and Masimo Americas (“Seller”), dated effective March 1, 2006 (the “Agreement”), as follows:

1. Addition of Products . Effective as of the Effective Date, Exhibit A-3 Price Lists to the Agreement is hereby amended to add the Products set forth in Schedule 1 hereto. The price of such Products and other pertinent information concerning such Products is also set forth in Schedule 1 hereto.

2. Other Terms and Conditions . All other terms and conditions of the Agreement shall remain in full force and effect.

This Amendment is hereby executed as of the Effective Date by the parties’ authorized representatives set forth below.



Title: Senior Director, Contract Management


PREMIER PURCHASING PARTNERS, L.P.		Masimo Americas
(“Purchasing Partners”)		(“Seller”)

By:	PREMIER PLANS, L.L.C., Its General Partner

By:	/s/ J OHN W. H ARGETTE	By:	/s/ J IM B EYER



Printed Name:	John W. Hargette	Printed Name:	Jim Beyer



Printed Name:		Thomas F. Kepper



Title:		Senior Director, Contract Management

PP: /s/ CLD Seller: /s/ JB


		1

		Amd. 1

PP-NS-347

Amendment 1

Schedule 1

Effective July 15, 2006

Masimo Americas

Pulse Oximeters

Product Additions


Manufacturer Catalog Number	Item Description	UOM	Qty/UOM	Tier 1 [...***...]	Tier 2 [...***...]	Tier 3 [...***...]
1116	LNOP Sensor Sample Pack, 4-Adt, 2-Pdt, 2-Neo, 2-NeoPt Adhesive Sensors	Each	1	[...***...]	[...***...]	[...***...]
1277	LNOPvAd, 24/box	Box	24
1282	LNOP Sensor Application Training Pack, 1-Adt, 1-Pdt, 1- Neo, 1-NeoPt, 2 cotton swabs, 2 alcohol swabs, 1-foot w/app. Card	Each	1
1365	SatShare Cable, DS03, Masimo	Each
1705	Rad-5v Portable Oximeter, DCSC t (fka #1884)	Each	1
1708	R2 Radical Handheld, Blue Screen	Each	1
1789	SatShare Cable, MS01, Masimo	Each	1
1802	Rad-5 Portable Oximeter, Premium, DCSC t (fka #1883)	Each	1
1805	MAC-1 & LNOP DC-195 Sample Kit	Each	1
1806	Sample Kit, MAC-1 Adapter Cable, 2 LNOP Adt, 2 LNOP Pdt	Each	1
1807	Sample Kit, MAC-1 Adapter Cable, 2 LNOP Neo-L, 2 LNOP Inf-L	Each	1
1901	LNCS Neo PT, Soft touch Neonatal Adhesive	Box	1
1902	LNCS to Intellivue Module	Each	1
1970	LNOP Blue, 10/box, Infant Thumb/Toe Sensor	Box	10
1979	RadNet Interface Module, Wired	Each	1
2023	SatShare Cable, D005, Masimo	Each	1
2113	RadNet Interface Module, Wireless	Each	1
2200	Rad-57cm Portable CO-Oximeter with CO & Methemoglobin, Rainbow DCI- dc3	Each	1
2201	Rainbow DCI-dc3, Adult Reusable Direct Connect Sensor, 3 ft, 1/box (Sp02, SpCO and SpMET)	Each	1
2202	Rainbow DCI-dc12, Adult Reusable Direct Connect Sensor, 12 ft, 1/box (Sp02, SpCO and SpMET)	Each	1
2203	LNOP Newborn Neonatal, 201box, Neonatal Sensor	Box	20
2204	LNOP Newborn Infant, 20/box, Neonatal Sensor	Box	20
2207	Water Resistant Handheld Carrying Case, Black	Each	1
2208	Water Resistant Handheld Carrying Case, Red	Each	1
2223	SatShare Cable, DO06, Masimo	Each	1
9019	Configurable, Rad-8, Horizontal	Each	1
9020	Configurable, Rad-8, Vertical	Each	1


		2

		Amd. 1		* Confidential Treatment Requested

PP-NS-347

Amendment 1

Schedule 1

Effective July 15, 2006

Masimo Americas

Pulse Oximeters

Product Additions


Manufacturer Catalog Number	Item Description	UOM	Qty/UOM	Tier 1 […***…]	Tier 2 […***…]	Tier 3 […***…]
9023	Configurable, Radical Docking Station RDS-3	Each	1	[…***…]	[…***…]	[…***…]
9024	Configurable, Radical Docking Stn RDS-4, Blu LED, RS-232, SatShare	Each	1
9025	Configurable, Rad-5 Portable Oximeter, Premium, World Wide, DCSC	Each	1
9026	Configurable, Rad-5v Portable Oximeter, World Wide, DCSC	Each	1
9031	Radical-7 Handheld	Each	1
12262	Operator’s Manual, Rad-9	Each	1
12994	Rad Link serial cable - RadLink to Radical, 12"	Each	1
13017	Operator’s Manual, Rad-5/5v	Each	1
13116	Operator’s Manual, IntelliVue - English	Each	1
13670	Terminal Server Kit (for wired system), 15 port	Each	1
13671	Terminal Server Kit (for wired system), 31 port	Each	1
13730	PPO+ Replacement Batteries, 2lbox	Each	2
13822	PPO+ LNOP-DCI Adult Reusable Sensor	Each	1
13823	PPO+ LNOP-DCIP Pediatric Reusable Sensor	Each	1
13824	PPO+ LNOP Cable, 4’ (use only with Masimo sensors)	Each	1
13920	Operator’s Manual, RadLink	Each	1
30475	Radical Series Handheld Case	Each	1
30534	Radical Series Handheld Lock Key	Each	1
30991	Operator’s Manual, RadNet	Each	1
31068	Operator’s Manual, Rad-57cm	Each	1
1705	Rad-5v Portable Oximeter, DCSC t (fka #1884)	Each	1
1802	Rad-5 Portable Oximeter, Premium, DCSC t (fka #1883)	Each	1
9021	Configurable, Radical Docking Station, RDS-1	Each	1
9030	Configurable, R2 Radical Handheld, Blue Screen	Each	1


		3

		Amd. 1		* Confidential Treatment Requested

PREMIER PURCHASING PARTNERS, L.P.

AMENDMENT NUMBER #2 TO GROUP PURCHASING AGREEMENT

CONTRACT #: PP-NS-347

Product Category: Pulse Oximeters

Product Additions

This Amendment Number 2 (“Amendment”), is entered into effective November 1, 2006 (the “Effective Date”), and shall amend and modify the Group Purchasing Agreement (Contract #: PP-NS-347) by and between Premier Purchasing Partners, L.P. (“Purchasing Partners”), and Masimo Americas (“Seller”), dated effective March 1, 2006 (the “Agreement”), as follows:

2. Price Decreases . Effective as of the Effective Date, Exhibit A-3 Price List to the Agreement is hereby amended to change the prices for the Products listed in the attached Schedule 2.

3. Other Terms and Conditions . All other terms and conditions of the Agreement shall remain in full force and effect.

This Amendment is hereby executed as of the Effective Date by the parties’ authorized representatives set forth below.


PREMIER PURCHASING PARTNERS, L.P.		Masimo Americas
(“Purchasing Partners”)		(“Seller”)

By:	PREMIER PLANS, L.L.C. Its General Partner

By:	/s/ J OHN W . H ARGETTE	By:	/s/ J IM B EYER



Printed Name:	John W. Hargette	Printed Name:	Jim Beyer



Printed Name:		Timothy M. Rezash



Title:		Senior Director, Contract Management

PP: /s/ CLD Seller: /s/ JB


		1
		Amd. 2

PP-NS-347

Amendment 2

Schedule 1

Effective November 1

Masimo Americas

Pulse Oximeters

Product Additions


Manufacturer Catalog Number	Item Description	UOM	Qty/ UOM	Tier 1 [...***...]	Tier 2 [...***...]	Tier 3 [...***...]
1228	LNOP Adult Sensor Sample Pack, 3-Adt / 1-Pdt Adhesive Sensors	EACH		[...***...]	[...***...]	[...***...]
1229	LNOP Neo Sensor Sample Pack, 3-Neo, 1-NeoPt	EACH	1
1283	LNOP Sensor Sample Pack, 2-Adt, 1-Ped, 1-Neo	EACH	1
1592	ProCal cable	EACH	1
1816	LNCS to PC Adaptor	EACH	1
1848	AC-1 LNOP Sensor to Philips Instrument Patient Cable, 8 pin	EACH	1
1849	AC-1 LNOP Sensor to Philips Instrument Patient Cable, 12 pin	EACH	1
1851	SP02.COM Sensor Sample Pack (I ea. Ad, Pd, Ne and In)	EACH	1
1852	NRC-P8 Patient Cable, Philips 8-pin to SP02.COM, 3.3ft	EACH	1
1886	NRC-P8 Patient Cable Ext, Philips 8-pin to SP02.COM, 6.6ft extension cable	EACH	1
1897	LNCS Sensor Sample Pack, 3-Adtx, 1-Pdtx	EACH	1
1898	LNCS Neo Sensor Sample Pack, 2-Neo-L, 1-Pdtx, 1-Inf-L	EACH	1
1899	LNCS Sensor Sample Pack, 1-Adtx, 1-Pdtx, 1-Neo-L, 1- Inf-L	EACH	1
1900	NRC-SL Patient Cable, SpaceLabs to SP02.COM, 1 Oft	EACH	1
1937	Sample Kit, MAC-1 Adapter Cable, LNOP DC-I	EACH	1
1969	LNOP DC-I-dcI2, Adult Reusable Direct Connect Sensor, 12 foot cable, 1/box	EACH	1
1978	PC-12-GE, 1/box, 12 ft. LNOP to GE Patient Cable	EACH	1
2013	LNC-14 Cable 1/box 14ft. Patient Cable	EACH	1
2016	LNC-10-GE, 1/box, 10 ft. LNCS to GE Patient Cable	EACH	1
2021	LNC-4-EXT	EACH	1
2055	Red LNC-04, 1/box 4 ft. Patient Cable	EACH	1
2056	Red LNC-10, 1/box 10 ft. Patient Cable	EACH	1
2057	Red LNC-14, 1/box 14 ft. Patient Cable	EACH	1
2058	Red PC-04, 1/box 4 ft. Patient Cable	EACH	1
2059	Red PC-08, 1/box 8 ft. Patient Cable	EACH	1
2060	Red PC-12, 1/box 12 ft. Patient Cable	EACH	1
2097	Handheld Protective Boot - Royal Blue	EACH	1
2098	Handheld Protective Boot - Light Blue	EACH	1
2099	Handheld Protective Boot - Pink	EACH	1
2137	Rad-5/5v Protective Boot - Gray	EACH	1
2138	Rad-5/5v Protective Boot - Yellow	EACH	1
2139	Rad-5/5v Protective Boot - Red	EACH	1
2140	Rad-5/5v Protective Boot - Orange	EACH	1


		2

		Amd. 2		* Confidential Treatment Requested


Manufacturer Catalog Number	Item Description	UOM	Qty/ UOM	Tier 1 […***…]	Tier 2 […***…]	Tier 3 […***…]
2141	Rad-5/5v Protective Boot - Royal Blue	EACH	1	[…***…]	[…***…]	[…***…]
2215	Headband for LNOP/LNCS TF-I, 12/box	BOX	12
2227	Rad-8 Mounting Bracket	EACH	1
2228	Rad-8 Power Cord Lock	EACH	1
2258	LNCS YI, Multisite Reusable Sensor, 1/box	EACH	1
2263	LNC 10’ Patient Cable to Philips 12-pin CMS Sp02	EACH	1
2264	LNC 10’ Patient Cable to GE conventional Sp02	EACH	1
2266	LNC 10’ Patient Cable to SL conventional Sp02	EACH	1
2267	LNC 10’ Patient Cable to 8-pin CMS Sp02	EACH	1
2268	LNC 10’ Patient Cable to Nellcor 180 Oximeter	EACH	1
2269	LNC 10’ Patient Cable to Nellcor 395 Oximeter	EACH
9028	Configurable Rad-9 Pulse Oximeter	EACH	1
11773	Wall Mount Extension Arm (Radical)	EACH	1
13833	Medium Duty Roll Stand (Radical)	EACH	1
13927	Post Rail Mount (Radical and Rad-8)	EACH	1
30502	Eagle Bracket (Radical)	EACH	1
30503	Right Angle Bracket (Radical)	EACH	1
30512	Box Bracket (Radical)	EACH	1
30579	V-Block (Radical and Rad-8 in conjunction w/ Baseplate or L-Bracket)	EACH	1
30580	Baseplate (Radical and Rad-8)	EACH	1
30581	L Bracket (Radical)	EACH	1
30583	Radical Slide Plate (Radical and Rad-8)	EACH	1
30750	J Bracket (Radical and Rad-8)	EACH	1
30751	Left Angle Bracket (Radical and Rad-8)	EACH	1
30801	C-Clamp (Radical)	EACH	1
30807	Merlin Yolk (Radical)	EACH	1


		3

		Amd. 2		* Confidential Treatment Requested

Manufacturer
Catalog
Number

Item Description

UOM

Qty/
UOM

Tier 1
[…***…]

Tier 2
[…***…]

Tier 3
[…***…]

9019

Configurable, Rad-8, Horizontal

EACH

[…***…]

9020

Configurable, Rad-8, Vertical

EACH


		4

		Amd. 2		* Confidential Treatment Requested

Exhibit 10.24

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

SUPPLY AGREEMENT

This Agreement is entered into as of the 22nd day of February 2002, by and between Masimo Corporation, a Delaware corporation (the “BUYER”) and Wintek Electro-Optics Corporation., a Michigan corporation (the “SELLER”).

WHEREAS, SELLER desires to manufacture exclusively for BUYER, Liquid Crystal Displays (hereinafter referred to as “LCD”) as per BUYER’s specification, and BUYER desires to purchase LCD’s from SELLER.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.	DEFINITIONS

1.1

“LCD Assembly” shall mean the items listed and described within the purchase order that is issued to SELLER by BUYER, which are manufactured according to the specifications provided by BUYER

1.2

“Non-Recurring Engineering Charge” shall mean the cost to SELLER of manufacturing the engineering samples of the LCD Assembly. Includes Wintek tooling and fixtures, Teledyne backlight tooling, and Hitachi Tab/IC tooling.

2.	PRODUCT SUPPLY

2.1

General . BUYER shall submit a purchase order (the “Purchase Order”) to SELLER specifying the quantity of LCD, Assembly to be purchased by BUYER, as set forth in this Section 2. BUYER shall submit at least one Purchase Order to SELLER, on a quarterly basis, as determined by the BUYER. Notwithstanding the foregoing, BUYER may submit more than one Purchase Order per quarter.

2.2

Initial Purchase Order: Procurement and Testing of Engineering Samples . BUYER shall submit an initial Purchase Order (the “Initial Purchase Order”) to SELLER within thirty (30) days of the date of this Agreement. The Initial Purchase Order shall specify the type, quantity, and specifications of engineering samples of the LCD Assembly (the “Samples”) required by BUYER for testing. BUYER and SELLER shall mutually agree on the specifications (the “Specifications”) for the Samples. The BUYER shall have up to six (6) months from the date of its receipt of the Samples to test and evaluate said Samples. To the extent practicable, BUYER and SELLER shall agree upon the testing criteria for the Samples to determine if they meet the Specifications. Notwithstanding the foregoing, BUYER shall determine, in its sole discretion, whether the Samples

- 1 -

meet the required Specifications. In the event the Samples fail to meet the Specifications, including engineering tests and field customer evaluations, as determined by BUYER, in its sole discretion, BUYER shall notify the SELLER, pursuant to Section 10.2 of this Agreement. Within 5 days of the receipt of such notice from BUYER, SELLER must notify BUYER of its intention to remedy the failure, setting forth in reasonable detail its assessment of the failure and the time period required to remedy the cause of failure. If SELLER’s proposed remedy or time frame is not acceptable to BUYER, in its sole discretion, BUYER may cancel the Initial Purchase Order, and any other Purchase Order submitted by BUYER, without penalty.

2.3

Fulfillment of Purchase Orders by SELLER . SELLER shall ship the LCD Assembly products to BUYER, in the quantities, at such times, and to the locations as requested by BUYER in each Purchase Order.

2.4

Forecast and Inventory . During the first week of each of its fiscal quarters, BUYER shall provide to the SELLER a rolling forecast of LCD Assembly requirements for such quarter, which SELLER shall use for capacity planning purposes.

2.5

Cancellation of Purchase Order . BUYER reserves the right to revise or cancel any Purchase Order, without penalty, where the cancellation is necessitated by changes in technology which are not incorporated in SELLER’s LCD Assembly, cancellations by BUYER’s customers for BUYER’s products which incorporate SELLER’s LCD Assembly, or a redesign of BUYER’s current configuration of instrumentation that house the LCD ASSEMBLY which redesign renders SELLER’s LCD Assembly incompatible, as determined by BUYER in its sole discretion, with BUYER’s products. For a cancellation by BUYER pursuant to this Section 2.5 to be without penalty, cancellation notice must be provided to SELLER at any time up to and including one hundred twenty (120) days prior to the scheduled shipment date as set forth in the applicable Purchase Order. To the extent that such notice is not sent at least one hundred twenty (120) days prior to the scheduled shipment date, BUYER shall accept said shipment subject to the conditions and provisions of this Agreement. Notwithstanding the foregoing, BUYER’s notice of cancellation shall operate as cancellation notice for all additional Purchase Orders, which Purchase Orders have a scheduled shipment date more than one hundred twenty (120) days after the date such notice was sent.

2.6

Delivery; Title; Risk of Loss .

(a)

Delivery .

SELLER shall ship the LCD Assembly products to BUYER, in such amounts and at such times, as requested by BUYER pursuant to the applicable Purchase Order.

Lead Time for production orders will be per Exhibit A.

- 2 -

(b)

Title .

The title to the Products will pass directly from SELLER to BUYER upon acceptance by BUYER.

(c)

Risk of Loss .

SELLER shall bear the risk of loss prior to actual Receipt and Acceptance of the LCD Assembly products by BUYER. Risk of loss shall pass to BUYER upon its acceptance of the LCD Assembly products. For purposes of the foregoing, Acceptance by BUYER shall occur when BUYER, or its designee, takes physical possession of the LCD Assembly products, at which time they shall be deemed to be in BUYER’s possession and/or control.

3.	EXCLUSIVITY/CAPACITY

3.1

Exclusivity . The BUYER agrees to make the SELLER its exclusive supplier for the LCD ASSEMBLY during the term of this Agreement or such earlier date as this Agreement is terminated by either party subject to the terms of this Agreement. BUYER agrees that in the event that BUYER develops additional products which require LCD Assembly products, SELLER will have the first opportunity to negotiate a contract for provision of such LCD Assembly products to BUYER for inclusion in BUYER’s new product line; provided, however, that nothing contained herein requires BUYER to select SELLER as its supplier LCD Assembly products for any such other products developed by BUYER Notwithstanding the foregoing, BUYER shall provide the specifications, as determined by BUYER in its sole discretion, for the new product line. SELLER shall have sixty (60) days from the date such specifications are sent by BUYER to negotiate terms acceptable to BUYER for inclusion of SELLER’s LCD Assembly products in BUYER’s new product line. Upon payment for Teledyne backlight tooling and Hitachi tab/IC tooling, BUYER has right to procure directly from Teledyne and Hitachi. Parts off these tools are for the sole consumption of Masimo.

3.2

Capacity . The SELLER shall maintain and manage capacity at its facility sufficient to manufacture the LCD Assemblies required by BUYER pursuant to this Agreement.

4.	PRICING AND PAYMENT TERMS

4.1

LCD Assembly Price and Non-Recurring Engineering Charges . The price for the LCD Assemblies and Non-Recurring Engineering Charge indicated on Exhibit A hereto.

4.2

Payment Terms . BUYER shall pay SELLER the price applicable to each LCD Assembly. All invoices for purchased LCD Assemblies shall be accumulated by SELLER on a monthly basis and provided to BUYER within fifteen (15) days of

- 3 -

the end of each month. Each invoice shall be due and payable within thirty (30) days of receipt by BUYER.

5.	COST REDUCTIONS/NEW TECHNOLOGY

5.1

Cost Reductions . SELLER shall provide on an as requested basis to BUYER, cost data that provide visibility to cost reduction projects for the LCD Assembly. To the extent that SELLER’s per unit production costs decline at any point during the Term of this Agreement, such cost savings shall be passed on to BUYER in the form of a reduction in the per unit purchase price. To the extent that the SELLER’s per unit production costs decline at any point during the term of this Agreement as a result of manufacturing cost-savings improvements, such cost savings shall be passed on to BUYER in the form of a reduction in the per unit purchase price. To the extent that Seller’s per unit production costs decline at any point during the term of this agreement as a result of quality cost savings improvements, such cost savings shall be passed on to BUYER in the form of a reduction in the per unit purchase price.

5.2

New Technology . If at any time during the Term of this Agreement, SELLER intends to implement new technologies or make significant changes with its current manufacturing processes for production of the LCD Assembly products (the “Enhanced LCD Assembly”), which may result in a redesign or reconfiguration of the LCD Assembly, SELLER shall promptly notify BUYER. BUYER, in its sole discretion, shall determine whether the implementation by SELLER of new technologies or manufacturing processes render the LCD Assembly products incompatible with BUYER’s products incorporating the existing LCD Assembly products. If BUYER determines that SELLER’s Enhanced LCD Assembly is incompatible with BUYER’s products, BUYER may terminate this Agreement upon thirty (30) days notice. If BUYER elects to terminate this Agreement pursuant to this Section 5.2, BUYER shall be obligated to accept on those LCD Assembly products as previously ordered by BUYER and shipped by SELLER prior to BUYER’s notice of termination, subject to the remaining provisions of this Agreement.

If the BUYER accepts the enhanced LCD Assembly products, BUYER may amend any Purchase Order previously submitted to SELLER and for which the requested LCD Assembly products have not been shipped, without any penalty, to allow for the substitution of the Enhanced LCD Assembly products.

6.	QUALITY RECORDS, AUDITS, REGULATORY MATTERS .

6.1

Records . The SELLER shall maintain and make available to the BUYER for inspection, upon reasonable notice, quality records, manufacturing records for BUYER’s product, which contains SELLER’s LCD Assembly. These records include but are not limited to personnel training, equipment calibration and qualification records and manufacturing records.

- 4 -

6.2

Inspections . Upon reasonable notice, the SELLER shall allow the BUYER to make a physical inspection/audit, during normal business hours of the facility at least once per calendar year.

6.3

Quality Level LCD . QC-S-9001 (Test Method: MIL STD - 105D, AQL : 0.65 for major defects, 2.50 for minor defects, 2.50 for total defects).

6.4

Quality Level (LCM) . LM-S- 9001 (Test Method: MIL STD - 105D, AQL : 0.65 for major defects, 2.50 for minor defects, 2.50 for total defects).

7.	WARRANTY

7.1

SELLER warrants that the delivered hereunder will meet the applicable specifications and shall be free from defects in material and workmanship under normal use and service during the term of this Agreement and any renewal thereof. If any LCD Assembly is discovered to be defective by BUYER, or a customer of BUYER’s, BUYER shall notify SELLER of the defect in a timely manner and SELLER shall immediately: (i) implement an investigation to determine the cause of the defect, (ii) provide BUYER with a plan for ensuring that future LCD Assemblies are not subject to the same defect, and (iii) undertake necessary repairs and/or provide replacement parts, to include LCD Assemblies, to such customers as are incoming or customers rejection due to a defective LCD Assembly, BUYER notify SELLER in a timely manner and the SELLER will promptly implement an investigation and take all necessary corrective action in a timely manner as set forth above.

7.2

SELLER further represents and warrants that the LCD Assembly products and/or any use of the LCD Assembly products in accordance with the terms of this Agreement:

(a)

will not infringe, or constitute the misappropriation of, any intellectual property right of any third party, and that SELLER holds all necessary rights and licenses to permit the sale and use of the LCD Assembly products by BUYER as contemplated under the terms of this Agreement; and

(b)

will not otherwise reasonably be likely to expose either Party to criminal or civil liability of any kind.

7.3

Notwithstanding the foregoing, nothing in this Agreement is intended to or shall be construed as creating any third party beneficiary rights.

INDEMNIFICATION . SELLER shall indemnify, defend and hold BUYER, its successors, assigns, directors, shareholders, employees and agents harmless, from any and all any liabilities, claims, causes of action, suits, damages, deficiencies, losses and expenses (including reasonable attorneys’ fees and expenses) relating to: (i) any trademark infringement or similar claims, suits, judgments, expenses or allegations based on the LCD Assembly products; or (ii) SELLER’s breach of any of the warranties,

- 5 -

representations, covenants or agreements contained herein; or (iii) lawsuits filed by customers alleging defects in the LCD Assembly products.

9.	TERM AND TERMINATION

9.1

Term . The term of this Agreement shall commence on the date first written above and expire on the 22nd day of February, 2005, unless terminated earlier pursuant to the terms of this Agreement (the “Term”).

9.2

Automatic Renewal . Unless one party notifies the other party in writing at least six months prior to the end of the Term that the party does not intend to renew or extend this Agreement, the term of this Agreement shall automatically extend until the earlier of: (a) termination of this Agreement by either party upon at least six (6) months’ written notice to the other; or (b) replacement of this agreement by an extension, renewal or other written agreement of the parties.

Notwithstanding the foregoing, this Agreement may be terminated by either party in the event of (i) any material breach by the other party hereto which continues after thirty (30) days written notice of said breach (which notice shall, in reasonable detail, specify the nature of the breach) by the non-defaulting party to the defaulting party as set forth in Section 10.3 below or (ii) a new technology or a change in manufacturing renders the LCD Assembly products incompatible with BUYER’s intended use thereof as set forth Section 5.2.

9.3

Defaults . If either party materially defaults in the performance of any obligation under this agreement, then the other party will have the right to terminate this agreement upon Sixty (60) day prior written notice, unless such defaulting party substantially cures such default or has an acceptable corrective action plan in place to the satisfaction of the other party during that Sixty (60) day notice period. In such event, this agreement shall continue in effect and such notice of termination shall be of no effect.

10.

MISCELLANEOUS

10.1

Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of conflicts of law principles.

10.2

Notice and Communications . All notices and other communications shall be deemed to have been given (a) upon receipt if delivered personally, (b) upon completion of the transmission if telecopied (with confirmation from the sending device that the entire notice or other communication was received by the addressee) or (c) upon execution of the return receipt if mailed certified mail (return receipt requested); and addressed as follows:

- 6 -


To BUYER:		To SELLER:

Masimo Corporation 2852 Kelvin Avenue Irvine, California 92714 Attention: Fax:		Wintek Electro-Optics Corporation 1665 Highland Drive Ann Arbor, Michigan 48108 Attention: Fax:

or to such other address as a party may designate pursuant to this notice provision.

10.3

Waiver . Failure by either party, at any time, to require performance by the other party or to claim a breach of any provision of this Agreement shall not be construed as a waiver of any right accruing under this Agreement, nor shall it affect any subsequent breach or the effectiveness of this Agreement or any part hereof, or prejudice either party with respect to any subsequent action. A waiver of any right accruing to either party pursuant to this Agreement shall not be effective unless given in writing.

10.4

Headings . The headings in this Agreement are for convenience only, and shall not be considered a part of, or affect the interpretation of, any provision of this Agreement.

10.5

Severability . In the event that any provision of this Agreement shall be unlawful or otherwise unenforceable, such provision shall be severed, and the entire agreement shall not fail on account thereof, the balance continuing in full force and effect, and the parties shall endeavor to replace the severed provision with a similar provision that is not unlawful or otherwise unenforceable.

10.6

Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one. and the same instrument. A Party may deliver this Agreement by transmitting a facsimile copy of this Agreement to the other Party. A facsimile copy of this Agreement, including the executed signature page thereof, shall be deemed an original.

10.7

Modification . No amendment to or modification of this Agreement shall be effective unless set forth in a writing signed by both Parties.

10.8

Assignment: Delegation . Neither party may assign its rights or delegate its duties, directly or indirectly, either voluntarily or by operation of law, without the prior written consent of the other Party.

10.9

Survival of Warranties and Indemnities . The warranties and indemnities made by the SELLER in Sections 8 and 9 of this Agreement, respectively, shall be deemed continuing and shall survive the Termination of this Agreement.

10.10

Entire Agreement . This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior and

- 7 -

contemporaneous agreements and understandings of the Parties in connection herewith.

10.11

Exhibits . All exhibits attached to this Agreement are incorporated in and made a part of this Agreement by this reference.

10.12

Waiver of Breach . The waiver by either Party of a breach of any provision of this Agreement will not Deemed a waiver of any subsequent breach of the same or different provision.

IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.


MASIMO CORPORATION		WINTEK ELECTRO-OPTICS CORPORATION

By:	/s/ Gary L.Waite	By:	/s/ B.D. Hughes
Name:	Gary Waite	Name:	Phil Hughes
Title:	VP Manufacturing	Title:	Director

- 8 -

EXHIBIT A

LCD ASSEMBLY PRICE

NON-RECURRING ENGINEERING CHARGES (NRE)$[…***…] Includes 10 samples (5 FFSTN positive, 5 FFSTN negative, 5 STN negative blue mode).

NRE:

[…***…]

NRE, […***…] upon issuance of BUYER’s purchase order. Remaining NRE payable upon delivery of prototypes that meet Masimo approved Wintek LCD assembly specification.

The cost structured as follows:

[…***…]

INITIAL PURCHASE ORDER:

The initial purchase order will be issued for […***…] each as a “ramp-up” quantity […***…]. Production orders to be placed for no less than […***…].

* Confidential Treatment Requested

A-1

EXHIBIT A

LCD ASSEMBLY PRICE

DELIVERY LEAD TIMES:

LCD drawing to be submitted 2 weeks following receipt of order.

LCD Assembly Samples 16 weeks following BUYER approval of Wintek LCD specification.

Delivery Lead Time for production LCD assembly, 16-18 weeks upon receipt of production order, and approval of prototype LCD Assembly.

FUTURE PURCHASE ORDERS:

Future purchase orders will be issued based on a forecast that Masimo Corporation will provide to Wintek on a quarterly basis. This future purchase order can be issued as late as eighteen months after the initial purchase order. Forecast will be based upon current sales demand and historical sales. Masimo current estimates for usage for the LCD are approximately 800-1000 units per month.

A-2

Exhibit 10.25

*** Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

November 26, 2003

Mr. Bradley Langdale

Masimo Corporation

2852 Kelvin Avenue

Irvine, CA 92614

Dear Brad:

We are delighted to inform you that Med One Capital Funding LLC is committed to provide funding for Masimo’s Oximetry Supply Agreement program. We are willing to commit to this ongoing equipment funding arrangement based on the following criteria:

1.	Med One will provide funding for this program on an ongoing basis until (and unless) you receive 180 days advanced written notice of our intent to withdraw from the program.

2.	Med One will commit to a minimum of $20 million to the program for calendar year 2004 and each year thereafter. We are willing to participate in as much of this business as your sales organization can originate – with no maximum amount.

The transactions will be structured as we have previously negotiated in prior meetings and discussions. Med One’s discount rate for all business funded in this manner will be based on the US Treasury Constant Maturities interest rate (as quoted in the Federal Reserve Statistical Release H.15 (519) for the week immediately preceding the request for funding. We will use the term that corresponds to the term of your transaction – or the next higher term if there is not an exact term match. Med One will add 350 basis points to this rate index for purposes of pricing this program only.

4.	The documents will consist of the following:

•

Original Masimo transaction documentation – with original customer signature.

•

Assignment Agreement – executed by authorized officer of Masimo Corporation.

•

UCC-1 filing pertaining to the equipment being funded.

•

Evidence of delivery of the equipment to the customer.

Funding under this program will be non-recourse to Masimo as it pertains to customer’s performance. Notwithstanding this, Masimo will provide a fixed monthly payment to Med One based on the calculations of each specific transaction and will pay this monthly payment monthly each month during the term unless Med One is properly notified of a default by the customer. Masimo will set up an account that Med One will draft directly for each monthly payment.

6.	In addition to this funding program, Med One will make available to the sales organization of Masimo, all of Med One’s current lease, rental and financing options for the use by Masimo’s customer’s on a direct basis.

Thank you for the opportunity to serve your financing and financial services needs. We look forward to a very enjoyable relationship with your company.

Very truly yours,

/s/ Larry R. Stevens

Larry R. Stevens

President

6965 Union park Center Suite 400 Midvale, UT 84047

(800) 248-5882 x4011 ph. (800) 468-5528 fax

*Confidential Treatment Requested

Med One Capital Funding LLC

Initial Fundings for Masimo

14-Nov-03

Customer

Total

Units

Remaining

Balance-Funding

11/30/2003

Original

Term

Remaining

Term

Like

Term

T-Bills

11/07/03

Med

One

Spread

Current

Masimo

Funding

Rate

Monthly Payment - Due 12/30/2003

Total Payments Due

[...***...]

*Confidential Treatment Requested

EQUIPMENT PURCHASE AND ASSIGNMENT OF PROCEEDS

(“Assignment”)

Masimo Corporation, 2852 Kelvin Avenue, Irvine, CA 92614 (“Vendor”) entered into a Pulse Oximetry Supply Agreement (the “Agreement”) with CUSTOMER NAME (“Customer”) dated ____________, 20__ wherein Customer has agreed to acquire the products listed in the Agreement (“Products”) from Vendor in the quantities and at the prices shown therein during a term of __ months which shall begin ____________, 20__.

The Agreement, an executed copy of which is attached hereto as Exhibit A requires Vendor to provide to Customer, among other things, the following described capital equipment (“Equipment”), whereby financing for the Equipment is to be provided by Med One Capital Funding LLC :


Quantity	Equipment Description	Model Number

Transaction Summary:



Equipment Cost To Be Financed:		$

Financing Term:

Applicable Annualized Financing Rate Of Interest: %

Monthly Equipment Amortization:		$

Total Equipment Amortization Over Term:		$

Med One Capital Funding LLC , 6965 Union Park Center, Suite 400, Midvale, UT 84047 (“Med One”) hereby agrees to purchase the Equipment from Vendor and permit Vendor to provide the Equipment to Customer under the terms of Exhibit A and subject to this Assignment between Vendor and Med One. The purchase of the Equipment shall be at a price shown on Med One’s Purchase Order Number ___________ which is attached hereto as Exhibit B . In the event of a conflict between the immediately referenced Purchase Order, the Agreement and this Assignment, the terms of this Assignment will apply. Vendor may substitute different model numbers as long as the Equipment Increment and the quantity remain the same. The purchase price of the Equipment shall be provided to Vendor by wire transfer within two (2) business days after execution of this agreement.

Monthly Total Equipment Amortization equals the total monthly payment which shall be due and payable by Vendor to Med One monthly under this Agreement within 5 business days following the end of the month in which such amount is paid by the Customer, up to a cumulative amount not to exceed the Total Equipment Amortization, as set forth above.

Subject to the terms of this Assignment, Vendor hereby assigns all of its right, title and interest in and to the Equipment and the proceeds pertaining to the Equipment Increment under or by virtue of the Agreement to Med One and agrees that all amounts to become due or collected under Exhibit A for purchase of Products by Customer shall be designated proportionally between the “Equipment Increment” and the “Product Increment.”

Vendor shall have responsibility to invoice Customer for all purchases under Exhibit A and to accept all proceeds paid by the Customer under Exhibit A and to remit to Med One all assigned proceeds hereunder, provided, however, that Vendor is not liable to Med One for amounts due from Customer that are not collected.

Notwithstanding the foregoing, however, Vendor shall, at such time as Vendor determines is appropriate, or at such time as Med One may reasonably request (i) make at least one collection telephone call (talk to Customer or leave a descriptive message) and (ii) send at least one collection demand letter to Customer if the Customer does not pay within invoice terms.

Vendor and Med One hereby agree as follows:

Vendor warrants Exhibit A is, to Vendor’s knowledge, genuine and enforceable in accordance with its terms and is the only agreement in effect with Customer with respect to the sale or use of the Equipment. Vendor has no knowledge of any facts which would impair the validity of Exhibit A or this Assignment, or the truth of any statement or warranty therein. The Vendor’s knowledge includes the fraudulent activities of Vendor’s employees and agents.

Vendor has not, before the execution and delivery of this Assignment, assigned or pledged Equipment Increment payments due or to become due under Exhibit A to anyone or any entity other than Med One, and Vendor has no knowledge that there are any attachments or other liens which might impair Vendor’s right to receive all Equipment Increment payments due and to become due under Exhibit A other than this Assignment; and, Vendor has full right, power and authority to assign Vendor’s right, title and interest in the proceeds received by or due to Vendor pertaining to the Equipment Increment to Med One.

Immediately prior to the execution of Exhibit A and delivery thereof by the Customer to Vendor, Vendor was vested with good and unencumbered title to the Equipment and had full right, power and authority to the same; the description of the Equipment in Exhibit A is accurate and complete in all material respects. Upon shipment of the Equipment to the Customer, assuming a first priority security interest has been created and perfected, Vendor transfers to Med One, good title to the Equipment, free and clear of all liens and encumbrances except

for the rights and interests of Customer as described in Exhibit A . Vendor’s warranties pertaining to the Equipment and the Customer to Vendor’s knowledge shall inure to the benefit of and be enforceable by both Med One and Customer, either jointly or severally. At Med One’s request, Vendor shall use its best commercial efforts to cause UCC-1 Financing Statements in form requested by Med One to be delivered to Med One.

Notwithstanding the Assignment made hereby, Vendor shall perform all of the obligations and duties imposed upon it by Exhibit A in accordance with the terms of Exhibit A . Med One shall have no obligations of the Vendor under Exhibit A . Subject to the terms of this Assignment, Vendor agrees to indemnify, defend, and hold Med One harmless from all claims and liability arising out of Vendor’s obligations under Exhibit A and the purchase, use, possession or operation of the Equipment.

If Customer and Vendor enter into an arrangement with respect to service and preventative maintenance for the Equipment, then Vendor warrants to Med One that Vendor and its successors and assigns will be responsible to provide such service and preventative maintenance function relating to the Equipment in accordance with the terms of such arrangement and will hold Med One harmless with respect to claims or liabilities in connection with such service and preventative maintenance.

Vendor will make all payments under this Assignment to Med One or to such other person and at such place, as Med One may direct, and will promptly deliver to Med One all notices and correspondence reasonably requested by Med One to exercise Med One’s rights under Exhibit A and this Assignment.

Vendor waives presentment and demand for payment, protest or notice of the non-payment and notice as to all agreements and related documents now and hereafter assigned or endorsed to Med One. Vendor subordinates to any rights Med One may now or hereafter have against Customer under Exhibit A , and any rights Vendor may now or hereafter have or acquire by reason of payment to Med One of any payments under Exhibit A or this Assignment. Notwithstanding anything to the contrary herein, Vendor shall pay to Med One the “Equipment Increment Per Item” for each product Customer actually acquires from Vendor under the Agreement and for which Customer actually pays. Further, in the event Customer makes only a partial payment (the “Partial Payment”) for Products supplied by Vendor under the Agreement, Vendor shall pay to Med One an amount equal to the Monthly Total Equipment Amortization referred to above each month during the term of Exhibit A , but only to the extent that such amounts are received by Vendor. Each month of the term shall stand on its own for purposes of this section.

If Vendor, or as applicable, Customer, materially breach any of their representations, warranties or obligations under this Assignment or Exhibit A that are not cured during the time period provided therein, Med One shall be entitled

to exercise all of its legal, contractual and equitable rights against Vendor, Customer and the Equipment, including, without limitation, the right to repossess the Equipment from Customer.

Vendor shall keep complete and accurate records of Customer’s compliance with the Agreement (i.e., quantities ordered, etc.) and payments to Vendor pursuant to the Agreement and Vendor shall provide Med One within fifteen (15) days of the end of each calendar month a written report showing the payments made by Customer to Vendor under the Agreement in such month. Upon Med One’s written request and not more than once in any calendar year, Vendor shall permit an independent certified public accounting firm of nationally recognized standing, selected by Med One and reasonably acceptable to Vendor, at Med One’s expense, to have access during normal business hours to such of Vendor’s records reasonably necessary to verify the accuracy of the above referenced reports. Notwithstanding, and in addition to the foregoing, in the event any payment owed by Customer to Vendor under the Agreement becomes more than sixty (60) days past due, Med One, prior to exercising its rights and remedies under this Assignment, and at its sole option and cost, shall have the right, upon reasonable notice and during regular business hours, to view Vendor’s records with respect to such delinquent Customer for the sole purpose of verifying the nature and extent of such Customer’s default. Med One shall have the right to all Service charges (defined in Schedule B # 3 of Vendor’s Terms and Conditions) pertaining to the Equipment Increment (as that term is defined herein).

10.

At such time that any payment by Customer to Vendor under the Agreement becomes more than sixty (60) days past due, Med One, at its sole option may exercise all of its rights and remedies under this Assignment with respect to the Equipment and the Customer, including repossessing the Equipment and filing a deficiency lawsuit against Customer. In such event, Vendor shall notify Customer of such assignment and Vendor shall execute any further documentation relating to such assignment that Med One reasonably deems necessary for such assignment and the exercise of Med One’s rights and remedies hereunder.

11.

Upon payment in full of the Total Equipment Amortization (set forth above) and so long as Customer is not in material default under the terms of Exhibit A , within thirty (30) days thereafter Med One will transfer, convey and assign to Customer all of its right, title and interest in and to those units of Equipment free and clear of all liens and encumbrances. Additionally, within such thirty-day period, Med One will file a UCC-3 or other forms for the purpose of releasing all liens on such fully-purchased Equipment.

12.

Vendor has to its knowledge complied and will comply with all requirements imposed upon it under the Agreement or under any law which may govern the Agreement.

13.

In the event of a breach of the terms of this Assignment, the breaching party shall pay all enforcement and collection costs of the non-breaching party, including reasonable attorneys’ fees and expenses.

14.

This Assignment shall be governed by the laws of the state of Utah.

15.

This Assignment is binding upon the successors and assigns of the parties and along with the exhibits hereto constitutes their entire agreement with respect to the matters discussed herein. Med One may assign its rights under this Assignment without the consent of Vendor. All oral representations or prior negotiations are deemed to have been merged into this Assignment. This Assignment may not be changed or modified except by a writing signed by all of the parties.

16.

Following termination or expiration of the Agreement as set forth in Exhibit A prior to Customer completing all of its payment obligations thereunder, in the event Med One desires to sell or transfer the Equipment to a third party, Med One shall first offer to sell the Equipment to Vendor on mutually acceptable terms, which shall never be greater than any amount remaining to be paid to Med One under an Exhibit A contract relating to such Equipment. If the parties cannot agree on acceptable terms after a period of 30 days, Med One may sell the Equipment to a third party, provided that the terms of such sale are no more favorable than the terms offered Vendor.

17.

Vendor will provide Med One with notice of, and Med One shall approve, any proposed material, good faith and commercially reasonable renegotiated changes to signed Exhibit A contracts.

18.

The terms of this Assignment shall be deemed confidential and shall not, except as set forth in paragraph 10 of this Assignment, be disclosed by Med One or Vendor to anyone except their employees and professional advisors with a need to know and Customer, unless required by law.

19.

All notices and other communications required or permitted herein shall be in writing and shall be delivered personally (which shall include delivery by courier or reputable delivery service) or sent by certified or registered mail, postage prepaid, return receipt requested or sent by facsimile transmission. Items delivered personally or by facsimile shall be deemed delivered on the date of delivery; items sent by certified or registered mail shall be deemed delivered three (3) days after mailing. The address of the parties for purposes of this provision are set forth in the Preamble of this Assignment.

20.

Vendor’s execution and delivery of this Assignment will not constitute a breach, default or event of default under any other written instrument, business organizational document or agreement to which Vendor is bound.

21.

At any time during the term of this Agreement, vendor may repurchase the Equipment and all rights granted in this agreement to Med One by paying to Med

One an amount equal to the unamortized portion of the Equipment Purchase Price as of that date.

22.

Notwithstanding anything else herein, Med One understands and agrees that the enforceability of Exhibit A is subject to standard legal exceptions (e.g., bankruptcy, actual authorization, public policy, specific enforcement, etc.) and that Vendor is not a guarantor of enforceability of Exhibit A or for collection of amounts due from a Customer. Med One agrees to complete its own financial and legal due diligence as it feels is required prior to acceptance of the assignment herein and assumes the risk of enforceability and collection of the amounts under Exhibit A . For purposes of this Agreement, Vendor’s knowledge is made based on the documents provided and understanding of the CFO of Vendor, without investigation or inquiry, and without any obligation to update Med One upon any change in such knowledge.

The date of this Assignment shall be the same date as the Effective Date of the Agreement.


MED ONE CAPITAL, INC.				MASIMO CORPORATION

By:				By:

Name:				Name:

Title:				Title:

Exhibit 10.34

***Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4)

and 230.406

AMENDED AND RESTATED

CROSS-LICENSING AGREEMENT

BETWEEN

MASIMO LABORATORIES

AND

MASIMO CORPORATION

EFFECTIVE JANUARY 1, 2007

EXHIBITS


Exhibit A		MASIMO SET ^{^®} Definition
Exhibit B		Trademarks, Legend, Logos
Exhibit C		Price for Products
Exhibit D		End-User License Agreement

AMENDED AND RESTATED CROSS-LICENSING AGREEMENT

THIS AMENDED AND RESTATED CROSS-LICENSING AGREEMENT (the “Agreement”), effective as of January 1, 2007 (the “Effective Date”), is an amendment and restatement of the CROSS-LICENSING AGREEMENT originally made and entered into as of the 2nd day of May, 1998 (as subsequently amended, the “Original Agreement”), by and between MASIMO LABORATORIES, a Delaware corporation (“LABS”), and MASIMO CORPORATION, a Delaware corporation (“MASIMO”), with reference to the following:

R E C I T A L S

A. MASIMO has developed a technology (“MASIMO Technology” as defined herein). MASIMO Technology incorporates circuitry and software which, among other things, acquires and detects signals generated by red and infrared LEDs, and which is designed to extract arterial oxygen saturation and pulse rate values from such signals.

B. Pursuant to the Original Agreement, as previously amended, LABS has an exclusive license to MASIMO Technology for certain applications.

C. Pursuant to the Original Agreement, as previously amended, LABS has a license to make, use and sell devices which incorporate MASIMO Technology subject to certain restrictions for distribution throughout the world.

D. Pursuant to the Original Agreement, as previously amended, MASIMO has an option to license to certain technology developed by LABS for use in blood glucose monitoring and total hemoglobin/hematocrit applications, and MASIMO desires to have an option to license certain technology developed by LABS for use in certain other Non-Vital Signs Monitoring in the professional caregiver market.

E. MASIMO has acquired substantial Know-How (as defined below) in extracting signals from signals contaminated by noise.

F. MASIMO has acquired and expects to continue to acquire a reputation for excellence, and its trademark has and will continue to acquire valuable goodwill.

G. Labs has acquired substantial Know-How (as defined below) in extracting signals from interfering signals.

H. Labs has acquired and expects to acquire a reputation for excellence.

I. MASIMO and LABS entered into three amendments of the Original Agreement relating to increasing funding to LABS and extending the period for execution of the option to license certain technology developed by LABS.

J. MASIMO and LABS entered into a Fourth Amendment to the Original Agreement to enable MASIMO to have its option to blood glucose monitoring and total hemoglobin/hematocrit applications be separately exercisable and to obtain a license to carboxyhemoglobin and methemoglobin, which Fourth Amendment superseded all earlier amendments to the Agreement.

K. The Parties desire to enter into this Agreement to amend and restate the Original Agreement and the terms of the Fourth Amendment, to include additional terms, and to have this Agreement supersede the Original Agreement and the Fourth Amendment.

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in the Original Agreement and hereinafter set forth, LABS and MASIMO hereby agree as follows:

1. DEFINITIONS . As used in this Agreement, the following terms, whether used in the singular or the plural shall have the following meaning:

1.1. Accessory means cables or any other accessories manufactured by a Party for use with any of the Products.

1.2. Affiliate means, with respect to each Party, any legal entity that is, directly or indirectly, controlling, controlled by or under common control with the Party. For purposes of this definition, a Party shall be deemed to control another entity if it owns or controls, directly or indirectly, more than fifty percent (50%) of the voting equity of the other entity (or other comparable ownership interest for an entity other than a corporation).

1.3. Average Selling Price means the total amount, in dollars (based upon the first sale to arms-length customers), for a device, sensor, accessory or other product divided by the number of devices, sensors, accessories or other products sold during the relevant period, or quarterly if not otherwise stated, on a product-by-product basis.

1.4. Change in Control means, with respect to a Party, the occurrence of any of the following: (i) the direct or indirect sale, transfer, conveyance or other disposition (including by merger, consolidation, operation of law or otherwise), in one or a series of related transactions, of all or substantially all of the properties or assets of such Party to a non-Affiliate third party; (ii) any non-Affiliate third party becomes the ultimate beneficial owner, directly or indirectly, of 50% or more of the voting power of the voting stock of such Party; (iii) Joe E. Kiani is not the CEO of either company; or (iv) such Party consolidates with, or merges with or into, any third party, or any third party consolidates with, or merges with or into such entity.

1.5. Distributor means, as applicable, (i) a party that markets LABS Licensed Devices or Stand Alone Licensed Devices to End-Users on behalf of LABS, (ii) a customer of LABS that buys LABS Licensed Devices or Stand Alone Licensed Devices from LABS, private labels such devices, and markets such LABS Licensed Devices or Stand Alone Licensed Devices to End-Users, (iii) a party that markets MASIMO Licensed Devices to End-Users on behalf of MASIMO, or (iv) a customer of MASIMO that buys MASIMO Licensed Devices from MASIMO, private labels such devices, and markets such MASIMO Licensed Devices to End-Users.

1.6. Enabled means that a parameter is actually activated such that it measures the parameter when an appropriate sensor is attached.

1.7. End User is, as applicable, a direct user of LABS Licensed Devices, Stand Alone Licensed Devices or MASIMO Licensed Devices.

1.8. Improvement means any invention, adaptation, modification or change, except for those that are purely aesthetic as trade dress.

1.9. LABS Combo Device means a LABS’ device that incorporates Masimo Technology for monitoring Non-Vital Signs Parameters and Vital Signs Parameters.

1.10. LABS Confidential Information means confidential information and proprietary material of LABS, including, but not limited to, (i) the LABS Technology, (ii) any Improvements, patents, copyrights, trade secrets, and any other intellectual property and proprietary rights owned by LABS in accordance with Article 11, and (iii) the following types of information and other information of a similar nature: ideas, concepts, materials, techniques, models, data, designs, documentation, flow charts, budgets, projections, forecasts, marketing and development plans, communication protocols and testing procedures.

1.11. LABS Licensed Device means a LABS’ device (finished product, chipset or board containing circuitry or software, software, or any combination) that incorporates Masimo Technology for monitoring Non-Vital Signs Parameters or a LABS Combo Device.

1.12. LABS Market means any product market in which the product is intended to be used by a patient or pharmacist rather than by a professional medical caregiver, regardless of the particular location of the sale. For example, the LABS Market includes sales to doctors, hospitals, EMS professionals or otherwise, provided the product is intended to be recommended, or resold, for use by the patient or pharmacist.

1.13. LABS Technology means any of the following Rainbow Technology rights (i) owned by LABS as of the Effective Date, or (ii) developed or conceived by LABS during the Term and owned by LABS in accordance with Article 11: Technical information, inventions, concepts, products, components, trade secrets, know-how, techniques, designs, processes, communications protocols, software, Improvements, whether patentable or not, patents, patent applications, including any patents issuing thereon and any and all divisions, continuations and continuations-in-part thereof, and any and all reissues and reexaminations of any such patents, copyrights, copyright registrations and applications, and all other intellectual property rights. LABS Technology excludes (i) any technology owned by a third party and licensed to LABS, and (ii) the MASIMO Technology. Notwithstanding Section 11.3, Labs Technology also includes the glucose measurement technology acquired from Argose.

1.14. Current Licensed Device means a device that incorporates Rainbow Technology for measurement of carbon monoxide (HbCO), methemoglobin (HbMet), total hemoglobin and/or fractional arterial oxygen saturation (whether Enabled or not). A Current Licensed Device includes boards or software for integration into devices of third parties, such as original equipment manufacturers.

1.15. MASIMO Board means a circuit board or chip set manufactured or distributed by or for MASIMO, that incorporates MASIMO Technology, and/or Rainbow Technology and/or Optioned Technology.

1.16. MASIMO Confidential Information means confidential information and proprietary material of MASIMO, including, but not limited to, (i) the MASIMO Technology,

(ii) any Improvements, patents, copyrights, trade secrets, and any other intellectual property and proprietary rights owned by MASIMO in accordance with Article 11, (iii) the MASIMO Software, and (iv) the following types of information and other information of a similar nature: ideas, concepts, materials, techniques, models, data, designs, documentation, flow charts, budgets, projections, forecasts, marketing and development plans, communication protocols, and testing procedures.

1.17. MASIMO Licensed Device means a Current Licensed Device or an Optioned Technology Device.

1.18. MASIMO Licensed Trademarks means the MASIMO SET, Rainbow, and other Rainbow related product designation and word mark(s) set forth on Exhibit B.1.

1.19. MASIMO Market means any product market where the product is intended to be used by a professional caregiver, including but not limited to hospital caregivers, surgicenter caregivers, paramedic vehicles caregivers, doctor’s offices caregivers, EMS facilities caregivers and vehicles where emergency medical services are provided.

1.20. MASIMO Sensor means a sensor manufactured or distributed by or for MASIMO for use in SpO ₂ Measurement and/or Non-Vital Signs Monitoring.

1.21. MASIMO Product Design means all product design rights other than those that are purely aesthetic, including industrial designs, tooling, process and manufacturing designs, all for products that include Masimo SET.

1.22. MASIMO SET has the meaning set forth in Exhibit A.

1.23. MASIMO Software means any and all computer/instrument software and/or firmware owned by MASIMO that is used or useful in connection with MASIMO Technology for use in Vital Signs Monitoring or Non-Vital Signs Monitoring, including any and all Improvements thereto, all in source code and object code format, and all written documentation relating to such software.

1.24. MASIMO Technology means any of the following MASIMO SET, Masimo Product Design rights, or Masimo Sensor rights, as initially licensed to LABS on May 2, 1998, as the same has been Improved by MASIMO since that time, (i) owned by MASIMO as of the Effective Date, or (ii) developed or , conceived by MASIMO during the Term and owned by MASIMO in accordance with Article 11: technical information, inventions, concepts, products, components, trade secrets, know-how, techniques, designs, processes, communications protocols, whether patentable or not, patent applications, copyright applications, patents, copyrights and all other intellectual property. MASIMO Technology excludes (i) any technology owned by a third party and licensed to MASIMO, and (ii) the Rainbow Technology.

1.25. Net Selling Price of a Product means the total sales revenue for such Product (including any amounts for rental or leasing of such product), excluding charges for returns, rebates, credits, post-sale adjustments, including adjustments for doubtful accounts, outbound prepaid or allowed transportation charges, sales taxes, tariffs or duties directly imposed with reference to particular sales or similar items.

1.26. Non-Vital Signs Monitoring means non-invasive measurement Non-Vital-Signs Parameters using Masimo Technology.

1.27. Non-Vital-Signs Parameter means any noninvasive or minimally invasive measurement of body fluid constituents other than Vital Signs, including, but not limited to, blood glucose, fractional arterial oxygen saturation (defined as the correction to SpO2 by eliminating one or more dysfunctional hemoglobins (i.e., CO, methemoglobin and/or […***…]), total hemoglobin, hematocrit, carbon monoxide (HbCO), methemoglobin (HbMet), […***…], bilirubin, […***…].

1.28. Optioned Technology means LABS Technology developed using MASIMO Technology and Improvements owned by Labs for use in Non-Vital Signs Monitoring other than monitoring of carbon monoxide (HbCO), methemoglobin (HbMet), total hemoglobin and/or fractional arterial oxygen saturation.

1.29. Optioned Technology Device means a device that incorporates Rainbow Technology for measurement of any Non-Vital Signs Parameter (whether Enabled or not) for which MASIMO has exercised one or more of the options under Section 4.1. An Optioned Technology Device includes boards or software for integration into devices of third parties, such as original equipment manufacturers (OEM).

1.30. Parameter means a Vital Signs Parameter or a Non-Vital-Signs Parameter, as applicable.

1.31. Party means LABS or MASIMO; Parties means LABS and MASIMO.

1.32. Products means (i) in the case of MASIMO, MASIMO Boards, MASIMO Sensors and Accessories, and (ii) in the case of LABS, LABS Licensed Devices and Stand Alone Licensed Devices.

1.33. Rainbow Sensor means a sensor incorporating Rainbow Technology for measuring Non-Vital-Signs Parameters and possibly one or more Vital Signs using Masimo Technology.

1.34. Rainbow Technology means LABS technology for Non-Vital Signs Monitoring using Masimo Technology and at least 6 wavelengths.

1.35. SpO ₂ Measurement means noninvasive measurement of arterial oxygen saturation (accounting for at least Hb and HbO ₂ ), fractional saturation, plethysmographic waveforms, and/or pulse rate from neonate, pediatric and adult subjects.

1.36. Stand Alone Licensed Devices means LABS’ completed patient monitor devices that are not capable of Non-Vital Signs Monitoring but that incorporate a MASIMO Board as the exclusive method to obtain SpO2 Measurement.

1.37. Standard Cost, or Cost, means the cost for direct materials and labor, overhead and administration, in accordance with generally accepted accounting principles.

1.38. Vital Signs Monitoring means measurement and/or monitoring of Vital Signs Parameters.

*Confidential Treatment Requested

1.39. Vital Signs Parameters means SpO ₂ , peripheral venous oxygen saturation, mixed venous oxygen saturation, fetal oximetry, Sudden Infant Death Syndrome (“SIDS”), ECG, blood pressure (non-invasive blood pressure, invasive blood pressure and continuous non-invasive blood pressure), temperature, respiration rate, CO ₂ , SvO ₂ , pulse rate, respiration rate, cardiac output, EEG, perfusion index (“PI”), depth of anesthesia, cerebral oximetry, tissue oximetry and/or EMG, and associated features derived from these parameters, such as 3-D Alarms, Pleth Variability Index (“PVI”), and other features.

2. LICENSE GRANTS

2.1. Licenses Granted to LABS .

2.1.1. MASIMO grants to LABS an exclusive (including of MASIMO, subject to Section 2.2.1), royalty-bearing, perpetual, worldwide license (i) to use the MASIMO Technology to develop Non-Vital Signs Monitoring and to develop LABS Licensed Devices, (ii) to make, have made, use, offer to sell and sell LABS Licensed Devices , including on an OEM basis, (iii) to sublicense MASIMO Technology for the development of or for use in Non-Vital Signs Monitoring and LABS Licensed Devices, and (iv) to sublicense the use, manufacture and sale of LABS Licensed Devices.

2.1.2. MASIMO further grants to LABS an exclusive, perpetual, worldwide license (i) to copy, modify, and make derivative works of the MASIMO Software for incorporation into LABS Licensed Devices, (ii) to distribute the MASIMO Software in conjunction with a transfer of a LABS Licensed Device to End-Users and Distributors, and (iii) to sublicense the right to copy and modify the MASIMO Software for incorporation into LABS Licensed Devices.

2.1.3. MASIMO further grants to LABS the non-exclusive right to incorporate MASIMO Boards into LABS Licensed Devices and Stand Alone Licensed Devices and to make, have made, use and sell the same (including, but not limited to, in a private label contract which does not include LABS name, but which includes MASIMO’s name as provided herein), in the case of Stand Alone Licensed Devices, outside the MASIMO Market. LABS shall also have the right to sublicense to one Affiliate only its rights under this Section, provided that, (i) LABS shall procure that such Affiliate complies with the terms and conditions of this Agreement, and (ii) LABS and such Affiliate shall be jointly and severally liable for any non-performance or breach by such Affiliate.

2.1.4. Masimo further grants the option, for distribution inside the Labs Market, to Labs to license or obtain any and all additional Vital Signs parameters that MASIMO develops during the course of this Agreement on terms no less favorable than any other third party non-exclusive licensee. In the event that Masimo does not have a license with any other third party, then Masimo agrees to negotiate for a license for such parameters with LABS in good faith. This option does not apply if Masimo licenses the additional Vital Sign Parameter on an exclusive basis to a third party prior to Labs exercising this option.

2.1.5. LABS agrees to distribute and to have its sublicensees distribute (i) Stand Alone Licensed Devices and (ii) LABS Licensed Devices in conjunction with and by providing the end-user with an end-user agreement materially equivalent to the “License Agreement” that is attached hereto as Exhibit D.

2.1.6. LABS’ license under this Agreement does not include the right to sell MASIMO Boards or MASIMO Sensors on an OEM basis except in connection with an OEM sale for integration in LABS Licensed Devices, or in connection with a sublicense of Stand Alone Licensed Devices.

2.2. Licenses to MASIMO .

2.2.1. License Back to Masimo . LABS grants back to MASIMO a non-exclusive royalty-bearing, worldwide license (i) to use the MASIMO Technology to develop, Non-Vital Signs Monitoring, (ii) to make, have made, use, offer to sell and sell products incorporating any such developed Non Vital Signs Monitoring for distribution solely outside the LABS Market. Labs consents to any agreement entered by Masimo prior to the date of this Agreement, relating to Non-Vital Signs products.

2.2.2. License to HbCO, HbMet, total hemoglobin and fractional arterial oxygen saturation . LABS grants to MASIMO a license to make, have made, use, offer to sell and sell Current Licensed Devices only (i) for distribution outside the LABS Market, and (ii) to LABS. Such license is exclusive (on a parameter-by-parameter basis) in the MASIMO Market until the later of (A) 20 years from the Effective Date or (B) expiration of the last to expire of any LABS patents covering the applicable parameter. Such license shall include the right to sell Current Licensed Devices on an OEM basis.

2.2.3. License to Rainbow Sensors . LABS further grants to MASIMO a license to make, have made, use, offer to sell and sell Rainbow Sensors only (i) for distribution outside the LABS Market, and (ii) for sale to LABS. Such license is exclusive in the MASIMO Market until the later of (A) 20 years from the Effective Date, or (B) expiration of the last to expire of any LABS patents covering the Rainbow Sensors.

2.3. Trademarks, Legends and Logos .

2.3.1. No Implied License . Each of LABS and MASIMO agrees to include the following legend on the exterior of or in manuals or other documentation provided with products that contain technology licensed from the other Party which it sells directly.

NO IMPLIED LICENSE

Possession or purchase of this device does not convey any express or implied license to use the device with replacement parts which would, alone, or in combination with this device, fall within the scope of one or more of the patents relating to this device.

A sample label is shown in Exhibit B. LABS agrees to use reasonable commercial efforts to cause all sublicensees to include this or a similar legend on devices containing MASIMO Technology or in the use manuals or other documentation shipped with such instruments.

2.3.2. Trademark License Grant by MASIMO . MASIMO hereby grants to LABS a nonexclusive license, including the right to grant sublicenses, to use the MASIMO Licensed Trademarks in connection with the Labs Licensed Devices and Stand Alone Licensed Devices, and in connection with the design, manufacture, distribution, advertisement, promotion, sale and offering for sale of such devices; provided,

however, that such trademarks are used to indicate the source of incorporated technology and do not indicate that MASIMO is the manufacturer of any such devices.

2.3.3. Quality Control—Devices . LABS agrees that any products bearing any Masimo Licensed Trademark shall be of a high standard of quality, so as to protect and enhance the goodwill pertaining to the Licensed Trademarks. Masimo has the right to inspect the manufacturing and distribution points of LABS for products bearing Masimo Licensed Trademarks, at any reasonable time, to ensure the ongoing quality of any product bearing that Party’s Licensed Trademarks. Should Masimo at any time determine that the quality of any product bearing a Masimo Licensed Trademark does not adhere to these quality standards, Masimo will provide written detailed notice to LABS. LABS shall have three months from such notice to bring the quality of such product up to standard or to cease any further use of the Masimo Licensed Trademark in connection with the promotion or sale of such device or product until MASIMO has indicated that it is satisfied that the deficiencies in quality of the particular product has been corrected. For any sublicenses granted under the Masimo Licensed Trademarks, LABS agrees to use reasonable commercial efforts to coordinate quality control consistent with this Section over the manufacture, advertisement, promotion and sale of any products offered by the sublicensee using the MASIMO Licensed Trademarks.

2.3.4. LABS Trademark Marking . LABS agrees that it shall use the MASIMO SET product designation set forth in Exhibit B (i) on all LABS Combo Devices that are marketed directly by LABS, and (ii) all Stand Alone Licensed Devices that are marketed directly by LABS, in each case, on a front panel site associated with the Vital Signs Monitoring. Prior to any such use, LABS shall obtain consent from MASIMO as to the use and location of the Licensed Trademark, which consent shall not be unreasonably withheld. LABS shall use reasonable efforts to cause all sublicensees and Distributors to include such MASIMO Product Designation in accordance with this provision. Labs may, but is not required, to mark products that include Non-Vital Signs Monitoring with any of the Rainbow associated logos (Rainbow, Rainbow SET, SpCO, …), at LABS discretion.

2.3.5. Labs Name. LABS agrees to change its name to eliminate the term “Masimo” at such time that LABS begins selling any product.

2.3.6. Advertising . All advertising directly by LABS for LABS Combo Devices or Stand Alone Licensed Devices shall include one or more of the MASIMO SET Licensed Trademarks. LABS agrees to use reasonable efforts to have sublicensees and Distributors comply with the provisions of this section.

2.3.7. No Other Use . Neither Party shall use the trademarks of the other Party in direct combination with other trade names, trademarks or symbols of such Party or its sublicensees or Distributors.

2.3.8. No Damaging Use . Each Party agrees not to use the trademarks of the other Party in any way which might endanger the owners’ rights in or ownership of the trademarks.

2.3.9. Trademark Expenses . The expense of obtaining and maintaining Masimo Licensed Trademarks registrations shall be borne by MASIMO.

2.3.10. Trademark Rights on Change in Control . In the event of a Change in Control of MASIMO, if the acquiring or resulting entity or party permanently ceases to use MASIMO as a company name and as trademark, all rights to the MASIMO trademark shall be and are hereby assigned to LABS including all goodwill associated with the trademark. For the avoidance of doubt, the purpose of this paragraph is to assign the MASIMO mark if MASIMO is no longer using it, therefore so long as the acquiring or resulting entity or party is using MASIMO as either a company name or as a trademark, no assignment under this Section shall apply.

2.3.11. Patent Marking . Each Party agrees to mark products sold under license from the other Party in accordance with the Statutes of the United States relating to marking of patented articles. Each Party agrees to use reasonable efforts to cause its sublicensees and Distributors to comply with this provision.

2.3.12. Maintenance of Licensed Patents . Each Party is responsible for determining whether, where, and on what to pursue patent protection for its technology. Either Party (the “Licensor Party”) may discontinue prosecution or maintenance, abandon, or dedicate to the public any of patents and patent applications included in the MASIMO Technology or LABS Technology, as applicable, owned by such Party and in its sole discretion, provided, however, that the Licensor Party shall take reasonable efforts to provide the other Party (the “Licensee Party”) with at least 15 days notice prior to abandonment or other dedication to the public of any patent or patent application in the United States or Western Europe. Upon such notice, the Licensee Party shall have 7 days to notify the Licensor Party, in its sole discretion, that such licensed patent should not be abandoned or otherwise dedicated to the public. In such event, the Licensee Party shall be responsible for payment of any costs of maintaining such licensed patents or controlling prosecution at its expense of any licensed patent applications. While there is a single CEO, no written notice to the other company is required. In addition, failure to provide the notice in this paragraph is not a material breach of this Agreement.

3. RESEARCH AND DEVELOPMENT/LICENSE FEES

3.1. Previous Research & Development . The Parties acknowledge that MASIMO has funded research and development conducted by LABS related to, among other things, methemoglobin, fractional arterial oxygen saturation, blood glucose, and/or total hemoglobin measurement in a cumulative amount of seven -million -five -hundred -thousand dollars ($7,500,000), and that in consideration of such payment, MASIMO has been granted the options in this Agreement.

3.2. License Fees for Rainbow Technology . MASIMO agrees to pay a license fee of five million dollars ($5,000,000) for the license to carbon monoxide (HbCO), methemoglobin (HbMet), and fractional arterial oxygen saturation granted and two million five hundred thousand dollars ($2,500,000) for the license to total hemoglobin, under Section 2.2.2. MASIMO acknowledges that it has exercised its option to license total hemoglobin and has licensed fractional arterial oxygen saturation. LABS agrees to use such license fee primarily for the development of Non-Vital Signs Monitoring applications. Such license fee shall be payable in monthly payments, as requested by LABS in accordance with the following sentence. LABS will request payment of the license fee in an amount corresponding to such development costs no more often than monthly, and MASIMO shall pay LABS the license fee in an amount corresponding to such

development costs within 30 days following receipt of such request for reimbursement. At LABS’ option, some or all of the license fee can be paid in the form of contracted development work done by MASIMO on LABS’ behalf pursuant to written request by LABS. MASIMO understands that LABS has no proof of concept for any Non-Vital-Signs Parameters other than those delivered as of this date and makes no representation that proof of concept will ever be achieved for any other Parameter. Except as provided in Section 4.3, upon payment of the license fee described above, no further monthly payment shall be due under this Section. Notwithstanding the above or anything else contained herein to the contrary, LABS may request that any licensing, royalty, option or other fees due to LABS be paid on a quarterly basis. As of December 31, 2006, MASIMO has paid approximately $3,600,000 of the $7,500,000 described above.

4. MASIMO OPTION

4.1. Option Grant . LABS grants to Masimo an option to license Optioned Technology as further set forth in this Article 4 (the “Option”).

4.2. Optioned Technology . The “Option” shall be exercisable separately for each parameter included in the Optioned Technology within 180 days of delivery of written notice by LABS to MASIMO stating that proof of feasibility has been achieved separately for such parameter, which notice will include written and reasonably support of such feasibility. The option period shall be extended if MASIMO provides written notice disputing proof of feasibility and during the time period thereafter, during which the parties will work in good faith to agree on whether or not proof of feasibility has been achieved. If the parties can not agree within 90 days, the matter will be submitted to an independent three-member panel (the “Panel”). Each Party shall select one member of the Panel, and the two members shall select a third member. No Panel member may be an employee, officer, director, or owner of any shares of either Party, or related to any employee, officer, director or owner of any shares of either Party, or otherwise affiliated with either Party such that such affiliation would tend to influence such person’s ability to independently evaluate this issue. The determination of the Panel shall be binding upon the Parties.

4.3. License Terms . Upon exercise of the Option, LABS hereby grants to MASIMO a license to make, have made, use, offer to sell and sell applicable Optioned Technology Devices for distribution only (i) outside the Labs Market and (ii) to Labs. The foregoing license shall be sublicensable to any MASIMO Affiliate. Such license shall be exclusive in the Masimo Market until the later of (i) 20 years from the exercise date, or (ii) expiration of the last to expire of any LABS patents covering the Optioned Technology at issue. Such license shall include the right to sell applicable Optioned Technology Devices on an OEM basis. However, Masimo does not have the right to provide Licensed Devices or Optioned Technology to any OEM for sale into Labs Market without Labs’ approval, which will be in Labs sole discretion.

4.4. Exercise of Option . In order to exercise the Option for each Optioned Technology, MASIMO agrees to pay LABS for each application for which the option is exercised as follows (it being understood that the option rights to total hemoglobin have previously been exercised):

(a) $2,500,000 for Glucose

(b) $500,000 for any other Non-Vital Sign Parameter. However, if a Non-Vital Sign Parameter is merely a combination of already licensed Non-Vital-Sign Parameters, such will not require this additional exercise fee.

Such payments will be made in monthly installments in accordance with and subject to Section 3.2.

4.5. Certain Exceptions . The Parties understand that the exclusivity in the licenses to MASIMO under this Article will in no way preclude LABS from conducting testing and studies in the MASIMO or LABS Market relating to the Optioned Technology and making inadvertent sales to the MASIMO market. Notwithstanding the foregoing, except as expressly provided herein, neither LABS nor MASIMO shall knowingly sell any Products in the other Party’s Market.

4.6. Payment on Change in Control . Upon any Change in Control of MASIMO, the option for glucose shall be automatically exercised. Upon such Change in Control, MASIMO agrees to pay LABS the license fee for glucose immediately.

4.7. Termination of Exclusivity .

4.7.1. Reasonable Efforts . Subject to Section 4.7.2, the exclusivity of Section 2.2 and 4.2 and 4.3 shall terminate, as applicable, if MASIMO is not exercising commercially reasonable efforts to develop or marketing a device incorporating the applicable Optioned Technology or Rainbow Technology on a parameter-by-parameter basis within one (1) year of the grant of any such license.

4.7.2. Notification and Cure . LABS must first notify MASIMO of its intent to cancel the exclusivity under Section 4.7.1. MASIMO shall have ninety (90) days to cure its failure to take commercially reasonable efforts to develop or market such devices. If MASIMO has not cured its failure within such period, LABS may terminate the exclusivity on written notice to MASIMO of such termination. In the event that LABS and MASIMO disagree as to whether MASIMO is reasonably marketing such devices, the Party shall submit the disagreement to an independent three-member panel (the “Panel”). Each Party shall select one member of the Panel, and the two members shall select a third member. No Panel member may be an employee, officer, director, or owner of any shares of either Party, or related to any employee, officer, director or owner of any shares of either Party, or otherwise affiliated with either Party such that such affiliation would tend to influence such person’s ability to independently evaluate this issue. The determination of the Panel shall be binding upon the Parties, and the cost of the proceedings are born by the losing party.

4.8. Delivery of MASIMO Systems to LABS . MASIMO agrees to make available to LABS upon request, one (1) sample of each MASIMO Licensed Device. LABS will have the right to test this device and to approve the functionality of LABS Technology in such device. Such approval will not be unreasonably withheld. After such testing, the device may remain with LABS, at LABS’ option, for further technical assistance and as a demonstration unit as long as this Agreement is in effect.

5. ROYALTIES

5.1. Royalties to MASIMO For Licensed Devices . Without limiting Section 5.2, the Parties acknowledge that no royalties shall be payable to MASIMO for the distribution or sale of LABS Licensed Devices or Stand Alone Licensed Devices.

5.2. Royalties to MASIMO for Integrated Consumable . LABS shall pay to MASIMO royalties in the amount of ten percent (10%) of SpO2 sensor or accessory value of LABS’ Average Selling Price of sensors or accessories that measure Vital Signs Parameters for use in LABS Licensed Devices or Stand Alone Devices. The SpO2 sensor value of sensors that are capable of Non-Vital Signs Monitoring, shall be LABS average selling price for its sales of comparable sensors that only measure SpO2. At the later of (A) 20 years from the Effective Date or (B) expiration of the last to expire of any Masimo patents covering Masimo Technology, the royalty shall be reduced by 2%.

5.3. [Intentionally Omitted.]

5.4. Royalty on Rainbow Technology . MASIMO will pay to LABS royalties in the amount of ten percent (10%) of the Rainbow Royalty Base (as defined below) for MASIMO Licensed Devices, and sensors and accessories for measuring Non-Vital-Signs Parameters in MASIMO Licensed Devices in accordance with the following.

(a) Except for the handheld products, the “Rainbow Royalty Base” will include that portion of (i) a MASIMO Licensed Device Enabled to measure a Non-Vital-Signs Parameter, and (ii) sensors and accessories for measuring Non-Vital-Signs Parameters in MASIMO Licensed Devices. In other words, if a Masimo Licensed Device, sensor or accessory is Enabled to measure more than Vital Signs Parameters, then the difference between that standard product (the one that measures only Vital Signs Parameters) and the price charged for a similar type product that can also measure the Non-Vital Signs Parameter/s is the amount that will be multiplied by the 10% royalty. The differential is calculated base on the ASP on a region by region and product by product basis.

(b) For handheld products, such as Rad-57, the entire price of the product is multiplied by the 10% royalty.

(c) For multiparameter devices (i.e., a device that uses more than one sensor at a time), the Royalty Base will be (i) the Net Selling Price of the device, times (ii) the number of Non-Vital-Signs Parameter that the device is Enabled to measure, divided by (iii) the total number of Parameters that the device is Enabled to measure (excluding insignificant parameters such as temperature, PI, PVI, and Pulse Rate).

(d) Hospital Contracts . MASIMO will pay a 10% royalty on the fraction of all revenue from the contract signed after January 1, 2009 for the placement of Masimo Licensed Devices (for a committed sensor contract) in relation to the fraction of Enabled rainbow devices compared Masimo Licensed Devices with only Vital Signs Parameters Enabled as follows:

(10%)(Total revenue invoiced under contract on running basis)(# Masimo Licensed Devices on average with Non-Vital Signs Parameters Enabled.

(# Masimo Licensed Devices on average with Non-Vital Signs Parameters enabled + # Masimo Licensed Devices on average with only Vital Signs Parameters enabled).

(e) Non-Vital Signs Parameter upgrades and sensors sold separately or in addition by Masimo shall be considered a separate revenue source for which a 10% royalty shall apply. Royalties shall not be paid up front but shall be due after payments are made under the contract, on a quarterly basis, 30 days after each quarter end.

(f) At the later of (A) 20 years from the Effective Date or (B) expiration of the last to expire of any LABS patents covering the applicable parameter, the royalty rate shall reduce by 2%.

(g) Notwithstanding the foregoing, beginning on a Change in Control, the royalty due to LABS from MASIMO on a particular product will not be less than the following minimum amount:

$0 per completed MASIMO Licensed Device

$0 on OEM Boards

$2 per disposable sensor capable of CO and/or MET

$3 per disposable sensor that includes hemoglobin capability

$25 per reusable sensor capable of CO and/or MET

$50 per reusable sensor that includes hemoglobin capability

$10 per cable if it permits a Non-Vital Sign Parameter

$50 per Non-Vital Signs Parameter to OEM for each Enabled parameter, $100 to end users for each parameter when Enabled

Royalties are payable within 30 days of the close of each quarter.

5.5. Minimum Royalties . MASIMO agrees to the aggregated minimum yearly royalties specified below (whether based on actual sales or in make-up payments by MASIMO) for the license to Rainbow Technology and/or the license back for Masimo Technology for use in Non-Vital Signs Monitoring developed by LABS or by MASIMO. Such royalties shall begin upon the first commercial sale of any MASIMO Licensed Device. Subsequent year payments are due within thirty (30) days after the end of each year. Failure to pay the minimum royalties by January 1, 2015 shall be a breach of this Agreement, subject to the notice and cure provisions herein, and if such cure is not provided, shall thereafter automatically convert MASIMO’s license to a non-exclusive license as the exclusive remedy. After January 1, 2015, failure by MASIMO to pay minimum royalties shall be considered a material breach of this Agreement. The minimum royalties shall be an advance on that year’s running royalty obligations, but

shall not carry forward from year to year. While the CEO of Labs and Masimo are the same, the Minimum Royalties are payable to Labs as needed by Labs, with any amounts not paid in a given year carried forward. Minimum royalties are eliminated after the license becomes non-exclusive by the terms of this Agreement.


2007	2008	2009	2010 and beyond
$3.15 M	$3.5 M	$4 M	$5M

5.6. Notwithstanding Section 5.5, on a Change in Control of MASIMO, the acquiring entity shall pay the minimum royalties in accordance with the tables below instead of the table in Section 5.5 (with no maximum ceiling for aggregated Non-Vital-Signs Parameters). Minimum royalties are eliminated after the license becomes non-exclusive by the terms of this Agreement.

Aggregated Minimum Royalty for CO, Met, Fractional O2, Hb and/or Glucose


2007	2008	2009	2010 and beyond
$5 M	$7 M	$10 M	$15M

Additional Minimum Royalty Per Rainbow Parameter beyond CO, Met, Fractional O2, Hb and Glucose


Year 1*	Year 2	Year 3	Year 4	Year 5 & Beyond
$75,000	$250,000	$500,000	$1 M	$2M

*	Year 1 refers to the first year of commercial release of such parameter.

5.7. Royalties on Other Markets . LABS will pay to MASIMO a royalty of 10% on each product that includes Vital Signs Monitoring that is sold outside of both the LABS Market and the MASIMO Market, unless MASIMO licenses a third party the right to market outside of both the MASIMO Market and LABS Market, at which time the royalty is reduced to 3%. Similarly, MASIMO will pay LABS a royalty of 10% on each product that includes Non-Vital Signs Monitoring that is sold outside of both the LABS Market and the

MASIMO Market, unless LABS licenses a third party the right to market outside of both the MASIMO Market and LABS Market, at which time the royalty is reduced to 3%.

5.8. Quarterly Accounting . Each Party shall provide the other Party with a quarterly accounting of total Product shipments upon which a royalty is payable to the other Party, along with an accounting of the Net Selling Price for such products, if applicable.

5.9. Audit Rights . Each Party shall have the right to verify, at the requesting Party’s expense, and not more frequently than once per year and upon not less than ten (10) business days prior written notice to the other Party, the accuracy of the accounting reports provided by the other Party hereunder, through inspection of the other Party’s pertinent records and books of accounts maintained in the ordinary course of business. Such audit shall be conducted by a certified public accountant (the “CPA”) chosen by the requesting Party in its reasonable discretion, and which CPA is reasonably acceptable to the Party being audited. The requesting Party shall pay all costs, expenses and fees of the CPA unless the audited Party has understated royalties or other payments owing to the requesting Party by more than five percent (5%) during the period audited, in which event the CPA’s costs, fees and expenses shall be paid by the audited Party.

6. LICENSE FOR OTHER USES

6.1. MASIMO Technology . In the event LABS desires to use MASIMO Technology to develop any application not included within Vital Signs Monitoring and Non-Vital Signs Monitoring, LABS is non-exclusively licensed to use MASIMO Technology to develop such application. All Improvements in connection with the foregoing made during the period that the CEOs of LABS and MASIMO are the same, shall be owned by MASIMO. All Improvements in connection with the foregoing made during the period that the CEOs of LABS and MASIMO are different, shall be owned by the Party that made such Improvements.

6.2. LABS Technology . In the event MASIMO desires to use LABS Technology to develop any application not included within Vital Signs Monitoring and Non-Vital Signs Monitoring, MASIMO is non-exclusively licensed to use LABS Technology to develop such application. All Improvements in connection with the foregoing made during the period that the CEOs of LABS and MASIMO are the same, shall be owned by LABS. All Improvements in connection with the foregoing made during the period that the CEOs of LABS and MASIMO are different, shall be owned by the Party that made such Improvements.

7. PURCHASE AND SALE OF PRODUCTS

7.1. Products Available for Purchase . The provisions of this Article 7 shall apply to each Party to the extent such Party (the “Supplying Party”) is supplying Products to the other Party (the “Ordering Party”). Each Supplying Party will sell the Products listed in Exhibit C to the Ordering Party in accordance with this Article 7. Upon mutual agreement of the Parties, the Parties shall amend Exhibit C to include any additional Products available for supply by either Party to the other Party under this Agreement, including applicable pricing, minimum order quantities, and any other provisions applicable to the supply of such Product.

7.2. Purchase of Products . The purchase and sale of Products between the parties shall be made by means of purchase orders placed by one Party or its designee to the other Party. Purchase orders issued before termination of this Agreement calling for delivery in ninety (90) days or less are non-cancelable. Purchase orders calling for delivery in more than ninety (90) days shall be alterable and cancelable by the Ordering Party until ninety (90) days prior to the shipment date, after which such purchase orders become binding.

7.3. Minimum Order Quantities . The minimum quantity of Products that may be purchased on a purchase order for the Products listed on Exhibit C as of the Effective Date is 50 units of a cable-part number, reusable sensor or MASIMO Board, and 500 units of disposable sensors.

7.4. Price . The Supplying Party’s transfer price for the Products delivered to the Ordering Party in accordance with the terms of this Agreement shall be as set forth on Exhibit C. All prices are F.O.B. the Supplying Party’s manufacturing facility or distribution point in the United States. The transfer price for SpO ₂ Sensors and Accessories includes packaging and labeling complying with MASIMO standard packaging guidelines provided to LABS from time-to-time. The transfer price does not include custom packaging or labeling. If custom labeling is desired and feasible as determined by the Supplying Party, all costs associated with such labeling will be paid by the Ordering Party. Payment by the Ordering Party to the Supplying Party shall be made thirty (30) days following receipt of an invoice by Ordering Party.

7.5. Currency Basis . Prices for the sale of Products hereunder shall be in United States dollars.

7.6. Taxes and Levies . All payments for Products under this Article 7 are exclusive of taxes and each Party shall be responsible for paying all taxes relating to products marketed by that Party (except taxes based upon the other Party’s income), including but not limited to all sales, use, personal property, customs, duties, assessments, levies, and other government impositions of any nature.

7.7. Transportation . The method of transportation and carrier selected for Products purchased by a Party shall be as specified by such Party in its purchase orders. Unless otherwise agreed, all transportation charges for Products, including insurance, levies, and taxes, shall be paid by the Ordering Party.

7.8. Packaging . The Supplying Party shall package the Products for shipment. Each shipment shall include a packing list containing: (i) purchase order number; (ii) model number of the Products; (iii) quantity; (iv) serial number or lot code of shipped Products; and (v) certificates of compliance for the applicable quality assurance test performed for the Products being shipped.

7.9. Delivery . The Supplying Party shall use reasonable commercial efforts to fill all purchase orders for Products by delivery dates and in the quantity specified by the other Party in its purchase orders. Notwithstanding the above, the Supplying Party shall have no obligation to deliver Products in less than ninety (90) days from confirmation. If a purchase order calls for more than a 25% increase as compared to the previous three (3) month average of Products ordered, on a Product-by-Product basis, the Supplying Party shall use reasonable commercial efforts to deliver an amount at least equal to the

previous three (3) month average within ninety (90) days, and shall use reasonable commercial efforts to ship the remainder within one hundred twenty (120) days of receipt of the purchase order.

7.10. Emergency Orders . Nothing herein shall prevent a Party from placing emergency orders for Products for delivery in less than ninety (90) days. The Supplying Party agrees to use reasonable efforts to deliver such Products on the requested schedule.

8. COMPATIBILITY

8.1. MASIMO Probes . LABS agrees that it will not modify Masimo’s SpO ₂ Sensors to be used with other than the MASIMO Boards, other boards designed by MASIMO for Vital Signs Monitoring or boards made by Labs under the licenses herein. LABS will purchase Sensors for Vital Signs Monitoring applications exclusively from MASIMO unless the measurements for Vital Signs Monitoring applications and Non-Vital Signs Monitoring are best integrated in one sensor, as determined by LABS in its sole discretion. In such case, LABS may design, develop and manufacture (including manufacturing according to any MASIMO design) integrated sensors and pay MASIMO a royalty of ten percent (10%) of LABS’ Vital Signs Monitoring Portion of the Net Selling Price of integrated sensors; provided, however, that LABS undertakes all regulatory, service and warranty obligations with respect to such sensors and that such sensors pass MASIMO’s validation and verification process such that the full capability of MASIMO SET is obtained. LABS will pay for such validation and verification services at MASIMO’s standard rates then in effect for third party OEM products. MASIMO SET will be enabled for these SpO ₂ Sensors or other sensors which include MASIMO Technology for Vital Signs Monitoring. The Vital Signs Monitoring Portion is the average selling price for the similar product that measures only Vital Signs Parameters. The differential is calculated base on the ASP on a region by region and product by product basis.

8.2. Engineering Support . During the period that MASIMO is funding LABS’ research and development, or there has been no Change of Control, MASIMO shall provide reasonable engineering support to LABS for the integration of MASIMO SET into LABS Licensed Devices and Stand Alone Licensed Devices and for the manufacturing of any Masimo Products as permitted under this Agreement, by assisting Labs with engineering and technical resources, sharing lab equipment, providing prototyping parts and components, legal and financial services, delivering a copy of all MASIMO Software for MASIMO Technology and sufficient information and documentation (such as circuit diagrams, source code and specifications) to permit LABS to reasonably make, use and modify such MASIMO Software and to reasonably make, use and modify the MASIMO Technology. After a Change in Control, MASIMO shall continue to deliver, as reasonably requested by LABS, sufficient information and documentation to permit LABS to reasonably use MASIMO Technology in accordance with the terms of this Agreement. After a Change of Control, if Labs asks MASIMO for more than what MASIMO believes in its sole discretion is reasonable engineering assistance, MASIMO may charge LABS for those services at its actual costs for such support. To the extent necessary, engineering support will apply in reverse with respect to any LABS Technology licensed to MASIMO on a pari passu basis.

9. INSPECTION AND ACCEPTANCE

9.1. Inspection/QA . Each Supplying Party shall provide and maintain an inspection procedure and quality assurance program for its Products and its production processes. Complete records of all inspection and quality assurance work done by a Supplying Party shall be made available to the Ordering Party upon its request at reasonable times during the term of this Agreement.

9.2. Product Defects and Returns .

9.2.1. Return Authorization . Any of the Products or lots of Products (“Lot”) which materially fail to meet the specifications set forth in Exhibit C or otherwise applicable to such Products may be rejected by the Ordering Party and returned to the Supplying Party for replacement. Prior to returning any Products to the Supplying Party, the Ordering Party shall notify the Supplying Party by facsimile that the Ordering Party has rejected the Products, inclusive of the reason or basis of such rejection. Within five (5) working days of the receipt of the notification, the Supplying Party will issue a ^“ Return to Vendor” (“RTV”) number to the Ordering Party by facsimile, which RTV number will be the Ordering Party’s authorization to return the Products.

9.2.2. Product Replacement . Subject to Section 9.2.1, Products which do not conform to the applicable specifications shall be returned by the Ordering Party to the Supplying Party freight collect and insured for full replacement value. Within twenty (20) days after the date of receipt of the nonconforming Products, replacement Product will be shipped to the Supplying Party at the Supplying Party’s expense. Should the Supplying Party fail to replace rejected Products by shipping conforming Products within thirty (30) days of its receipt of the nonconforming Products, the Ordering Party shall have the option to cancel the purchase of such Products without cost or liability and receive, at the Ordering Party’s option, a credit or rebate if payment has been made. The Ordering Party shall pay freight charges, insurance and other customary charges for transportation for improperly rejected Products.

9.2.3. Costs . All costs to replace including transportation with respect to the defective Products shall be the sole responsibility of the Supplying Party.

9.2.4. Unauthorized Correction . If the Ordering Party attempts to correct deficiencies to the Products purchased under this Agreement without prior written authorization from the Supplying Party, then the Supplying Party shall have no further obligations with respect to such Products.

9.3. Nonconforming Acceptance . The Ordering Party may choose to accept Products which fail to conform in a minor aspect to the specifications established by this Agreement without prejudice to its right to reject nonconforming items in the future. If the Ordering Party so chooses, the Ordering Party will notify the Supplying Party of its intent to accept nonconforming items. However, the Supplying Party accepts no responsibility for nonconforming items accepted by the Ordering Party.

10. CONFIDENTIALITY

10.1. Confidentiality . Each Party shall maintain in confidence all Confidential Information of the other Party received in the course of performance under this

Agreement, and shall not disclose such Confidential Information to any third party. In maintaining the confidentiality of Confidential Information of the other Party, each Party shall exercise the same degree of care that it exercises with its own confidential information, and in no event less than a reasonable degree of care. Each Party shall ensure that each of its officers, directors, employees, subcontractors, consultants, representatives and agents holds in confidence and makes no use of the Confidential Information of the other Party for any purpose other than those permitted under this Agreement or required by law.

10.2. Exceptions . Neither Party’s obligations under this confidentiality provision shall apply to information that:

prior to the transmittal was of general public knowledge;

becomes a matter of general public knowledge otherwise than as a consequence of a breach under this Agreement;

is made public by the Party claiming confidentiality;

is required to be disclosed by applicable law; provided however, that the Party who may be required to disclose such information shall notify the other Party in sufficient time for the owner of such Confidential Information to file the appropriate documents with the court to obtain a protective order to enforce the confidentiality requirements of this Agreement;

information which the receiving Party can establish by competent proof was in its possession at the time of disclosure by the disclosing Party and was not acquired, directly or indirectly, from the disclosing Party; or

information which is received from a third party; provided, however, that the receiving Party has no reason to know such information was obtained by said third party, directly or indirectly, from the other Party under a nondisclosure agreement.

11. PROPRIETARY RIGHTS

11.1. MASIMO Technology . MASIMO retains all right, title, and interest in the MASIMO Technology, including, without limitation, all patents, copyrights, trade secrets, and any other intellectual property and proprietary rights. Nothing in this Agreement should be construed as a sale of the MASIMO Technology or any copy of the MASIMO Software to LABS.

11.2. LABS Technology . LABS retains all right, title, and interest in the LABS Technology, including, without limitation, all patents, copyrights, trade secrets, and any other intellectual property and proprietary rights. Nothing in this Agreement should be considered as a sale of the Labs Technology or any copy of the LABS Software to MASIMO.

11.3. Development for Non-Vital Signs Monitoring . Any development using or Improvement to proprietary MASIMO Technology or LABS Technology made by LABS or by MASIMO that relates to Non-Vital Signs Monitoring, and any new technology acquired by LABS during the term of this Agreement shall be the sole property of LABS, and LABS has the right to apply for copyrights, patents (including utility and design patents), or other protection for intellectual property rights anywhere in the world under its own name and at its own expense. Without limiting Section 11.1, MASIMO hereby assigns to LABS all right, title, and interest in the foregoing. Any acquisition of products or technology by MASIMO for Non-Vital Signs Monitoring or Vital-Signs Monitoring or Improvements thereto by MASIMO, before or after the date hereof, is not assigned to LABS and is exclusively retained by MASIMO, except for the assets of Argose, which are to be assigned to Labs.

11.4. Improvements for Vital Signs Monitoring . Any development using or Improvement to proprietary MASIMO Technology or Labs Technology made by MASIMO or LABS that relates to Vital Signs Monitoring, and any new technology acquired by MASIMO during the term of this Agreement, shall be the sole property of MASIMO, and MASIMO has the right to apply for copyrights, patents (Including utility and design patents), or other protection for intellectual property rights anywhere in the world under its own name and its own expense. Without limiting Section 11.2, LABS hereby assigns to MASIMO all right, title, and interest in the foregoing. Any acquisition of products or technology by LABS for Non-Vital Signs Monitoring or Vital-Signs Monitoring or Improvements thereto by LABS, before or after the date hereof, is not assigned to MASIMO and is exclusively retained by LABS, unless LABS uses Masimo Technology to improve such acquired products or technology to provide a Non-Vital Signs Parameter, in which case such Non-Vital Signs Parameter shall be included within the license or option and other terms provided to MASIMO herein.

11.5. Further Action . LABS and MASIMO agree to take such further action and execute such further documents as reasonably necessary to establish ownership as set forth in Section 6.2, and Sections 11.1 through 11.6.

12. INDEMNIFICATION

12.1. MASIMO indemnification . MASIMO will defend, indemnify and hold LABS harmless against any and all liability, loss, damages, costs or expenses which LABS may hereafter incur, as a result of any injury, illness or death of any person which is caused by any Product or device manufactured by MASIMO and purchased by LABS from MASIMO, to the extent that such injury, illness or death results directly from such products manufactured or technology provided by MASIMO.

12.2. LABS indemnification . LABS will defend, indemnify and hold MASIMO harmless against any and all liability, loss, damages, costs or expenses which MASIMO may hereafter incur, as a result of any injury, illness or death of any person which is caused by any Product or device manufactured by LABS and purchased by MASIMO from LABS, to the extent that such injury, illness or death results directly from such products manufactured by LABS. For purposes of clarity, Labs shall have no liability of any kind for technology it has only licensed to Masimo as compared to provided in a product sold to Masimo.

12.3. Infringement for Vital Signs Monitoring . MASIMO shall settle or defend, at MASIMO’s own expense, and pay any direct damage, costs or fines resulting from all proceedings, threats of proceedings or claims against LABS or its customers for infringement or alleged infringement by the Vital Signs Monitoring application(s) in LABS Licensed Devices or Stand Alone Licensed Devices, to the extent relating to the Masimo Technology licensed to LABS in this Agreement, of intellectual property rights of third parties. LABS agrees to notify MASIMO promptly in writing of any such proceeding, and to give MASIMO necessary assistance where practical, to modify the applicable Product to make it noninfringing or, where practical, to obtain licenses under such intellectual property rights. MASIMO makes no representation that Masimo Technology is not limited by any patent for Non-Vital Sign Measurements.

12.4. Tender of Defense The indemnifying party shall have no liability or responsibility of any kind to the indemnified party under this Section unless the Party seeking indemnity shall have notified the other Party within a reasonable time of such claims, and the indemnifying Party shall have been given an adequate opportunity to defend, including complete control of the defense and any settlement. Should the Party seeking indemnity desire to have its own counsel participate in any such action, the cost of such counsel shall be exclusively Party seeking indemnity.

12.5. Notwithstanding the foregoing, the Party that owns intellectual property licensed to the other Party under this Agreement shall have the first right to enforce such intellectual property, even in the market of the other Party, including the right to prosecute and settle all intellectual property claims. If the licensor is unable to or unwilling to enforce intellectual property that relates to the other Parties market, as defined in this Agreement, the licensee will then have the right to enforce any intellectual property licensed exclusively in the licensee’s market. The non-enforcing party will have no right to any recoveries from such enforcement. Notwithstanding the above, LABS shall not have the right to enforce U.S. Patent No. 6,263,222.

12.6. Patent Validity . During and after the term of this Agreement, each Party agrees not to challenge the validity of any of the patents of the other Party to which this Agreement relates.

12.7. LIMITATION OF LIABILITY . EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, MASIMO AND LABS GRANT NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ON THE PRODUCTS OR TECHNOLOGY PROVIDED TO EACH OTHER, AND EACH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF MASIMO OR LABS FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONJUNCTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS OR TECHNOLOGY. IN NO EVENT SHALL MASIMO OR LABS BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL DAMAGES OR LOSS OF PROFIT SUFFERED BY THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT.

13. REGULATORY COMPLIANCE

13.1. LABS U.S. Regulatory Approvals . LABS shall be solely responsible for identifying and obtaining, at its sole cost and expense, all FDA and United States safety agency approvals and any other agency or regulatory approvals which are required for the development, manufacture or sale of LABS Licensed Devices and Stand Alone

Licensed Devices. MASIMO will reasonably cooperate with LABS by providing at no charge to LABS any MASIMO data in its possession that is reasonably required to obtain the regulatory approvals, including but not limited to 510(k) application materials submitted by MASIMO for its own products that incorporate MASIMO Technology. Disclosure to LABS of any such data shall be subject to the confidentiality provisions of Section 10 (“CONFIDENTIALITY”).

13.2. Other LABS Regulatory Approvals . LABS shall be solely responsible, at its sole cost and expense, (i) for identifying and obtaining any necessary approvals or certifications by any non-U.S. governmental, safety or regulatory entity, including testing or other procedures, for the sale by LABS of LABS Licensed Devices and Stand Alone Licensed Devices, (ii) for identifying and complying with any safety precautions, safety markings, labels or consumer notices required for LABS Licensed Devices in any country other then the United States, and (iii) for assessing the appropriateness of the LABS Licensed Devices for any particular Customer application. MASIMO will cooperate with LABS by providing any data in its possession that is reasonably required to obtain such approvals or certifications. Disclosure to LABS of any such data to any third party shall be subject to the confidentiality provisions of Section 10.

13.3. MASIMO U.S. Regulatory Approvals . MASIMO shall be solely responsible for identifying and obtaining, at its sole cost and expense, all FDA and United States safety agency approvals and any other agency or regulatory approvals which are required for the development, manufacture or sale of Products by MASIMO in the MASIMO Market. LABS will reasonably cooperate with MASIMO by providing at no charge to MASIMO any LABS data in its possession that is reasonably required to obtain the regulatory approvals, including but not limited to 510(k) application materials submitted by LABS for its own products that incorporate LABS Technology for Products in the MASIMO Market. Disclosure to MASIMO of any such data shall be subject to the confidentiality provisions of Section 10.

13.4. Other MASIMO Regulatory Approvals . MASIMO shall be solely responsible, at its sole cost and expense, (i) for identifying and obtaining any necessary approvals or certifications by any non-U.S. governmental, safety or regulatory entity, including testing or other procedures, for the sale by MASIMO of MASIMO Licensed Devices, (ii) for identifying and complying with any safety precautions, safety markings, labels or consumer notices required for MASIMO Licensed Devices in any country other then the United States, and (iii) for assessing the appropriateness of the MASIMO Licensed Devices for any particular Customer application. LABS will cooperate with MASIMO by providing any data in its possession that is reasonably required to obtain such approvals or certifications. Disclosure to MASIMO of any such data to any third party shall be subject to the confidentiality provisions of Section 10.

13.5. Export Controls . Regardless of any disclosure to one Party by the other Party of an ultimate destination of the product obtained from the one Party, the other Party shall not transfer or re-export, whether directly or indirectly, any software or hardware containing the technology of the other Party, the related documentation, or other related proprietary information to anyone outside the U.S. as to which export may be in violation of the United States export laws or regulations without first obtaining the appropriate license from the U.S. Department of Commerce and/or any agency or department of the U.S. government, as required.

14. INCIDENT REPORTING

14.1. By LABS . LABS represents that in addition to being responsible for all regulatory approvals for its Products, that should any material incidents of failure of any LABS Licensed Devices which include Vital Signs Monitoring or Stand Alone Licensed Devices or injury related to such Products be reported to LABS, that it will take good faith efforts to promptly (i.e., within two (2) business days) notify MASIMO of any such performance problems or deficiencies relating to Vital Signs Monitoring licensed from Masimo.

14.2. By MASIMO . MASIMO represents that in addition to being responsible for all regulatory approvals for its Products, that should any material incidents of failure of any MASIMO Licensed Device which includes Non-vital Signs Monitoring or injury related to such Products be reported to MASIMO, that it will take good faith efforts to promptly (i.e., within two (2) business days) notify LABS of any such performance problems or deficiencies relating to Non-Vital Signs Monitoring licensed from LABS.

15. TERM AND TERMINATION

15.1. Term . The term of this Agreement shall commence on the Effective Date and shall continue in effect until terminated in accordance with this Article 15.

15.2. Termination for Breach . The default by one Party of a material obligation of such Party under this Agreement shall entitle the other Party to give the Party in default written notice describing such default in detail (including all supporting documentation) and requiring it to remedy such default. If such default is not fully remedied within ninety (90) days after the date of such notice, the notifying Party shall be entitled to, in addition to all other remedies available to such Party, exercise its rights under the Escrow, as contemplated by Article 17, or terminate this Agreement by a written notice to the defaulting Party. A Party may not continue to exercise its rights under the Escrow if it terminates this Agreement.

15.3. Termination on Liquidation . Either Party may terminate this Agreement at any time after the involuntary institution of any proceedings for the liquidation or winding up of the other Party’s business which have not been terminated within 180 days after institution.

15.4. Rights Upon Termination . In the event of any valid termination of this Agreement [under Section 15.2 (“Termination for Breach ^” ) or 15.3 (“Termination on Liquidation ^” ),] each the breaching or liquidating Party’s rights under this Agreement shall be terminated except as follows:

15.4.1. No termination of this Agreement shall terminate or otherwise impact LABS’ rights under Sections 2.1.1, 2.1.2, 2.1.4, 2.3 or any sublicenses and private label patient monitoring company contracts under 2.1.3.

15.4.2. No termination shall effect the rights of customers that have already purchased products to continue to use such products, or the rights of the licensee to continue to sell sensors and accessories to meet the needs of such purchased products.

15.4.3. No termination shall impact either Party’s rights to collect for accrued royalties or the licenses granted in this Agreement, which continue after termination on the terms and conditions existing upon termination.

15.4.4. For any termination for breach, only the rights of and licenses to the breaching Party are terminated, and rights and licenses to the non-breaching Party remain in effect, as well as the obligations of the breaching Party to the non-breaching Party.

15.5. Survival . The rights and obligations of the Parties hereto under Sections 10 (“Confidentiality”), 11 (“Proprietary Rights”), 12 (“Indemnification”), 13 (“Regulatory Compliance”), 14 (“Incident Reporting”), 2.1.1, 2.1.2, 2.1.4, and 2.3 ( “Trademarks, Legends and Logos”), or any sublicenses and private label patient monitoring company contracts under 2.1.3, and 4 (“Masimo Option”) of this Agreement shall survive and continue after termination of this Agreement and shall bind the Parties and their representatives, successors, heirs and assignees.

16. DISPUTE . If any dispute or difference 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. If LABS and MASIMO have the same CEO, and the common CEO determines that a conflict exists that he cannot resolve due to the diverging interests of Labs and Masimo, the common CEO at his option, will either 1) appoint an independent board member (if one exists) to represent each Party to discuss and negotiate resolutions to conflicts arising under this Agreement, with the CEO, or 2) the common CEO will resolve the issue to his best capability to balance the needs of both Masimo and Labs and seek Board approval of both Masimo and Labs for his decision. If the Parties are unable to reach agreement or amicably settle the dispute or difference within ninety (90) days after such dispute or difference has arisen, such dispute will be resolved through binding arbitration, applying the AAA rules. The prevailing Party will be entitled to recover, in addition to any other award of the arbitrators, its attorney’s fees and costs associated with the arbitration.

17. ESCROW

17.1. Escrow Deposit . When LABS and MASIMO no longer have the same CEO, either Party may request that each of MASIMO and LABS place in escrow with an independent third party copies of the LABS Technology and MASIMO Technology, respectively, pursuant to the terms of an escrow agreement on commercially reasonable and standard terms. Such escrow agreement will be negotiated and agreed to by the Parties at such time as either party makes a written request upon the other. Each Party will pay its own fees and costs to establish the escrow, except that the Party requesting the escrow shall pay all costs of the escrow agent during the term of the escrow, notwithstanding the fact that both Parties will have technology placed in the escrow and both Parties will have rights to technology under the escrow. The escrow will include drawings and all necessary information available to each such Party for use of the technology pursuant to the License in Section 17.2. Each Party shall update its deposit in accordance with the escrow agreement.

17.2. License upon Release . In the event that a Party is in breach of an obligation under this Agreement that inhibits the other Party’s ability to make, use, offer for sell or sell products licensed under this agreement, and such breach is not cured within the time period provided herein, the nonbreaching Party is granted by the

breaching Party a revocable, license to use, maintain, develop and improve the technology in escrow for the intended purposes of this Agreement, provided that, the other Party shall have no right to access, maintain, develop or possess the deposited technology except in accordance with the terms of the escrow agreement; and provided further, that all royalties and other obligations due under this Agreement shall not be reduced, waived or eliminated in any way during the time period that such license remains in effect. The license under this paragraph shall only apply during the continuation of the breach, and not after it has been cured, except that where significant investment of funds was made by the licensed Party, the period of license shall run until the investing party has recovered the amount invested, or the breaching party reimburses the licensed Party for its out of pocket costs associated with establishing its own manufacturing due to the failure to supply.

17.3. Intentions of Escrow . As a matter of clarity, the purpose of the escrow is only to reduce the risk of unavailability of necessary information to allow a licensed Party to continue to achieve the purposes anticipated by this Agreement by having the temporary license to such information in situations where there has been an uncured breach of this Agreement, and not alter existing economic or other obligations under this Agreement, or allow or provide for any permanent transfer of any rights or assets from one Party to the other as a result of a release of information from the escrow contemplated in this Article 17.

18. MISCELLANEOUS

18.1. Nonassignability. Neither MASIMO nor LABS may assign this Agreement except in connection with the sale of all or substantially all of the assets or business of such Party to which this Agreement relates. This Agreement will inure to the benefit of and bind each Party’s successors and assigns.

18.2. Failure to Enforce . The failure of either Party to enforce at any time or for 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.

18.3. Governing Law . This Agreement shall be deemed to have been made in the State of California, United States of America, and shall be governed by and construed according to the laws of the State of California.

18.4. Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be deleted from this Agreement and the remaining portions of this Agreement shall remain in full force and effect, except where the economic equity of both Parties hereto is materially affected by such unenforceability.

18.5. Notice . Except as either Party may hereafter notify the other in writing with respect to itself, the addresses of the Parties for all purposes of this Agreement shall be:


MASIMO:		MASIMO CORPORATION
		40 Parker
		Irvine, CA 92618
		Attention: Chief Executive Officer


LABS:		MASIMO LABORATORIES
		50 Parker
		Irvine, CA 92618
		Attention: Chief Executive Officer

All notices and communications pursuant to this Agreement shall be addressed as set forth above and shall be delivered to the Party for whom intended by hand or by postage prepaid, first class, registered or certified mail, return receipt requested. Such notices and communications shall be deemed to have been given and delivered as of the date of receipt.

18.6. Force Majeure . Neither Party shall be liable to the other Party hereto for any loss, injury, delay, damages or other casualties suffered or incurred by such other Party due to strikes, riots, storms, fires, acts of God, or war or any other cause beyond the reasonable control of either Party.

18.7. Headings . Headings to paragraphs and sections of this Agreement are to facilitate reference only, do not form a part of this Agreement, and shall not in any way affect the interpretation hereof.

18.8. Exhibits . All exhibits to which this Agreement refers are hereby incorporated into and made a part of this Agreement.

18.9. Entire Agreement . This Agreement constitutes the entire agreement between LABS and MASIMO, and expressly supersedes the Original Agreement and all previous amendments , and there are no other understandings, agreements or representations, express or implied, written or oral, not specified herein. This Agreement may only be amended by express written agreement and signed by authorized representatives of both Parties.

18.10. Bankruptcy . Each of MASIMO and LABS is a licensee under 11 U.S.C. §365(N) and is entitled to the protections as a licensee provided therein.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth above.

EXHIBIT A

MASIMO SET® DEFINITION

MASIMO SET ^® includes the following MASIMO Technology, as it relates to pulse oximetry:

LNOP ^{^®} , AutoProCal ^™ , ProCal™, DST™, FST™ Technology, SST, Proprietary Engine number 4, APOD, PVI, PI, FastSat, and Parallel Engines;

Transducers (sensor/probe) designed to reduce cost, reduce noise and improve accuracy;

The technique of building a reference generator for calculating substantially a noise or signal reference;

Use of a noise reference or signal reference to minimize the effect of unwanted noise components (e.g., motion artifacts) from physiological waveforms (e.g., photo-plethysmographic waveforms);

Use of a reference generator along with a correlation canceler (e.g., Joint Process Estimator) to map natural photo-plethysmographic waveforms into oxygen saturation space;

Use of a saturation transform, which is the technique of mapping plethysmographic waveforms into saturation space (e.g., saturation vs. power or probability and saturation vs. frequency or pulse rate); and/or

Use of transducers, circuitry, general digital signal processing techniques, mathematical algorithms for processing physiological signals and providing one or more final results (e.g., arterial blood oxygen saturation, pulse rate and/or photo-plethysmographic wave forms).

EXHIBIT B

Exhibit B1: to include Masimo Licensed Trademarks. See 1.20.

Panatone Red / PMS Black

1850 MAT

(MASIMO WILL PROVIDE CAMERA READY ARTWORK UPON REQUEST)

NO IMPLIED LICENSE LABEL

EXHIBIT C

Price of Products

Price for MASIMO Boards: MASIMO’s transfer prices to LABS for the MS2000 Boards shall be $175.00:

Price for Rainbow Boards:

All Rainbow Boards and Rainbow sensors at cost of goods sold up to 10% of MASIMO’s anticipated annual volume, determined on an annual basis. Thereafter, Labs will manufacture such Rainbow Boards or Rainbow sensors itself, or may purchase from Masimo at COGS plus Masimo’s regular margin. When Labs wishes to manufacture, Masimo will provide reasonable assistance consistent with this Agreement, including providing Labs with access to Masimo vendors (Masimo vendors will be instructed to transfer to Labs the products at the same price they supply them to Masimo), tools, manufacturing process procedures and training.

Transfer Price for Sensors and Accessories: MASIMO’s initial baseline transfer prices to LABS for the SpO ₂ Sensors and Accessories delivered in accordance with this Agreement shall be at the most favored OEM prices.

LABS shall receive the best price offered by MASIMO to any other person or entity for Products. In the event that MASIMO provides more favorable pricing to another person or entity, MASIMO shall notify LABS of such better pricing within thirty days, and LABS shall have the option of accepting the more favorable pricing, effective immediately.

EXHIBIT D

End-User License Agreement

THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU, THE “PURCHASER”, AND LABS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE ENTIRE PACKAGE, INCLUDING ALL ACCESSORIES, IN THEIR ORIGINAL PACKAGE, WITH YOUR SALES RECEIPT TO LABS FOR A FULL REFUND.

1. Grant of License

In consideration of payment of the license fee, which is part of the price paid for this product, LABS grants to Purchaser a nonexclusive, nontransferable license, without right to sublicense, to use the copy of the incorporated software/firmware, and documentation in connection with Purchaser’s use of the Products for their labeled purpose. LABS reserves all rights not expressly granted to Purchaser.

2. Ownership of MASIMO Software/Firmware

Title to, ownership of, and all rights and interests in, any MASIMO software and/or firmware and the documentation, and all copies thereof, remain at all times vested in MASIMO Corporation, licensor to LABS, and they do not pass to Purchaser.

3. Assignment

Purchaser shall not assign or transfer this License, in whole or in part, by operation of law or otherwise, without LABS’ prior written consent; any attempt without such consent, to assign any rights, duties or obligations arising hereunder shall be void.

4. Copy Restrictions

The software/firmware and the accompanying written materials are copyrighted. Unauthorized copying of the software, including software that has been modified, merged, or included with other software, or other written materials is expressly forbidden. You may be held legally responsible for any copyright infringement that is cause or incurred by your failure to abide by the terms of this license. Nothing in this license provides any rights beyond those provided by 17 U.S.C. § 117.

5. Use Restriction

As the Purchaser, you may physically transfer the products from one location to another provided that the software/firmware is not copied. You may not electronically transfer the software/firmware from the products to any other device. You may not disclose, publish, translate, release or distribute copies of the software/firmware or accompanying written materials to others. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the software/firmware. You may not modify; adapt, translate, or create derivative works based on the written materials without the prior written consent of LABS.

6. Transfer Restrictions

The software/firmware is licensed to the Purchaser, and may not be transferred to anyone, except other end-users, without the prior written consent of LABS. In no event may you transfer, assign, rent, lease, sell, or otherwise dispose of the software/firmware or the products on a temporary basis.

7. Beneficiary

MASIMO Corporation is a Beneficiary of this Agreement and has the right to enforce its provisions.

RESTRICTED RIGHTS LEGEND

The software/firmware and documentation is commercial computer software as defined in DFARS § 252.277.7014(a)(1). The Government shall have only those rights specified in this Agreement. DFARS § 227.7202-3(a).