UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(by Misonix, LLC, as successor by merger to Misonix, Inc.)
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(Address of principal executive offices, including zip code)
(Registrant’s Telephone number, including Area Code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1934 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Securities Exchange Act of 1934:
| Title of each class |
Trading |
Name of each exchange | ||
Introductory Note
This Current Report on Form 8-K is being filed in connection with the completion of the previously announced Agreement and Plan of Merger, dated July 29, 2021, by and among Bioventus Inc. (“Bioventus”), Oyster Merger Sub I, Inc., a Delaware corporation, and a wholly owned subsidiary of Bioventus (“Merger Sub I”), Oyster Merger Sub II, LLC, a Delaware limited liability company, and a wholly owned subsidiary of Bioventus (“Merger Sub II”), and Misonix, Inc., a Delaware corporation (“Misonix”), as may be amended from time to time (the “Merger Agreement”), which provided for, among other things, (a) the merger of Merger Sub I with and into Misonix, with Misonix surviving as a wholly-owned subsidiary of Bioventus (the “First Merger”) and (b) immediately following the consummation of the First Merger, the merger of Misonix with and into Merger Sub II, with Merger Sub II surviving as Misonix, LLC (the “Second Merger” and together with the First Merger, the “Mergers”). Capitalized terms used herein but not defined shall have the respective meanings assigned to them in the Merger Agreement.
The Mergers were consummated on October 29, 2021 (the “Closing Date”). At the effective time of the First Merger (the “First Effective Time”), each share of common stock, par value $0.0001 per share, of Misonix (“Misonix Common Stock”) issued and outstanding immediately prior to the First Effective Time (other than the shares that were owned by Bioventus, Misonix, Merger Sub I or Merger Sub II and shares of any dissenting holders who are entitled to and have properly asserted appraisal rights) was converted into the right to receive, either an amount in cash equal to $28.00 or 1.6839 validly issued, fully paid and non-assessable shares of Class A common stock of Bioventus, $0.001 par value per share (each share, a “Bioventus Share”), based on the election of the holder thereof in accordance with the terms of the Merger Agreement (and subject to proration as provided therein). No fractional shares were issued in the First Merger and the value of any fractional Bioventus Shares that a former holder of Misonix Common Stock would otherwise be entitled to receive will be paid in cash.
Per the terms of the transactions described in the Merger Agreement, approximately 18,340,790 Bioventus Shares will be issued in connection with the First Merger to former Misonix stockholders, and former Misonix stockholders will own approximately 24.4% of the common equity of Bioventus following the consummation of the First Merger.
The issuance of Bioventus Shares pursuant to the terms of the Merger Agreement were registered under the Securities Act of 1933, as amended, pursuant to Bioventus’ Registration Statement on Form S-4 filed by Bioventus with the Securities and Exchange Commission (the “SEC”) on September 8, 2021, as amended by Amendment No. 1 to the Form S-4 filed with the SEC on September 22, 2021, and declared effective by the SEC on September 24, 2021.
Item 1.02 Termination of a Material Definitive Agreement.
Silicon Valley Bank Credit Facility
In connection with the consummation of the Mergers, on October 27, 2021, Misonix and its subsidiaries terminated all outstanding lender commitments, including commitments of the lenders to issue letters of credit, under that certain Loan and Security Agreement, dated December 26, 2019, by and among Misonix, Solsys Medical, LLC, Misonix OpCo, Inc. and Silicon Valley Bank (as amended from time to time, including pursuant to the First Loan Modification Agreement, dated January 6, 2020, and the Second Loan Modification Agreement, dated June 30, 2020, the “SVB Credit Agreement”). In connection with the termination of the SVB Credit Agreement, on October 27, 2021, all outstanding obligations for principal, interest and fees under the SVB Credit Agreement were paid off in full, and all liens securing such obligations and any letter of credit or hedging obligations permitted by the SVB Credit Agreement to be secured by such liens and guarantees of such obligations were released.
SWK Credit Facility
In connection with the consummation of the Mergers, on October 29, 2021, Misonix and its subsidiaries terminated all outstanding lender commitments, including commitments of the lenders to issue letters of credit, under that certain Amended and Restated Credit Agreement, dated September 27, 2019, by and among Misonix, Solsys Medical, LLC and SWK Funding LLC, as administrative agent for the other lenders (as amended from time to time, including pursuant to the First Amendment, dated December 23, 2019 and the Second Amendment, dated June 30, 2020, the “SWK Credit Agreement”). In connection with the termination of the SWK Credit Agreement, on October 29, 2021, all outstanding obligations for principal, interest and fees under the SWK Credit Agreement were paid off in full, and all liens securing such obligations and any letter of credit or hedging obligations permitted by the SWK Credit Agreement to be secured by such liens and guarantees of such obligations were released.
Item 2.01 Completion of Acquisition or Disposition of Assets.
Merger Consideration
As discussed in the Introductory Note, on October 29, 2021, the Mergers were consummated in accordance with the terms of the Merger Agreement. At the First Effective Time, each share of Misonix Common Stock issued and outstanding immediately prior to the First Effective Time (other than the shares that were owned by Bioventus, Misonix, Merger Sub I or Merger Sub II and shares of any dissenting holders who are entitled to and have properly asserted appraisal rights) was converted into the right to receive, either an amount in cash equal to $28.00 or 1.6839 validly issued, fully paid and non-assessable Bioventus Shares, based on the election of the holder thereof in accordance with the terms of the Merger Agreement (and subject to proration as provided therein). No fractional shares were issued in the First Merger and the value of any fractional Bioventus Shares that a former holder of Misonix Common Stock would otherwise be entitled to receive will be paid in cash.
Holders of Misonix Common Stock had the right to elect to receive for each share of Misonix Common Stock they held either (i) 1.6839 Bioventus Shares (the “stock election consideration”) or (ii) $28.00 (the “cash election consideration”). However, the maximum cash amount payable by Bioventus was an amount equal to $10.50 multiplied by the number of shares of Misonix Common Stock outstanding shortly prior to the completion of the transaction, or 17,427,170 shares. As such, the maximum cash payable by Bioventus in the First Merger was $182,985,285. The election results with respect to the form of consideration were as follows:
| • | Holders of approximately 10,670,441 shares of Misonix Common Stock outstanding immediately prior to the First Effective Time elected to receive the cash election consideration. |
| • | Holders of approximately 5,695,481 shares of Misonix Common Stock outstanding immediately prior to the First Effective Time elected to receive the stock election consideration. |
| • | Holders of approximately 1,061,248 shares of Misonix Common Stock outstanding immediately prior to the First Effective Time made no election. |
Because the aggregate amount of cash elected to be received by holders of Misonix Common Stock ($298,772,348) exceeded the maximum cash amount of $182,985,285, the number of shares of Misonix Common Stock electing to receive the cash consideration was reduced on a pro rata basis and the remainder of the shares of Misonix Common Stock were paid the stock consideration of 1.6839 Bioventus Shares, in accordance with the Merger Agreement. Accordingly, holders of Misonix Common Stock who validly elected to receive cash election consideration will receive approximately $17.15 in cash and 0.6525 Bioventus Shares, subject to rounding described in the Merger Agreement and cash in lieu of fractional shares each of which may result in variances on a holder-by-holder basis. The aggregate consideration to be paid in the Mergers is equal to $182,988,466.76 in cash and 18,340,790 Bioventus Shares, taking into account rounding described in the Merger Agreement and cash in lieu of fractional shares.
Treatment of Options
Additionally, at the First Effective Time, each outstanding option to purchase Misonix Common Stock (“Misonix Option”) held by an individual who, as of immediately after the First Effective Time, constituted an “employee” of Bioventus within the meaning of Form S-8 (each an “Assumed Misonix Option”) was assumed by Bioventus and converted into a right to purchase Bioventus Shares on the same terms and conditions that applied to the Assumed Misonix Option immediately prior to the First Effective Time, provided that, the number of Bioventus Shares subject to each Assumed Misonix Option and the exercise price of each Assumed Misonix Option was adjusted by the Option Exchange Ratio (as defined in the Merger Agreement) and each Assumed Misonix Option became fully vested immediately upon the First Effective Time. Effective as of the First Effective Time, each Misonix Option that was not an Assumed Misonix Option and that was outstanding and unexercised was settled in cash immediately prior to the First Effective Time for an amount equal to the excess of the Average Company Stock Price (as defined in the Merger Agreement) over the per-share exercise price of each such Misonix Option.
The foregoing description of the Mergers and the Merger Agreement, and the transactions contemplated thereby, is a summary only, does not purport to be complete, and is subject to and qualified in its entirety by reference to the full text of the Merger Agreement, which is attached to this Current Report on Form 8-K as Exhibit 2.1 and is incorporated by reference herein.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
On October 29, 2021, in connection with the consummation of the Merger, Misonix notified The Nasdaq Global Select Market (“Nasdaq”) that the Mergers had been consummated and requested that the trading of Misonix Common Stock on Nasdaq be suspended prior to market open on October 29, 2021 and that the listing of the shares of Misonix Common Stock on Nasdaq be withdrawn. In addition, Misonix requested that Nasdaq file with the SEC a notification on Form 25 to report the delisting of the shares of Misonix Common Stock from Nasdaq and to deregister the shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Misonix intends to file with the SEC a Form 15 suspending Misonix’s reporting obligations under Sections 13 and 15(d) of the Exchange Act pursuant to Section 12(g) of the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in the Introductory Note, Item 2.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
As of the First Effective Time, holders of Misonix Common Stock immediately prior to the First Effective Time ceased to have any rights as common stockholders of Misonix (other than the right to receive the merger consideration or as provided by law).
Item 5.01. Changes in Control of Registrant.
Upon the First Effective Time, a change in control of Misonix occurred, and Misonix became a direct, wholly-owned subsidiary of Bioventus.
The information set forth in the Introductory Note, Item 3.03 and Item 5.02 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the First Merger, immediately following the First Effective Time, (i) pursuant to the requirements of the Merger Agreement, Patrick J. Beyer, Michael Koby, Paul LaViolette, Thomas M. Patton, and Stavros Vizirgianakis (constituting all members of the Misonix Board of Directors) resigned as directors of Misonix and its subsidiaries and (ii) each of Mr. Vizirgianakis, Chief Executive Officer, Joseph P. Dwyer, Chief Financial Officer, Sharon W. Klugewicz, Chief Operating Officer, Robert S. Ludecker, Senior Vice President of Global Sales and Marketing, and Jay Waggoner, Senior Vice President of Sales - Wound, each resigned from all positions as officers of Misonix and its subsidiaries and, as a result, ceased to be executive officers of Misonix, and Messrs. Vizirgianakis and Dwyer will receive severance benefits consistent with the terms of their employment agreements. The respective resignations of the foregoing directors and officers of Misonix were not a result of any disagreements between Misonix and any of the directors or officers on any matter relating to Misonix’s operations, policies or practices.
The information set forth in the Introductory Note is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the completion of the First Merger and pursuant to the Merger Agreement, (a) at the First Effective Time, the Restated Certificate of Incorporation and By-laws of Misonix, as in effect immediately prior to the First Effective Time, continued to be the certificate of incorporation and by-laws of Misonix, as the surviving corporation in the First Merger and (b) at the effective time of the Second Merger (the “Second Effective Time”), the certificate of formation and limited liability company agreement of Merger Sub II in effect immediately prior to the Second Effective Time continued to be the certificate of formation and limited liability company agreement of Merger Sub II, as the surviving company in the Second Merger under the name Misonix, LLC, until thereafter amended as provided in the Merger Agreement. Copies of the certificate of formation of Merger Sub II and the limited liability company agreement of Misonix, LLC are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
Reference is made to the Exhibit Index included with this Current Report on Form 8-K.
| Exhibit No. |
Description | |
| 2.1 | Agreement and Plan of Merger, dated as of July 29, 2021, by and among Misonix, Bioventus, First Merger Sub and Second Merger Sub (incorporated by reference to Exhibit 2.1 of Misonix’s Current Report on Form 8-K filed on July 29, 2021) | |
| 3.1 | Certificate of Formation of Merger Sub II | |
| 3.2 | Limited Liability Company Agreement of Misonix, LLC | |
| 104 | Cover Page Interaction Date File (embedded within the Inline XBRL document) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Misonix, LLC, as successor by merger to Misonix, Inc. | ||||||
| By: | /s/ Anthony D’Adamio | |||||
| Dated: October 29, 2021 | Name: Anthony D’Adamio Title: Secretary | |||||
Exhibit 3.1
CERTIFICATE OF FORMATION OF
OYSTER MERGER SUB II, LLC
Dated as of July 27, 2021
This Certificate of Formation of Oyster Merger Sub II, LLC is being duly executed and filed by the undersigned, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.).
1. Name. The name of the limited liability company formed hereby is Oyster Merger Sub II, LLC (the “Company”).
2. Registered Office. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
3. Registered Agent. The name and address of the registered agent of the Company is The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Oyster Merger Sub II, LLC as of the date first above written.
| /s/ Anthony D’Adamio | ||
| Name: | Anthony D’Adamio | |
| Title: | Authorized Person | |
Signature Page to Certificate of Formation of Oyster Merger Sub II, LLC
Exhibit 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
of
MISONIX, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) has been adopted by Bioventus Inc., a Delaware corporation, as the sole member (the “Member”) of Misonix, LLC, a Delaware limited liability company (f/k/a Oyster Merger Sub II, LLC; the “Company”), effective as of October 29, 2021.
WHEREAS, the Company was formed on July 27, 2021 pursuant to the provisions of the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq., as amended from time to time (the “Act”) and the Member and the Company entered into the Limited Liability Company Agreement of the Company, effective as of July 27, 2021 (the “Original LLC Agreement”), and
WHEREAS, the Member has authorized and approved an amendment and restatement of the Original LLC Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the promises and the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the Member hereby amends and restates the Original LLC Agreement in its entirety as follows:
1. Formation. A certificate of formation of the Company (the “Certificate”) was executed and filed with the Office of the Secretary of State of the State of Delaware on July 27, 2021, which was amended by a certificate of merger of Misonix, Inc., a Delaware corporation, with and into the Company (f/k/a Oyster Merger Sub II, LLC), executed and filed with the Office of the Secretary of State of the State of Delaware on October 29, 2021.
2. Name. The name of the Company shall be “Misonix, LLC”, or such other name as the Member (as defined below) may from time to time hereafter designate.
3. Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth therefor in Section 18-101 of the Act.
4. Purpose. The Company is formed for the purpose of engaging in any lawful business permitted by the Act or the laws of any jurisdiction in which the Company may do business. The Company shall have the power to engage in all activities and transactions which the Member deems necessary or advisable in connection with the foregoing.
5. Offices.
(a) The principal place of business and office of the Company shall be located at, and the Company’s business shall be conducted from, such place or places as the Member may designate from time to time.
(b) The registered office of the Company in the State of Delaware shall be located at c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The Member may from time to time change the registered agent or office by an amendment to the Certificate.
6. Member. Bioventus Inc. is the sole member of the Company.
7. Term. The term of the Company commenced on the date of filing of the Certificate in accordance with the Act and shall continue until the Company is dissolved and its affairs are wound up in accordance with Section 13 of this Agreement and a certificate of cancellation is filed in accordance with the Act.
8. Management. The Member shall be authorized to make all decisions and to take all actions it determines necessary, advisable or desirable relating to the business, affairs, investments, and properties of the Company including, without limitation, the formation of or investment in, such subsidiary or affiliate companies of the Company as it determines advisable or desirable.
9. Capital Contributions. The Member may make capital contributions to the Company from time to time, but shall not be required to make any capital contributions.
10. U.S. Tax Status. In accordance with Section 301.7701-3(a) of the U.S. federal income tax regulations, the Company shall be disregarded as an entity separate from the Member.
11. Assignment. The Member may assign in whole or in part its limited liability company interest in the Company.
12. Admission of Additional Members. The Member may admit additional members in its discretion.
13. Dissolution. The Company shall dissolve and its business and affairs shall be wound up upon the written consent of the Member or the entry of a decree of judicial dissolution under § 18-802 of the Act. Upon the dissolution of the Company, the affairs of the Company shall be liquidated forthwith. The assets of the Company shall be used first to pay or provide for the payment of all of the debts of the Company, with the balance being distributed to the Member.
2
14. Amendments. This Agreement may be amended, supplemented, waived or modified at any time and from time to time only by a written instrument executed by the Member.
15. Miscellaneous. The Member shall not have any liability for the debts, obligations or liabilities of the Company except to the extent provided by the Act.
16. Authorization.
(a) Anthony D’Adamio is hereby designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate with the Secretary of State of the State of Delaware. Upon the filing of the Certificate with the Secretary of State of the State of Delaware, Anthony D’Adamio’s powers as an “authorized person” ceased.
(b) Anthony D’Adamio and any other person designated by the Member, each acting individually, is hereby authorized and empowered, as an authorized person of the Company within the meaning of the Act, or otherwise (the Member hereby authorizing and ratifying any of the following actions):
(i) to execute and deliver and/or file (in the name and on behalf of the Company) any agreement of the Company and any amendments, restatements and/or supplements thereof, the certificate of formation of the Company, any other certificates, notices, applications and other documents (and any amendments, restatements and/or supplements thereof) to be filed with any government or governmental or regulatory body, including, without limitation, any such document that may be necessary for the Company to qualify to do business in a jurisdiction in which the Company desires to do business; or
(ii) to prepare or cause to be prepared, and to sign, execute and deliver and/or file (in the name and on behalf of the Company) (A) such documents, instruments, certificates and agreements as may be necessary or desirable in furtherance of the Company’s purposes, (B) any certificates, forms, notices, applications and other documents to be filed with any government or governmental or regulatory body on behalf of the Company, (C) any certificates, forms, notices, applications and other documents that may be necessary or advisable in connection with any bank account of the Company, and all checks, notes, drafts and other documents that may be required in connection with any such bank account or any banking facilities or services that may be utilized by the Company, (D) resolutions with respect to any of the foregoing matters (which resolutions, when executed by any person authorized as provided in this Section 16(a), each acting individually, shall be deemed to have been adopted by the Member or the Company, as applicable, for all purposes), and (E) any amendments, restatements and/or supplements of any of the foregoing.
The authority granted to any person in this Section 16(b) may be revoked at any time by the Member by an instrument in writing signed by the Member.
3
17. Officers. The Member may delegate its authority to act on behalf of the Company and to manage the business affairs of the Company to one or more officers of the Company appointed by the Member. The Member may from time to time create offices of the Company, designate the powers that may be exercised by such office, and appoint, authorize and empower any person as an officer of the Company (“Officer”) to direct such office. The Member may remove any Officer at any time and may create, empower and appoint such other Officers of the Company as the Member may deem necessary or advisable to manage the day-to- day business affairs of the Company. To the extent delegated by the Member, the Officers shall have the authority to act on behalf of, bind and execute and deliver documents in the name of and on behalf of the Company. No such delegation shall cause the Member to cease to be a member. Except as otherwise expressly provided in this Agreement or required by any non-waivable provision of the Act or other applicable law, no person other than the Member and such Officers designated by the Member shall have any right, power, or authority to transact any business in the name of the Company or to act for or on behalf of or to bind the Company.
18. Exculpation; Indemnification.
(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise subject to or involved in any claim, demand, action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she is or was a Member, director or an Officer of the Company or is or was serving at the request of the Company as a Member, director or Officer, of another company or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a Member, director or Officer or in any other capacity while serving as a Member, director, Officer, employee or agent, shall be indemnified by the Company to the fullest extent permitted or required by the Act and any other applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith (“Indemnifiable Losses”); provided, however, that, except as provided in Section 18(d) of this Agreement with respect to Proceedings to enforce rights to indemnification, the Company shall indemnify any such Indemnitee pursuant to this Section 18(a) in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Member.
(b) Right to Advancement of Expenses. The right to indemnification conferred by Section 18(a) shall include the right to advancement by the Company of any and all expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any such Proceeding in advance of its final disposition (an “Advancement of Expenses”); provided, however, that, if the Act so requires, an Advancement of Expenses incurred by an Indemnitee in his or her capacity as a Member, director or Officer (and not in any other capacity in which service was or is rendered by such Indemnitee, including without limitation service to an employee benefit plan) shall be made pursuant to this Section 18(b) only upon delivery to the Company of an undertaking (an “Undertaking’”), by or on behalf of such Indemnitee, to repay,
4
without interest, all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such Indemnitee is not entitled to be indemnified for such expenses under this Section 18(b). An Indemnitee’s right to an Advancement of Expenses pursuant to this Section 18(b) is not subject to the satisfaction of any standard of conduct and is not conditioned upon any prior determination that Indemnitee is entitled to indemnification under Section 18(a) with respect to the related Proceeding or the absence of any prior determination to the contrary.
(c) Contract Rights. The rights to indemnification and to the Advancement of Expenses conferred in Section 18(a) and Section 18(b) shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a Member, director, Officer, employee or agent and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
(d) Right of Indemnitee to Bring Suit. If a claim under Section 18(a) or Section 18(b) is not paid in full by the Company within 60 calendar days after a written claim has been received by the Company, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be 20 calendar days, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to the fullest extent permitted or required by the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader reimbursements of prosecution or defense expenses than such law permitted the Company to provide prior to such amendment), to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and (b) any suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Company shall be entitled to recover such expenses, without interest, upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in the Act. Neither the failure of the Company (including the Member or independent legal counsel) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the Act, nor an actual determination by the Company (including the Member or independent legal counsel) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by an Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by the Company to recover an Advancement of Expenses hereunder pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, shall be on the Company.
(e) Non-Exclusive of Rights. The rights to indemnification and to the Advancement of Expenses conferred in Section 18(a) and Section 18(b) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Certificate, this Agreement, agreement, vote of Members or disinterested directors or otherwise. Nothing
5
contained in this Agreement shall limit or otherwise affect any such other right or the Company’s power to confer any such other right.
(f) Insurance. The Company may maintain insurance, at its expense, to protect itself and any Member, director, Officer, employee or agent of the Company or another company, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Act.
(g) No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment to an Indemnitee in respect of any Indemnifiable Losses to the extent that the Indemnitee has otherwise actually received payment (net of any expenses incurred in connection therewith and any repayment by the Indemnitee made with respect thereto) under any insurance policy or from any other source in respect of such Indemnifiable Losses.
19. Banking Matters. The Member and any Officer and any agent or employee of the Company, or other person designated by the Member or such Officer is hereby authorized and empowered (a) to (i) establish one or more domestic or international accounts (including but not limited to, depository, checking, disbursement, custodian, or investment accounts, and other accounts as deemed necessary or expeditious for business purposes of the Company) (“Accounts”), in the name of the Company with any bank, trust company, savings and loan institution, brokerage firm or other financial institution which the Member or said Officer shall from time to time designate as a depository of funds, securities or other property of the Company, for any purpose and on terms and conditions deemed appropriate by such person on behalf of the Company; and (ii) close Accounts of the Company now or hereafter established; and (b) to assign, limit or revoke any and all authority of any agent or employee of the Company, or other person designated by the Member or such Officer to (i) sign checks, drafts and orders for the payment of money drawn on the Company’s Accounts, and all notes of the Company and all acceptances and endorsements of the Company; (ii) execute or initiate electronic fund transfers; (iii) execute or initiate foreign currency exchange transactions; (iv) execute or initiate the investment of monies; and (v) initiate requests for information for any Account of the Company.
20. Transfer of Interests. Notwithstanding anything to the contrary set forth herein, the Member shall be permitted to assign, convey, exchange, pledge, grant, hypothecate or transfer all or a portion of its membership interests, including all economic rights, voting and control rights and status rights as a member. Without limiting the foregoing, upon the sale, transfer, assignment or other disposition of all or a portion of the Member’s membership interests pursuant to a valid exercise of a remedy by any pledgee in accordance with a pledge agreement, security agreement or other collateral documentation entered into by the Member, the pledgee (or its designee) shall have the right (but not the obligation) to become a member hereunder and shall acquire all right, title and interest of the Member, whether voting, economic or otherwise and including all rights hereunder, and the Member shall be withdrawn and shall have no further right, title or interest hereunder.
21. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware.
6
[Signature Page Follows]
7
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the date first written above.
| MISONIX, LLC | ||||
| By: Bioventus Inc., its sole member | ||||
| By: | /s/ Anthony D’Adamio | |||
| Name: | Anthony D’Adamio | |||
| Title: | General Counsel | |||
| BIOVENTUS INC. | ||||
| By: | /s/ Anthony D’Adamio | |||
| Name: | Anthony D’Adamio | |||
| Title: | General Counsel | |||
Signature Page to Misonix, LLC Limited Liability Company Agreement
Document and Entity Information |
Oct. 29, 2021 |
|---|---|
| Cover [Abstract] | |
| Amendment Flag | false |
| Entity Central Index Key | 0000880432 |
| Current Fiscal Year End Date | --06-30 |
| Document Type | 8-K |
| Document Period End Date | Oct. 29, 2021 |
| Entity Registrant Name | MISONIX, INC. |
| Entity Incorporation State Country Code | DE |
| Entity File Number | 001-10986 |
| Entity Tax Identification Number | 84-1856018 |
| Entity Address, Address Line One | 1938 New Highway |
| Entity Address, City or Town | Farmingdale |
| Entity Address, State or Province | NY |
| Entity Address, Postal Zip Code | 11735 |
| City Area Code | (631) |
| Local Phone Number | 694-9555 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Entity Emerging Growth Company | false |
| Security 12b Title | Common Shares, $0.0001 par value |
| Trading Symbol | MSON |
| Security Exchange Name | NASDAQ |