<PAGE>
As filed with the Securities and Exchange Commission on March 21, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------------
MISONIX, INC.
(Exact name of registrant as specified in its charter)
New York 11-2148932
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1938 New Highway, Farmingdale, New York 11747
(Address of Principal Executive Offices) (Zip Code)
1996 EMPLOYEE INCENTIVE STOCK OPTION PLAN
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
Joseph Librizzi, President
MISONIX, INC.
1938 New Highway
Farmingdale, New York 11735
(Name and address of agent for service)
(516) 694-9555
(Telephone number, including area code, of agent for service)
-------------------------------
Copy to:
Edward I. Tishelman, Esq.
Hartman & Craven LLP
460 Park Avenue
New York, New York 10022
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum Amount of
Title of Amount to be offering price aggregate registration
securities to be registered registered per unit(1) offering price(1) fee
--------------------------- --------------- -------------- ----------------- -------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share ....... 1,050,000 shares $8.13 $4,798,830.00 $1,454.20
============================================ ================= =============== ================== =============
</TABLE>
(1) Based on a per share exercise price of (i) $1.10 for 519,000 shares;
(ii) $6.00 for 50,000 shares; and (iii) $9.00 for 20,000 shares. The
balance of the shares are exercisable at $8.13 per share, which price
is estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) and (h) under the Securities Act of
1933, as amended. The $8.13 price per share is estimated based on the
average of the high and low bid prices for MISONIX, INC.'s Common Stock
on March 18, 1997, as reported by the National Association of
Securities Dealers' Automated Quotation System.
<PAGE>
EXPLANATORY NOTE
The Form S-8 Reoffer Prospectus may be utilized for reofferings of
Common Stock acquired by certain directors of the Company through participation
in the 1996 Non-Employee Director Stock Option Plan.
<PAGE>
REOFFER PROSPECTUS
MISONIX, INC.
509,000 SHARES
COMMON STOCK
This Prospectus relates to the offer and sale of 509,000 shares (the
"Shares") of common stock, $.01 par value per share (the "Common Stock"), of
MISONIX, INC. (the "Company" or "Registrant"), issued to certain shareholders of
the Company (the "Selling Shareholders") pursuant to grants made under the
Company's 1996 Non-Employee Director Stock Option Plan (the "Directors' Plan").
Such Shares may be offered and sold, from time to time, on the over-the-counter
market or such other national securities exchange upon which the Common Stock is
traded at the time of such sales, at prices prevailing at the time of such
sales, or in negotiated transactions. The Company will not receive any proceeds
from the sale of the Shares. See "Plan of Distribution."
The Common Stock of the Company is quoted on the NASDAQ Small-Cap Market system
("NASDAQ") and on the Boston Stock Exchange ("BSE") under the symbols "MSON"
for NASDAQ and "MSO" on the BSE. On March 18, 1997, the reported closing sale
price of the Shares on NASDAQ was $8 1/8.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------------------
No person has been authorized to give any information or make any
representation other than is contained in this Prospectus, and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or any Selling Stockholder. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any security
offered hereby in any jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such jurisdiction. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Company
since the date hereof or that the information contained herein is correct as of
any time subsequent to such date.
----------------------------------
The date of this Prospectus is March 21, 1997.
<PAGE>
TABLE OF CONTENTS
Available Information..................................... 3
The Company............................................... 4
Selling Stockholders...................................... 4
Plan of Distribution...................................... 4
Incorporation of Certain Documents by Reference........... 5
Other Matters............................................. 5
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Shares offered hereby. This Prospectus does not contain all of the information
set forth in the Registration Statement. For further information, reference is
made to the Registration Statement and to the exhibits filed therewith. Each
statement made in this Prospectus referring to a document filed as an exhibit to
the Registration Statement or incorporated herein by reference is qualified by
reference to such document.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Commission.
Reports, proxy and information statements and other information filed by the
Company can be inspected and copied at public reference facilities maintained by
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, in
Washington, D.C. 20549, and at the Commission's Regional Offices located at
Seven World Trade Center, Suite 1300, New York, New York 10048, and 500 West
Madison Avenue, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
also maintains a site on the World Wide Web, the address of which is
http://www.sec.gov, that contains reports, proxy and information statements and
other information regarding issuers, such as the Company, that file
electronically with the Commission.
The Common Stock of the Company is quoted on NASDAQ and on the BSE
under the symbols "MSON" for NASDAQ and "MSO" on the BSE. Reports, proxy and
information statements and other information filed by the Company with the
Commission can be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
The Company will promptly furnish, without charge, to each person to
whom this Prospectus is delivered, upon written or oral request of such person,
a copy of any and all of the information that has been incorporated by reference
in this Prospectus (other than exhibits to such information, unless such
exhibits are specifically incorporated by reference into such information).
Requests for such copies should be directed to MISONIX, INC., 1938 New Highway,
Farmingdale, New York 11735, Attn: Peter Gerstheimer, telephone number (516)
694-9555.
3
<PAGE>
THE COMPANY
The Company is a corporation formed under the laws of the State of New
York with its principal executive office located at 1938 New Highway,
Farmingdale, New York 11735. The telephone number of such office is (516)
694-9555.
SELLING STOCKHOLDERS
Non-employee directors selected by the Board of Directors of the
Company are eligible to participate in the Directors' Plan. As such, the Selling
Shareholders consist of such participants listed below who may offer up to an
aggregate of 509,000 shares of Common Stock which have been acquired by them
pursuant to grants made under the Plan. There can be no assurance that any of
the Selling Shareholders will offer for sale or sell any or all of the Shares
covered by this Prospectus.
The following is a list, as of March 21, 1997, of the Selling
Shareholders and the number of shares held by each such Selling Shareholder:
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF NUMBER OF PERCENTAGE
SHARES OWNED SHARES SHARES OWNED OF CLASS
POSITION WITH PRIOR TO THE OFFERED AFTER THE OWNED AFTER
NAME THE COMPANY OFFERING HEREBY OFFERING THE OFFERING(1)
- - --------------------- ------------------- ------------------ ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Gary Gelman Chairman of the 718,930(2) 459,000 259,930 6.18%
Board of Directors
Howard Alliger Director 721,072(3) 50,000 671,072 15.95%
===================== =================== ================== ================ =============== ================
</TABLE>
- - -------------------------------
(1) Assuming all shares offered hereby are sold and based on the aggregate
of (i) 3,699,436 shares issued and outstanding at February 28, 1997 and
(ii) the 509,000 shares issuable upon exercise of the options held by
the Selling Shareholders.
(2) Includes vested and exercisable options to purchase 459,000 shares of
Common Stock which options were granted pursuant to the Directors'
Plan.
(3) Includes vested and exercisable options to purchase 50,000 shares of
Common Stock which options were granted pursuant to the Directors'
Plan.
4
<PAGE>
PLAN OF DISTRIBUTION
The Selling Shareholders may, from time to time, offer all or part of
the Shares on the over-the-counter market or such other national securities
exchange upon which the Common Stock is traded at the time of such sales, at
prices prevailing at the time of such sales, or in negotiated transactions. The
Company will pay all expenses in preparing and reproducing the Registration
Statement of which this Prospectus is a part, but will not receive any part of
the proceeds of any sales of such Shares. In addition, any securities covered by
this Prospectus which qualify for sale pursuant to Rule 144 promulgated under
the Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus. The Selling Stockholders will pay the brokerage commissions charged
to sellers in connection with any such sales.
The Company and the Selling Shareholders may enter into customary
agreements concerning indemnification and the provision of information in
connection with the sale of the Shares.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant are
hereby incorporated by reference in this Prospectus:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1996, as filed with the Commission on September
30, 1996.
(b) The Company's Form 10-QSB for the quarter ended September 30,
1996, as filed with the Commission on November 12, 1996, Form
10-QSB for the quarter ended December 31, 1996, as filed with
the Commission on February 13, 1997, and Current Report on
Form 8-K, as filed with the Commission on February 11, 1997.
(c) The description of the Company's Common Stock contained in
the Registrant's Registration Statement on Form 8-A
(Registration No. 1-10986) filed with the Commission on
January 22, 1992 under Section 12 of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, after the date hereof and prior to the
termination of the offering shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
OTHER MATTERS
Section 722 of the New York Business Corporation Law ("NYBCL") permits,
in general, a New York corporation to indemnify any person made, or threatened
to be made, a party to an action or proceeding by reason of the fact that he or
she was a director or officer of the corporation, or served another entity in
any capacity at the request of the corporation, against any
5
<PAGE>
judgment, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such person acted in good faith, for a
purpose he or she reasonably believed to be in, or, in the case of service for
another entity, not opposed to, the best interests of the corporation and, in
criminal actions or proceedings, in addition had no reasonable cause to believe
that his or her conduct was unlawful. Section 723 of the NYBCL permits the
corporation to pay in advance of a final disposition of such action or
proceeding the expenses incurred in defending such action or proceeding upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount as, and to the extent, required by statute. Section 721 of the NYBCL
provides that indemnification and advancement of expense provisions contained in
the NYBCL shall not be deemed exclusive of any rights to which a director or
officer seeking indemnification or advancement of expenses may be entitled,
provided no indemnification may be made on behalf of any director or officer if
a judgment or other final adjudication adverse to the director or officer
establishes that his or her acts were committed in bad faith or were the result
of active or deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled.
Article Seventh of the Company's Certificate of Incorporation provides,
in general, that the Company may indemnify, to the fullest extent permitted by
applicable law, every person threatened to be made a party to any action, suit
or proceeding by reason of the fact that such person is or was an officer or
director or was serving at the request of the Company as a director, officer,
employee, agent or trustee of another corporation, business, partnership, joint
venture, trust, employee benefit plan, or other enterprise, against expenses,
judgments, fines and amounts paid in settlement in connection with such suit or
proceeding. Article Seventh of the Certificate of Incorporation also provides
that the Company may indemnify and advance expenses to those persons as
authorized by resolutions of a majority of the Board of Directors or
stockholders, agreement, directors' or officers' liability insurance policies,
or any other form of indemnification agreement.
In accordance with that provision of the Certificate of Incorporation,
the Company shall indemnify any officer or director (including officers and
directors serving another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the Company's
request) made, or threatened to be made, a party to an action or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he or she was serving in any of those capacities against judgments, fines,
amounts paid in settlement and reasonable expenses (including attorney's fees)
incurred as a result of such action or proceeding. Indemnification would not be
available under Article Seventh of the Certificate of Incorporation if a
judgment or other final adjudication adverse to such director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, or (ii) he or she personally gained in fact
a financial profit or other advantage to which he or she was not legally
entitled. Article Seventh of the Certificate of Incorporation further stipulates
that the rights granted therein are contractual in nature.
6
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions and agreements, the Company has been
informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
7
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by MISONIX, INC. (the "Registrant") are hereby
incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1996, as filed with the Commission on
September 30, 1996;
(b) The Registrant's Form 10-QSB for the quarter ended September
30, 1996, as filed with the Commission on November 12, 1996,
Form 10-QSB for the quarter ended December 31, 1996, as filed
with the Commission on February 13, 1997, and Current Report
on Form 8-K, as filed with the Commission on February 11,
1997;
(c) The description of the Registrant's common stock, $0.01 par
value (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A (Registration No. 1-10986)
filed with the Commission on January 22, 1992 under Section 12
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment to the Registration Statement which
indicates that all the securities offered hereby have been sold, or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof commencing on the respective dates on which such documents are filed.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
8
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 722 of the New York Business Corporation Law ("NYBCL") permits,
in general, a New York corporation to indemnify any person made, or threatened
to be made, a party to an action or proceeding by reason of the fact that he or
she was a director or officer of the corporation, or served another entity in
any capacity at the request of the corporation, against any judgment, fines,
amounts paid in settlement and reasonable expenses, including attorney's fees
actually and necessarily incurred as a result of such action or proceeding, or
any appeal therein, if such person acted in good faith, for a purpose he or she
reasonably believed to be in, or, in the case of service for another entity, not
opposed to, the best interests of the corporation and, in criminal actions or
proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. Section 723 of the NYBCL permits the corporation to pay in
advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 721 of the NYBCL provides that
indemnification and advancement of expense provisions contained in the NYBCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled, provided no
indemnification may be made on behalf of any director or officer if a judgment
or other final adjudication adverse to the director or officer establishes that
his or her acts were committed in bad faith or were the result of active or
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Article Seventh of the Registrant's Certificate of Incorporation
provides, in general, that the Registrant may indemnify, to the fullest extent
permitted by applicable law, every person threatened to be made a party to any
action, suit or proceeding by reason of the fact that such person is or was an
officer or director or was serving at the request of the Registrant as a
director, officer, employee, agent or trustee of another corporation, business,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against expenses, judgments, fines and amounts paid in settlement in connection
with such suit or proceeding. Article Seventh of the Certificate of
Incorporation also provides that the Registrant may indemnify and advance
expenses to those persons as authorized by resolutions of a majority of the
Board of Directors or shareholders, agreement, directors' or officers' liability
insurance policies, or any other form of indemnification agreement.
In accordance with that provision of the Certificate of Incorporation,
the Registrant shall indemnify any officer or director (including officers and
directors serving another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity at the Registrant's
request) made, or threatened to be made, a party to an action or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he or she was serving in any of those capacities against judgments, fines,
amounts paid in settlement and reasonable expenses (including attorney's fees)
incurred as a result of such action or proceeding. Indemnification would not be
available under Article Seventh of the Certificate of Incorporation if a
judgment or other final adjudication adverse to such director or officer
establishes that (i) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and,
9
<PAGE>
in either case, were material to the cause of action so adjudicated, or (ii) he
or she personally gained in fact a financial profit or other advantage to which
he or she was not legally entitled. Article Seventh of the Certificate of
Incorporation further stipulates that the rights granted therein are contractual
in nature.
At present, there is no pending litigation or other proceeding
involving a director or officer 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.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 1996 Employee Incentive Stock Option Plan.
4.2 1996 Non-Employee Director Stock Option Plan.
5 Opinion of Hartman & Craven LLP regarding legality of the
Common Stock being registered.
23.1 Consent of Hartman & Craven LLP (included in their
opinion filed as Exhibit 5).
23.2 Consent of Ernst & Young LLP.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes to:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in the information in the Registration
Statement; and
(iii) Include any additional or changed material
information on the plan of distribution.
10
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) For determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Farmingdale, State of New York, on March 21, 1997.
MISONIX, INC.
By: /s/Joseph Librizzi
------------------------
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Gary Gelman Chairman of the Board of March 21, 1997
- - -------------------- Directors
Gary Gelman
/s/ Joseph Librizzi President, Chief Executive March 21, 1997
- - --------------------- Officer, and Director
Joseph Librizzi (principal executive officer)
/s/ Peter Gerstheimer Vice President and Chief March 21, 1997
- - --------------------- Financial Officer
Peter Gerstheimer (principal financial
and accounting officer)
/s/ Howard Alliger Director March 21, 1997
- - ------------------
Howard Alliger
/s/ Arthur Gerstenfeld Director March 21, 1997
- - ----------------------
Arthur Gerstenfeld
12
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- - ----------- ----------- ----
4.1 1996 Employee Incentive Stock Option Plan 13
4.2 1996 Non-Employee Director Stock Option Plan 22
5 Opinion of Hartman & Craven LLP regarding
legality of the Common Stock being registered 29
23.1 Consent of Hartman & Craven LLP (included in
their opinion filed as Exhibit 5) 31
23.2 Consent of Ernst & Young LLP 32
13
<PAGE>
EXHIBIT 4.1
1996 EMPLOYEE INCENTIVE STOCK OPTION PLAN
of
MISONIX, INC.
1. PURPOSES OF THE PLAN.
This stock option plan (the "Plan") is designed to provide an incentive
to key employees (including directors and officers who are key
employees) of MISONIX, INC., a New York corporation (the "Company"),
and its present and future subsidiary corporations, as defined in
Paragraph 19 ("Subsidiaries"), and to offer an additional inducement in
obtaining the services of such individuals. The Plan provides for the
grant of "incentive stock options" ("ISOs") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), but the Company makes no warranty as to the qualification of
any option as an "incentive stock option" under the Code.
2. STOCK SUBJECT TO THE PLAN.
Subject to the provisions of Paragraph 12, the aggregate number of
shares of Common Stock, $.01 par value per share, of the Company
("Common Stock") for which options may be granted under the Plan shall
not exceed 300,000. Such shares of Common Stock may, in the discretion
of the Board of Directors of the Company (the "Board of Directors"),
consist either in whole or in part of authorized but unissued shares of
Common Stock or shares of Common Stock held in the treasury of the
Company. The Company shall at all times during the term of the Plan
reserve and keep available such number of shares of Common Stock as
will be sufficient to satisfy the requirements of the Plan. Subject to
the provisions of Paragraph 13, any shares of Common Stock subject to
an option which for any reason expires, is canceled or is terminated
unexercised or which ceases for any reason to be exercisable shall
again become available for the granting of options under the Plan.
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a committee of the Board of Directors
(the "Committee") consisting of not less than three Directors, each of
whom shall be a "Non-Employee Director" within the meaning of Rule
16b-3 (or any successor rule or regulation) promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). A
majority of the members of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting at which a
quorum is present, and any acts approved in writing by all members
without a meeting, shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee shall have
the authority, in its sole discretion, to determine the key employees
who shall receive options; the times when they shall receive options;
the number of shares of Common Stock to be subject to
14
<PAGE>
each option; the term of each option; the date each option shall become
exercisable; whether an option shall be exercisable in whole, in part
or in installments, and, if in installments, the number of shares of
Common Stock to be subject to each installment; whether the
installments shall be cumulative; the date each installment shall
become exercisable and the term of each installment; whether to
accelerate the date of exercise of any installment; whether shares of
Common Stock may be issued on exercise of an option as partly paid,
and, if so, the dates when future installments of the exercise price
shall become due and the amounts of such installments; the exercise
price of each option; the form of payment of the exercise price; the
amount, if any, necessary to satisfy the Company's obligation to
withhold taxes; whether to restrict the sale or other disposition of
the shares of Common Stock acquired upon the exercise of an option and
to waive any such restriction; whether to subject the exercise of all
or any portion of an option to the fulfillment of contingencies as
specified in the contract referred to in Paragraph 11 (the "Contract"),
including, without limitation, contingencies relating to entering into
a covenant not to compete with the Company and its Parent and
Subsidiaries, to financial objectives for the Company, a Subsidiary, a
division, a product line or other category, and/or the period of
continued employment of the optionee with the Company, its Parent or
its Subsidiaries, and to determine whether such contingencies have been
met; to construe the respective Contracts and the Plan; with the
consent of the optionee, to cancel or modify an option, provided such
option as modified would be permitted to be granted on such date under
the terms of the Plan; to prescribe, amend and rescind rules and
regulations relating to the Plan; and to make all other determinations
necessary or advisable for administering the Plan. The determinations
of the Committee on the matters referred to in this Paragraph 3 shall
be conclusive.
4. ELIGIBILITY.
The Committee may, consistent with the purposes of the Plan, grant
options from time to time, to key employees (including directors and
officers who are key employees) of the Company or any of its
Subsidiaries. Options granted shall cover such number of shares of
Common Stock as the Committee may determine; provided, however, that
the aggregate market value (determined at the time the option is
granted) of the shares of Common Stock for which any eligible person
may be granted ISOs under the Plan or any other plan of the Company, or
of a Parent or a Subsidiary of the Company, which are exercisable for
the first time by such optionee during any calendar year shall not
exceed $100,000. The $100,000 ISO limitation shall be applied by taking
ISOs into account in the order in which they were granted. Any option
(or the portion thereof) granted in excess of such amount shall be
treated as a nonqualified stock option.
15
<PAGE>
5. EXERCISE PRICE.
The exercise price of the shares of Common Stock under each option
shall be determined by the Committee; provided, however, that the
exercise price shall not be less than 100% of the fair market value of
the Common Stock subject to such option on the date of grant; and
further provided, that if, at the time an ISO is granted, the optionee
owns (or is deemed to own under Section 424(d) of the Code) stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company, of any of its Subsidiaries or of a
Parent, the exercise price of such ISO shall not be less than 110% of
the fair market value of the Common Stock subject to such ISO on the
date of grant.
The fair market value of the Common Stock on any day shall be (a) if
the principal market for the Common Stock is a national securities
exchange, the average between the high and low sales prices of the
Common Stock on such day as reported by such exchange or on a
consolidated tape reflecting transactions on such exchange, (b) if the
principal market for the Common Stock is not a national securities
exchange and the Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ"), and (i) if
actual sales price information is available with respect to the Common
Stock, the average between the high and low sales prices of the Common
Stock on such day on NASDAQ, or (ii) if such information is not
available, the average between the highest bid and the lowest asked
prices for the Common Stock on such day on NASDAQ, or (c) if the
principal market for the Common Stock is not a national securities
exchange and the Common Stock is not quoted on NASDAQ, the average
between the highest bid and lowest asked prices for the Common Stock on
such day as reported on the NASDAQ OTC Bulletin Board Service or by
National Quotation Bureau, Incorporated or a comparable service;
provided that if clauses (a), (b) and (c) of this Paragraph are all
inapplicable, or if no trades have been made or no quotes are available
for such day, the fair market value of the Common Stock shall be
determined by the Committee by any method consistent with applicable
regulations adopted by the Treasury Department relating to stock
options. The determination of the Committee shall be conclusive in
determining the fair market value of the Common Stock.
6. TERM.
The term of each option granted pursuant to the Plan shall be such term
as is established by the Committee, in its sole discretion, at or
before the time such option is granted; provided, however, that the
term of each option granted pursuant to the Plan shall be for a period
not exceeding 10 years from the date of grant thereof, and further,
provided, that if, at the time an option is granted, the optionee owns
(or is deemed to own under Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of
stock of the Company, of any of its Subsidiaries or of a Parent, the
term of the option shall be for a period not exceeding five years from
the date of grant. Options shall be subject to earlier termination as
hereinafter provided.
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7. EXERCISE.
An option (or any part or installment thereof), to the extent then
exercisable, shall be exercised by giving written notice to the Company
at its principal office (at present 1938 New Highway, Farmingdale, New
York 11735, Attn: Employee Stock Option Committee), stating which
option is being exercised, specifying the number of shares of Common
Stock as to which such option is being exercised and accompanied by
payment in full of the aggregate exercise price therefor (or the amount
due on exercise if the Contract permits installment payments) (a) in
cash or by certified check or (b) if the Contract (at the time of
grant) so permits, with previously acquired shares of Common Stock
having an aggregate fair market value, on the date of exercise, equal
to the aggregate exercise price of all options being exercised, or with
any combination of cash, certified check or shares of Common Stock.
A person entitled to receive Common Stock upon the exercise of an
option shall not have the rights of a shareholder with respect to such
shares of Common Stock until the date of issuance of a stock
certificate to him for such shares; provided, however, that until such
stock certificate is issued, any option holder using previously
acquired shares of Common Stock in payment of an option exercise price
shall continue to have the rights of a shareholder with respect to such
previously acquired shares.
In no case may a fraction of a share of Common Stock be purchased or
issued under the Plan.
8. TERMINATION OF EMPLOYMENT.
Any holder of an option whose employment with the Company (and its
Parent and Subsidiaries) has terminated for any reason other than his
death or Disability (as defined in Paragraph 19) may exercise such
option, to the extent exercisable on the date of such termination, at
any time within 90 days after the date of termination, but not
thereafter and in no event after the date the option would otherwise
have expired; provided, however, that if his employment shall be
terminated either (a) for cause, or (b) without the consent of the
Company, said option shall terminate immediately. Options granted under
the Plan shall not be affected by any change in the status of the
holder so long as he continues to be a full-time employee of the
Company, its Parent or any of its Subsidiaries (regardless of having
been transferred from one corporation to another).
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and a corpo ration if, at the
time of the determination, the individual was an employee of such
corporation for purposes of Section 422(a) of the Code. As a result, an
individual on military, sick leave or other bona fide leave of absence
shall continue to be considered an employee for purposes of the Plan
during such leave if the period of the leave does not exceed 90 days,
or, if longer, so long as the individual's right to reemployment with
the Company (or a related corporation) is guaranteed either by statute
or by contract. If the period of leave exceeds 90 days and the
individual's right to re-
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employment is not guaranteed by statute or by contract, the employment
relationship shall be deemed to have terminated on the 91st day of such
leave.
Nothing in the Plan or in any option granted under the Plan shall
confer on any individual any right to continue in the employ of the
Company, its Parent or any of its Subsidiaries, or interfere in any way
with the right of the Company, its Parent or any of its Subsidiaries to
terminate the employee's employment at any time for any reason
whatsoever without liability to the Company, its Parent or any of its
Subsidiaries.
9. DEATH OR DISABILITY OF AN OPTIONEE.
If an optionee dies (a) while he is employed by the Company, its Parent
or any of its Subsidiaries, (b) within 90 days after the termination of
his employment (unless such termination was for cause or without the
consent of the Company) or (c) within one year following the
termination of his employment by reason of Disability, the option may
be exercised, to the extent exercisable on the date of his death, by
his executor, administrator or other person at the time entitled by law
to his rights under such option, at any time within one year after
death, but not thereafter and in no event after the date the option
would otherwise have expired.
Any optionee whose employment has terminated by reason of Disability
may exercise his option, to the extent exercisable upon the effective
date of such termination, at any time within one year after such date,
but not thereafter and in no event after the date the option would
otherwise have expired.
10. COMPLIANCE WITH SECURITIES LAWS.
The Committee may require, in its discretion, as a condition to the
exercise of any option that either (a) a Registration Statement under
the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Common Stock to be issued upon such exercise
shall be effective and current at the time of exercise, or (b) there is
an exemption from registration under the Securities Act for the
issuance of shares of Common Stock upon such exercise. Nothing herein
shall be construed as requiring the Company to register shares subject
to any option under the Securities Act.
The Committee may require the optionee to execute and deliver to the
Company his representation and warranty, in form and substance
satisfactory to the Committee, that the shares of Common Stock to be
issued upon the exercise of the option are being acquired by the
optionee for his own account, for investment only and not with a view
to the resale or distribution thereof. In addition, the Committee may
require the optionee to represent and warrant in writing that any
subsequent resale or distribution of shares of Common Stock by such
optionee will be made only pursuant to (i) a Registration Statement
under the Securities Act which is effective and current with respect to
the shares of Common Stock being sold, or (ii) a specific exemption
from the registration requirements of the Securities Act, but in
claiming such exemption, the optionee shall prior to any offer of sale
or sale of such shares of Common Stock provide the Company with a
favorable written
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opinion of counsel, in form and substance satisfactory to the Company,
as to the applicability of such exemption to the proposed sale or
distribution.
In addition, if at any time the Committee shall determine in its
discretion that the listing or qualification of the shares of Common
Stock subject to such option on any securities exchange or under any
applicable law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to, or in
connection with, the granting of an option or the issue of shares of
Common Stock thereunder, such option may not be exercised in whole or
in part unless such listing, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to
the Committee.
11. STOCK OPTION CONTRACTS.
Each option shall be evidenced by an appropriate Contract which shall
be duly executed by the Company and the optionee, and shall contain
such terms and conditions not inconsistent herewith as may be
determined by the Committee.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
Notwithstanding any other provisions of the Plan, in the event of any
change in the outstanding Common Stock by reason of a stock dividend,
recapitalization, merger or consolidation in which the Company is the
surviving corporation, split-up, combination or exchange of shares or
the like, the aggregate number and kind of shares subject to the Plan,
the aggregate number and kind of shares subject to each outstanding
option and the exercise price thereof shall be appropriately adjusted
by the Board of Directors, whose determination shall be conclusive.
In the event of (a) the liquidation or dissolution of the Company, (b)
a merger or consolidation in which the Company is not the surviving
corporation, or (c) any other capital reorganization in which more than
50% of the shares of Common Stock of the Company entitled to vote are
exchanged, any outstanding options shall vest in their entirety and
become exercisable within the period of thirty (30) days commencing
upon the date of the action of the shareholders (or the Board of
Directors if shareholders' action is not required) is taken to approve
the transaction and upon the expiration of that period all options and
all rights thereto shall automatically terminate, unless other
provision is made therefor in the transaction.
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13. AMENDMENTS AND TERMINATION OF THE PLAN.
The Plan was adopted by the Board of Directors on March 27, 1996. No
option may be granted under the Plan after March 26, 2006. The Board of
Directors, without further approval of the Company's shareholders, may
at any time suspend or terminate the Plan, in whole or in part, or
amend it from time to time in such respects as it may deem advisable,
including, without limitation, in order that options granted hereunder
meet the requirements for "incentive stock options" under the Code, to
comply with applicable requirements of the Securities Act and the
Exchange Act, and to conform to any change in applicable law or to
regulations or rulings of administrative agencies; provided, how ever,
that no amendment shall be effective without the requisite prior or
subsequent shareholder approval which would (a) except as contemplated
in Paragraph 12, increase the maximum number of shares of Common Stock
for which options may be granted under the Plan, (b) materially
increase the benefits to participants under the Plan or (c) change the
eligibility requirements for individuals entitled to receive options
hereunder. No termination, suspension or amendment of the Plan shall,
without the consent of the holder of an existing option affected
thereby, adversely affect his rights under such option. The power of
the Committee to construe and administer any options granted under the
Plan prior to the termination or suspension of the Plan nevertheless
shall continue after such termination or during such suspension.
14. NON-TRANSFERABILITY OF OPTIONS.
No option granted under the Plan shall be transferable otherwise than
by will or the laws of descent and distribution or a qualified domestic
relations order ("QDRO") as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the
rules thereunder, and options may be exercised, during the lifetime of
the holder thereof, only by him or his legal representatives or
pursuant to a QDRO. Except to the extent provided above, options may
not be assigned, transferred, pledged, hypothecated or disposed of in
any way (whether by operation of law or otherwise) and shall not be
subject to execution, attachment or similar process.
15. WITHHOLDING TAXES.
The Company may withhold cash and/or shares of Common Stock to be
issued with respect thereto having an aggregate fair market value equal
to the amount which it determines is necessary to satisfy its
obligation to withhold Federal, state and local income taxes or other
taxes incurred by reason of the grant or exercise of an option, its
disposition, or the disposition of the underlying shares of Common
Stock. Alternatively, the Company may require the holder to pay to the
Company such amount, in cash, promptly upon demand. The Company shall
not be required to issue any shares of Common Stock pursuant to any
such option until all required payments have been made. Fair market
value of the shares of Common Stock shall be determined in accordance
with Paragraph 5.
16. LEGENDS; PAYMENT OF EXPENSES.
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The Company may endorse such legend or legends upon the certificates
for shares of Common Stock issued upon exercise of an option under the
Plan and may issue such "stop transfer" instructions to its transfer
agent in respect of such shares as it determines, in its discretion, to
be necessary or appropriate to (a) prevent a violation of, or to
perfect an exemption from, the registration requirements of the
Securities Act, (b) implement the provisions of the Plan or any
agreement between the Company and the optionee with respect to such
shares of Common Stock, or (c) permit the Company to determine the
occurrence of a "disqualifying disposition," as described in Section
421(b) of the Code, of the shares of Common Stock transferred upon the
exercise of an option granted under the Plan.
The Company shall pay all issuance taxes with respect to the issuance
of shares of Common Stock upon the exercise of an option granted under
the Plan, as well as all fees and expenses incurred by the Company in
connection with such issuance.
17. USE OF PROCEEDS.
The cash proceeds from the sale of shares of Common Stock pursuant to
the exercise of options under the Plan shall be added to the general
funds of the Company and used for such corporate purposes as the Board
of Directors may determine.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN CONSTITUENT
CORPORATIONS.
Anything in this Plan to the contrary notwithstanding, the Board of
Directors may, without further approval by the shareholders, substitute
new options for prior options of a Constituent Corporation (as defined
in Paragraph 19) or assume the prior options of such Constituent
Corporation.
19. DEFINITIONS.
a. Subsidiary. The term "Subsidiary" shall have the same
definition as "subsidiary corporation" in Section 424(f) of
the Code.
b. Parent. The term "Parent" shall have the same definition as
"parent corporation" in Section 424(e) of the Code.
c. Constituent Corporation. The term "Constituent Corporation"
shall mean any corporation which engages with the Company, its
Parent or any Subsidiary in a transaction to which Section
424(a) of the Code applies (or would apply if the option
assumed or substituted were an ISO), or any Parent or any
Subsidiary of such corporation.
d. Disability. The term "Disability" shall mean a permanent and
total disability within the meaning of Section 22(e)(3) of the
Code.
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20. GOVERNING LAW.
The Plan, such options as may be granted hereunder and all related
matters shall be governed by, and construed in accordance with, the
laws of the State of New York.
21. PARTIAL INVALIDITY.
The invalidity or illegality of any provision herein shall not affect
the validity of any other provision.
22. SHAREHOLDER APPROVAL.
The Plan shall be subject to approval by the holders of a majority of
the Company's stock outstanding and entitled to vote thereon at the
next meeting of its shareholders. No options granted hereunder may be
exercised prior to such approval, provided that the date of grant of
any options granted hereunder shall be determined as if the Plan had
not been subject to such approval. Notwithstanding the foregoing, if
the Plan is not approved by a vote of the shareholders of the Company
on or before March 26, 1997, the Plan and any options granted hereunder
shall terminate.
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EXHIBIT 4.2
MISONIX, INC.
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. GENERAL
1.1 Purpose Of The Plan
The purpose of the MISONIX, INC. 1996 Non-Employee Director Stock
Option Plan (the "Plan") is to enable MISONIX, INC. (the "Company") to
attract and retain persons of exceptional ability to serve as directors
of the Company and to align the interests of directors and shareholders
in enhancing the value of the Company's common stock, par value $.01
per share (the "Common Stock").
1.2 Administration Of The Plan
The Plan shall be administered by the Board of Directors (the "Board")
which shall have full and final authority in its discretion to
interpret, administer and amend the provisions of the Plan; to adopt
rules and regulations for carrying out the Plan; to decide all
questions of fact arising in the application of the Plan; and to make
all other determinations necessary or advisable for the administration
of the Plan.
1.3 Eligible Participants
Commencing March 27, 1996 each member of the Board who is not an
employee of the Company or any of its subsidiaries shall be a
participant (a "Participant") in the Plan.
1.4 Grants Under The Plan
Grants under the Plan shall be in the form of stock options as
described in Section II (an "Option" or "Options").
1.5 Shares
The aggregate number of shares of Common Stock, including shares
reserved for issuance pursuant to the exercise of Options, which may be
issued under the terms of the Plan may not exceed 750,000 shares and
hereby are reserved for such purpose. Whenever any outstanding grant or
portion thereof expires, is canceled or forfeited or is otherwise
terminated for any reason without having been exercised, the Common
Stock allocable to the expired, canceled, forfeited or otherwise
terminated portion of the grant may again be the subject of further
grants hereunder.
Notwithstanding the foregoing, the number of shares of Common Stock
available for grants at any time under the Plan shall be reduced to
such lesser amount as may be required pursuant to the methods of
calculation necessary so that the exemptions provided pursuant
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to Rule 16b-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") will continue to be available for transactions
involving all current and future grants. In addition, during the period
that any grants remain outstanding under the Plan, the Committee may
make good faith adjustments with respect to the number of shares of
Common Stock attributable to such grants for purposes of calculating
the maximum number of shares of Common Stock available for the granting
of future grants under the Plan, provided that following such
adjustments the exemptions provided pursuant to Rule 16b-3 under the
Exchange Act will continue to be available for transactions involving
all current and future grants.
1.6 Definitions
The following definitions shall apply to the Plan:
(a) "Disability" shall have the meaning Provided in the Company's
applicable disability plan or, in the absence of such a
definition, when a Participant becomes totally disabled (as
determined by a physician mutually acceptable to the
Participant and the Company) before termination of his or her
service on the Board if such total disability continues for
more than three (3) months.
(b) "Fair Market Value" of the Common Stock on any day shall be
(a) if the principal market for the Common Stock is a national
securities exchange, the average between the high and low
sales prices of the Common Stock on such day as reported by
such exchange or on a consolidated tape reflecting
transactions on such exchange, (b) if the principal market for
the Common Stock is not a national securities exchange and the
Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ"), and
(i) if actual sales price information is available with
respect to the Common Stock, the average between the high and
low sales prices of the Common Stock on such day on NASDAQ, or
(ii) if such information is not available, the average between
the highest bid and the lowest asked prices for the Common
Stock on such day on NASDAQ, or (c) if the principal market
for the Common Stock is not a national securities exchange and
the Common Stock is not quoted on NASDAQ, the average between
the highest bid and lowest asked prices for the Common Stock
on such day as reported on the NASDAQ OTC Bulletin Board
Service or by National Quotation Bureau, Incorporated or a
comparable service; provided that if clauses (a), (b) and (c)
of this Paragraph are all inapplicable, or if no trades have
been made or no quotes are available for such day, the fair
market value of the Common Stock shall be determined by the
Board by any method consistent with applicable regulations
adopted by the Treasury Department relating to stock options.
The determination of the Board shall be conclusive in
determining the fair market value of the Common Stock.
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2. OPTIONS
2.1 Terms And Conditions Of Options
Each Participant shall be granted such number of Options as determined
from time to time during the term of the Plan by the Board.
2.2 Nonqualified Stock Options
The terms of the Options shall, at the time of grant, provide that the
Options will not be treated as incentive stock options within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
2.3 Option Price
The Option price per Share shall be determined by the Board of
Directors but shall not be less than the Fair Market Value of the
Common Stock on the date the Option is granted.
2.4 Term And Exercise Of Options
(a) The term of an Option shall not exceed ten (10) years from the date
of grant. Except as provided in this Section 2.4, after a Participant
ceases to serve as a director of the Company for any reason, including,
without limitation, retirement, or any other voluntary or involuntary
termination of a Participant's service as a director (a "Termination"),
the unexercisable portion of an Option shall immediately terminate and
be null and void, and the unexercised portion of any outstanding
Options held by such Participant shall terminate and be null and void
for all purposes after three (3) months have elapsed from the date of
the Termination unless extended by the Board, in its sole discretion,
within thirty (30) days from the date of the Termination. Upon a
Termination as a result of death or Disability, any outstanding Options
may be exercised by the Participant or the Participant's legal
representative within twelve (12) months after such death or
Disability; provided, however, that in no event shall the period extend
beyond the expiration of the Option term.
(b) Options shall become exercisable in whole or in part immediately
from the date of grant. In no event, however, shall an Option be
exercised after the expiration of ten (10) years from the date of
grant.
(c) A Participant, by written notice to the Company, may designate one
or more persons (and from time to time change such designation)
including his legal representative, who, by reason of his or her death,
shall acquire the right to exercise all or a portion of the Option. If
no designation is made before the death of the Participant, the
Participant's Option may be exercised by the personal representative of
the Participant's estate or by a person who acquired the right to
exercise such option by will or the laws of descent and
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distribution. If the person with exercise rights desires to exercise
any portion of the Option, such person must do so in accordance with
the terms and conditions of this Plan.
2.5 Notice Of Exercise
When exercisable pursuant to the terms of the Plan and the governing
stock option agreement, an Option shall be exercised by the Participant
as to all or part of the shares subject to the Option by delivering
written notice of exercise to the Company at its principal business
office or such other office as the Company may from time to time
direct, (a) specifying the number of shares to be purchased, (b)
accompanied by cash or a certified check payable to the Company in an
amount equal to the full exercise price of the number of shares being
exercised or with previously acquired shares of Common Stock having an
aggregate Fair Market Value, on the date of exercise, equal to the
aggregate exercise price of all Options being exercised (provided that
such shares were not acquired less than six (6) months prior to such
exercise date) or with any combination of cash, certified check or
shares of Common Stock, and (c) containing such further provisions
consistent with the provisions of the Plan as the Company may from time
to time prescribe. No Option may be exercised after the expiration of
the term specified in Section 2.4 hereof.
2.6 Limitation Of Exercise Periods
The Board may limit the time periods within which an Option may be
exercised if a limitation on exercise is deemed necessary in order to
effect compliance with applicable law.
3. GENERAL PROVISIONS
3.1 General Restrictions
Each grant under the Plan shall be subject to the requirement that if
the Board shall determine, at any time, that (a) the listing,
registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or
federal law, or (b) the consent or approval of any government
regulatory body, or (c) an agreement by the Participant with respect to
the disposition of shares of Common Stock, is necessary or desirable
as a condition of, or in connection with, the granting or the issuance
or purchase of shares of Common Stock thereunder, such grant may not be
consummated in whole or in part unless such listing, registration,
qualification, consent, approval or agreement shall have been effected
or obtained free of any conditions not acceptable to the Board.
3.2 Adjustments For Changes In Capitalization
Notwithstanding any other provisions of the Plan, in the event of any
change in the outstanding Common Stock by reason of a stock dividend,
recapitalization, merger or consolidation in which the Company is the
surviving corporation, split-up, combination or exchange of shares or
the like, the aggregate number and kind of shares subject to the
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<PAGE>
Plan, the aggregate number and kind of shares subject to each
outstanding option and the exercise price thereof shall be
appropriately adjusted by the Board, whose determination shall be
conclusive.
In the event of (a) the liquidation or dissolution of the Company, (b)
a merger or consolidation in which the Company is not the surviving
corporation, or (c) any other capital reorganization in which more than
50% of the shares of Common Stock of the Company entitled to vote are
exchanged, any outstanding options shall then remain exercisable within
the period of thirty (30) days commencing upon the date of the action
of the shareholders (or the Board of Directors if shareholders' action
is not required) is taken to approve the transaction and upon the
expiration of that period all options and all rights thereto shall
automatically terminate, unless other provision is made therefor in the
transaction.
3.3 Amendments
Without further approval of the shareholders, the Board may discontinue
the Plan at any time and may amend it from time to time in such respect
as the Board may deem advisable, unless shareholder or regulatory
approval is required by law or regulation, and subject to any
conditions established by the terms of such amendment; provided,
however, that the Plan may not be amended more than once every six (6)
months other than to comport with changes in the Code, the Employee
Retirement Income Security Act or the rules thereunder.
3.4 Modification, Substitution Or Cancellation Of Grants
No rights or obligations under any outstanding Option may be altered or
impaired without the Participant's consent. Any grant under the Plan
may be canceled at any time with the consent of the Participant, and a
new grant may be provided to such Participant in lieu thereof.
3.5 Shares Subject To The Plan
Shares distributed pursuant to the Plan shall be made available from
authorized but unissued shares or from shares purchased or otherwise
acquired by the Company for use in the Plan, as shall be determined
from time to time by the Board.
3.6 Rights Of A Shareholder
Participants under the Plan, unless otherwise provided by the Plan,
shall have no rights as shareholders by reason thereof unless and until
certificates for shares of Common Stock are issued to them; provided,
however, that until such stock certificate is issued, any Option holder
using previously acquired shares of Common Stock in payment of an
Option exercise price shall continue to have the rights of a
shareholder with respect to such previously acquired shares.
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3.7 Withholding
If a Participant is to experience a taxable event in connection with
the receipt of shares of Common Stock pursuant to an Option exercise,
the Participant shall pay the amount equal to the federal, state and
local income taxes and other amounts as may be required by law to be
withheld to the Company prior to the issuance of such shares of Common
Stock.
3.8 Non-assignability
Except as expressly provided in the Plan, no grant shall be
transferable except by will, the laws of descent and distribution or a
qualified domestic relations order ("QDRO") as defined by the Code or
Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder. During the lifetime of the
Participant, except as expressly provided in the Plan, grants under the
Plan shall be exercisable only by such Participant or by the guardian
or legal representative of such Participant or pursuant to a QDRO.
3.9 Nonuniform Determinations
Determinations by the Board under the Plan (including, without
limitation, determinations of the persons to receive grants, the form,
amount and timing of such grants, and the terms and provisions of such
grants and the agreements evidencing the same) need not be uniform and
may be made by it selectively among persons who receive, or are
eligible to receive, awards under the Plan, whether or not such persons
are similarly situated.
3.10 Effective Date; Duration
The Plan shall be subject to approval by the holders of a majority of
the Company's stock outstanding and entitled to vote thereon at the
next meeting of its shareholders. No Options granted hereunder may be
exercised prior to such approval, provided that the date of grant of
any Options granted hereunder shall be determined as if the Plan had
not been subject to such approval. Notwithstanding the foregoing, if
the Plan is not approved by a vote of the shareholders of the Company
on or before March 26, 1997, the Plan and any Options granted hereunder
shall terminate.
3.11 Governing Law
The Plan and all actions taken thereunder shall be governed by and
construed in accordance with the laws of the State of New York.
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EXHIBIT 5
HARTMAN & CRAVEN LLP
460 Park Avenue
New York, New York 10022
March 21, 1997
MISONIX, INC.
1938 New Highway
Farmingdale, New York 11735
Re: 1996 Employee Incentive Stock Option Plan and
1996 Non-Employee Director Stock Option Plan
Dear Sirs:
We are acting as counsel to MISONIX, INC., a New York corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act"). The Registration Statement relates to (i) 300,000 shares of the
Company's common stock, $0.01 par value per share ("Common Stock"), which are to
be issued pursuant to the Company's 1996 Employee Incentive Stock Option Plan
(the "Employee Plan") and (ii) 750,000 shares of Common Stock which are to be
issued pursuant to the Company's 1996 Non-Employee Director Stock Option Plan
(the "Directors' Plan"). The shares of Common Stock which are to be issued
pursuant to the Employee Plan and the Directors' Plan are hereinafter
collectively referred to as the "Shares".
In connection with this opinion, we have examined and relied upon
copies certified or otherwise identified to our satisfaction of: (i) the
Employee Plan; (ii) the Directors' Plan; (iii) the Company's Certificate of
Incorporation, as amended and By-laws; (iv) the minute books and other records
of corporate proceedings of the Company, as made available to us by officers of
the Company; and have reviewed such matters of law as we have deemed necessary
or appropriate for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies. We
have also assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authority of such persons
signing on behalf of the parties thereto other than the Company and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company. As to certain factual matters material to the opinion
expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to factual matters of officers and
other representatives of the Company. Our opinion expressed below is subject to
the qualification that we express no opinion
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as to any law other than the laws of the State of New York and the federal laws
of the United States of America. Without limiting the foregoing, we express no
opinion with respect to the applicability thereto or effect of municipal laws or
the rules, regulations or orders of any municipal agencies within any such
state.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, it is our opinion that
the Shares to be issued by the Company pursuant to the Employee Plan and the
Directors' Plan have been duly authorized and reserved for issuance and, when
certificates for the Shares have been duly executed by the Company,
countersigned by a transfer agent, duly registered by a registrar for the Shares
and issued and paid for in accordance with the terms of the Employee Plan and
the Directors' Plan, the Shares will be validly issued, fully paid and
non-assessable.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the federal laws of the United States of
America be changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/HARTMAN & CRAVEN LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Misonix, Inc. pertaining to the 1996 Employee Incentive Stock
Option Plan and the 1996 Non-Employee Director Stock Option Plan of our report
dated August 9, 1996, with respect to the consolidated financial statements of
Misonix, Inc. included in the Annual Report (Form 10-KSB) for the year ended
June 30, 1996.
/s/ Ernst & Young LLP
Melville, New York
March 21, 1997
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