<PAGE>
As filed with the Securities and Exchange Commission on May 18, 1999
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)
1998 EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plan)
Michael A. McManus, Jr., 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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
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 .......... 500,000 shares $6.47 $3,115,150 $866.01
====================================================================================================================================
</TABLE>
(1) Based on a per share exercise price of $5.06 for 85,000 shares. The balance
of the shares are exercisable at $6.47 per share and 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 price per
share is estimated based on the average of the high and low bid prices for
MISONIX, INC.'s Common Stock on May 14, 1999, as reported by the National
Association of Securities Dealers' Automated Quotation System.
<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, 1998 filed with the Commission on September 23, 1998;
(b) The Registrant's Form 10-QSB for the quarter ended September 30, 1998
and Form 10-QSB/A for such quarter, filed with the Commission on November 12,
1998 and December 4, 1998, respectively, Form 10-QSB for the quarter ended
December 31, 1998 filed with the Commission on February 19, 1999 and Form 10-QSB
for the quarter ended March 31, 1999 filed with the Commission on May 14, 1999;
(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.
2
<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
3
<PAGE>
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.
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 DESCRIPTION
NUMBER -----------
- ------
4 1998 Employee 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, independent auditors.
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:
(iii) Include any additional or changed material information on the
plan of distribution.
(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.
4
<PAGE>
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
5
<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 May 18, 1999.
MISONIX, INC.
By: /s/ Michael A. McManus
--------------------------------
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 May 18, 1999
- ------------------------- Directors
Gary Gelman
/s/ Michael A. McManus President, Chief Executive May 18, 1999
- ------------------------- Officer, and Director (principal
Michael A. McManus, Jr. executive officer)
/s/ Richard Zaremba Vice President and Chief Financial May 18, 1999
- ------------------------- Officer (principal financial and
Richard Zaremba accounting officer)
/s/ Howard Alliger Director May 18, 1999
- -------------------------
Howard Alliger
- ------------------------- Director May , 1999
Arthur Gerstenfeld
6
<PAGE>
EXHIBIT INDEX
Exhibit No. DESCRIPTION
- ----------- -----------
4 1998 Employee 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, independent auditors
7
<PAGE>
EXHIBIT 4
1998 EMPLOYEE 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 (i)
"incentive stock options" ("ISOs") within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") and (ii)
non-qualified stock options.
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 500,000. 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
8
<PAGE>
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; whether options shall be ISOs or
non-qualified options; the times when they shall receive options; the
number of shares of Common Stock to be subject to 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 option; 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 fair 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.
9
<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 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 term
10
<PAGE>
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.
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, (b) 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 (c) by
reducing the number of shares of Common Stock otherwise deliverable to
the holder of an option upon exercise of the option, or with any
combination of cash, certified check, shares of Common Stock or
reduction as aforesaid.
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 corporation 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
11
<PAGE>
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 reemployment 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
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<PAGE>
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
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
13
<PAGE>
period all options and all rights thereto shall automatically terminate,
unless other provision is made therefor in the transaction.
13. AMENDMENTS AND TERMINATION OF THE PLAN.
The Plan was adopted by the Board of Directors on October 7, 1998. No
option may be granted under the Plan after October 6, 2008. 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 "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, however, 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,
14
<PAGE>
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.
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.
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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.
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 require the approval of a majority of the votes cast
thereon by the shareholders of the Company 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
October 6, 1999, the Plan and any options granted hereunder shall
terminate.
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EXHIBIT 5
HARTMAN & CRAVEN LLP
460 Park Avenue
New York, New York 10022
May 18, 1999
MISONIX, INC.
1938 New Highway
Farmingdale, New York 11735
Re: 1998 Employee 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 500,000 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 1998 Employee Stock Option Plan (the
"Employee Plan"). The shares of Common Stock which are to be issued pursuant to
the Employee Plan are hereinafter 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 Company's Certificate of Incorporation, as amended and By-laws, as
amended; (iii) 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 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,
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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 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, 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,
HARTMAN & CRAVEN LLP
By: /s/ Edward I. Tishelman
----------------------------
Edward I. Tishelman,
a partner
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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 1998 Employee Stock Option Plan of
MISONIX, INC. of our report dated August 7, 1998, with respect to the
consolidated financial statements of MISONIX, INC. included in its Annual Report
(Form 10-KSB) for the year ended June 30, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Melville, New York
April 7, 1999
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