Item 1.01. Entry into a Material Definitive Agreement
Agreement and Plan of Merger
On July 29, 2021, Misonix, Inc., a Delaware corporation ("Misonix"), Bioventus
Inc., a Delaware corporation ("Bioventus"), Oyster Merger Sub I, Inc., a
Delaware corporation, and a direct, wholly owned subsidiary of Bioventus
("Merger Sub I"), and Oyster Merger Sub II, LLC, a Delaware limited liability
company, and a direct, wholly owned subsidiary of Bioventus ("Merger Sub II"),
entered into an Agreement and Plan of Merger (the "Merger Agreement"). Pursuant
to the Merger Agreement, and subject to the satisfaction or waiver of the
conditions specified therein, Merger Sub I shall be merged with and into
Misonix, with Misonix surviving as a wholly owned subsidiary of Bioventus (the
"First Merger") and following the First Merger, Misonix shall be merged with and
into Merger Sub II, with Merger Sub II surviving as Misonix, LLC (the "Second
Merger" and together with the First Merger, the "Mergers"). Capitalized terms
used herein but not defined shall have the respective meanings assigned to them
in the Merger Agreement.
The board of directors of each of Misonix and Bioventus has unanimously approved
the Merger Agreement and the transactions contemplated thereby.
Merger Consideration
At the effective time of the First Merger (the "First Effective Time"), each
share of common stock, par value $0.0001 per share, of Misonix ("Misonix Common
Stock") issued and outstanding immediately prior to the First Effective Time
(other than the shares that are owned by Bioventus, Misonix, Merger Sub I or
Merger Sub II and shares of any dissenting holders who are entitled to and have
properly asserted appraisal rights) will be converted into the right to receive,
either an amount in cash equal to $28.00 or 1.6839 validly issued, fully paid
and non-assessable shares of Class A common stock of Bioventus, $0.001 par value
per share (each share, a "Bioventus Share"), based on the election of the holder
thereof in accordance with the terms of the Merger Agreement.
Holders of Misonix Common Stock will have the right to elect to receive for each
share of Misonix Common Ctock they hold either (i) 1.6839 shares of Bioventus
Shares or (ii) $28.00. The maximum cash amount payable by Bioventus will be an
amount equal to $10.50 multiplied by the number of outstanding shares of Misonix
Common Stock shortly prior to the completion of the transaction. If the
aggregate amount of cash elected to be received by holders of Misonix Common
Stock exceeds the maximum cash amount, the number of shares of Misonix Common
Stock electing to receive cash consideration will be reduced on a pro rata basis
and the remainder of the shares of Misonix Common Stock will be paid the stock
consideration of 1.6839 Bioventus Shares. If the aggregate amount of cash
elected to be received by the holders of Misonix Common Stock is less than the
maximum cash amount, all of the shares electing to receive cash consideration
will receive the cash election consideration of $28.00 per share, the remaining
excess cash consideration shall first be paid to shares of Misonix Common Stock
that made no election, and thereafter (to the extent any excess cash
consideration remains) to the shares of Misonix Common Stock electing to receive
stock consideration. The balance of the merger consideration payable to holders
of Misonix Common Stock after allocation and exhaustion of the foregoing
aggregate cash consideration will be paid pro rata in the form of stock
consideration of 1.6839 Bioventus Shares.
Treatment of Equity
The Merger Agreement provides that, at the First Effective Time, each
outstanding option to purchase Misonix Common Stock ("Misonix Option") held by
an individual who, as of immediately after the First Effective Time, constitutes
an "employee" of Parent within the meaning of Form S-8 (each an "Assumed Misonix
Option") will be assumed by Parent and converted into rights to purchase
Bioventus Shares on
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the same terms and conditions that applied to the Assumed Misonix Options
immediately prior to the First Effective time, provided that, the number of
Bioventus Shares subject to each Assumed Misonix Option and the exercise price
of each Assumed Misonix Option shall be adjusted by the Option Exchange Ratio
(as defined in the Merger Agreement) and each Assumed Misonix Option will become
fully vested immediately upon the First Effective Time. Effective as of the
First Effective Time, each Misonix Option that is not an Assumed Misonix Option
and that is outstanding and unexercised will be settled in cash immediately
prior to the First Effective Time in accordance with the terms of the Merger
Agreement.
Governance
The Merger Agreement provides that prior to the Effective Time, Bioventus will
offer at least two members of the board of Misonix, mutually agreed by Bioventus
and Misonix, the opportunity to join the Bioventus board of directors effective
as of the First Effective Time.
Conditions to the Merger
The consummation of the Merger is subject to customary closing conditions,
including (i) approval of the issuance of Bioventus Shares in connection with
the First Merger by the stockholders of Bioventus, (ii) the adoption of the
Merger Agreement by the stockholders of Misonix, (iii) the absence of any law or
order by any governmental entity in effect that seeks to enjoin, make illegal,
or prevent the consummation of the Merger, (iv) Nasdaq's approval of the
Bioventus Shares to be issued in the Merger being listed on the Nasdaq, (v) any
waiting period applicable to the Mergers under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 ("HSR Act") has expired or been terminated,
(vi) subject to certain materiality exceptions, the accuracy of certain
representations and warranties of each of Bioventus and Misonix contained in the
Merger Agreement and the compliance by each party with the covenants contained
in the Merger Agreement, (vii) the absence of a material adverse effect with
respect to each of Bioventus and Misonix and (viii) the registration statement
registering the merger consideration becoming effective.
Certain Other Terms of the Merger Agreement
Bioventus, Misonix, Merger Sub I and Merger Sub II each made certain
representations, warranties and covenants in the Merger Agreement, including,
among other things, covenants by Bioventus and Misonix to conduct their
businesses in the ordinary course during the period between the execution of the
Merger Agreement and consummation of the Mergers, to refrain from taking certain
actions specified in the Merger Agreement and to use reasonable best efforts to
cause the conditions of the Merger to be satisfied. Subject to certain
exceptions, the Merger Agreement also requires each of Bioventus and Misonix to
call and hold stockholders' meetings and requires the board of directors of each
of Bioventus and Misonix to recommend approval of the transactions contemplated
by the Merger Agreement.
Bioventus and Misonix are restricted from soliciting any acquisition proposals,
or engaging in any discussions related to such proposals, although each party
may engage in discussions related to a superior proposal subject to certain
conditions.
. . .
Item 2.02. Results of Operations and Financial Condition
On July 29, 2021, Misonix, Inc. issued a press release announcing its financial
results for the three- and twelve-month periods ended June 30, 2021. A copy of
the press release is furnished hereto as Exhibit 99.2 and is incorporated herein
by reference.
The information contained in this Item 2.02, including Exhibit 99.2 hereto,
shall not be deemed "filed" for purposes of Section 18 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to
the liabilities of that section, nor shall it be deemed incorporated by
reference in any filing made by the Company under the Securities Act of 1933, as
amended (the "Securities Act"), or the Exchange Act, regardless of any general
incorporation language in such filings, unless expressly incorporated by
specific reference in such filing.
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Item 8.01. Other Events
On July 29, 2021, Misonix and Bioventus issued a joint press release announcing
their entry into the Merger Agreement. A copy of the joint press release is
attached as Exhibit 99.3 to this report and incorporated herein by reference.
Bioventus and Misonix management will host a conference call today, July 29,
2021, beginning at 4:30 p.m. Eastern Time to discuss the transaction and
Bioventus' preliminary revenue results, followed by a question-and-answer
session. The investor presentation and investor Q&A are furnished, respectively,
as Exhibits 99.4 and 99.5 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
Set forth below is a list of the exhibits to this Current Report on Form 8-K.
Exhibit
Number Description
2.1 Agreement and Plan of Merger, dated as of July 29, 2021, by and
among Misonix, Bioventus, First Merger Sub and Second Merger Sub*
10.1 Bioventus Voting and Support Agreement, dated as of July 29, 2021,
by and among Misonix and the Bioventus Supporting Stockholders
99.1 Form of Misonix Voting and Support Agreement, dated as of July 29,
2021, by and among Bioventus Inc. and the Misonix Supporting
Stockholders
99.2 Press release dated July 29, 2021
99.3 Joint press release dated July 29, 2021
99.4 Investor Presentation, dated July 29, 2021
99.5 Investor Presentation Q&A, dated July 29, 2021
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K.
Misonix hereby undertakes to furnish supplemental copies of any of the omitted
schedules upon request by the U.S. Securities and Exchange Commission;
provided, that Misonix may request confidential treatment pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so
furnished.
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