Item 1.02 Termination of a Material Definitive Agreement.
Silicon Valley Bank Credit Facility
In connection with the consummation of the Mergers, on October 27, 2021, Misonix
and its subsidiaries terminated all outstanding lender commitments, including
commitments of the lenders to issue letters of credit, under that certain Loan
and Security Agreement, dated December 26, 2019, by and among Misonix, Solsys
Medical, LLC, Misonix OpCo, Inc. and Silicon Valley Bank (as amended from time
to time, including pursuant to the First Loan Modification Agreement, dated
January 6, 2020, and the Second Loan Modification Agreement, dated June 30,
2020, the "SVB Credit Agreement"). In connection with the termination of the SVB
Credit Agreement, on October 27, 2021, all outstanding obligations for
principal, interest and fees under the SVB Credit Agreement were paid off in
full, and all liens securing such obligations and any letter of credit or
hedging obligations permitted by the SVB Credit Agreement to be secured by such
liens and guarantees of such obligations were released.
SWK Credit Facility
In connection with the consummation of the Mergers, on October 29, 2021, Misonix
and its subsidiaries terminated all outstanding lender commitments, including
commitments of the lenders to issue letters of credit, under that certain
Amended and Restated Credit Agreement, dated September 27, 2019, by and among
Misonix, Solsys Medical, LLC and SWK Funding LLC, as administrative agent for
the other lenders (as amended from time to time, including pursuant to the First
Amendment, dated December 23, 2019 and the Second Amendment, dated June 30,
2020, the "SWK Credit Agreement"). In connection with the termination of the SWK
Credit Agreement, on October 29, 2021, all outstanding obligations for
principal, interest and fees under the SWK Credit Agreement were paid off in
full, and all liens securing such obligations and any letter of credit or
hedging obligations permitted by the SWK Credit Agreement to be secured by such
liens and guarantees of such obligations were released.
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Item 2.01 Completion of Acquisition or Disposition of Assets.
Merger Consideration
As discussed in the Introductory Note, on October 29, 2021, the Mergers were
consummated in accordance with the terms of the Merger Agreement. At the First
Effective Time, each share of Misonix Common Stock issued and outstanding
immediately prior to the First Effective Time (other than the shares that were
owned by Bioventus, Misonix, Merger Sub I or Merger Sub II and shares of any
dissenting holders who are entitled to and have properly asserted appraisal
rights) was converted into the right to receive, either an amount in cash equal
to $28.00 or 1.6839 validly issued, fully paid and non-assessable Bioventus
Shares, based on the election of the holder thereof in accordance with the terms
of the Merger Agreement (and subject to proration as provided therein). No
fractional shares were issued in the First Merger and the value of any
fractional Bioventus Shares that a former holder of Misonix Common Stock would
otherwise be entitled to receive will be paid in cash.
Holders of Misonix Common Stock had the right to elect to receive for each share
of Misonix Common Stock they held either (i) 1.6839 Bioventus Shares (the "stock
election consideration") or (ii) $28.00 (the "cash election consideration").
However, the maximum cash amount payable by Bioventus was an amount equal to
$10.50 multiplied by the number of shares of Misonix Common Stock outstanding
shortly prior to the completion of the transaction, or 17,427,170 shares. As
such, the maximum cash payable by Bioventus in the First Merger was
$182,985,285. The election results with respect to the form of consideration
were as follows:
• Holders of approximately 10,670,441 shares of Misonix Common Stock
outstanding immediately prior to the First Effective Time elected to
receive the cash election consideration.
• Holders of approximately 5,695,481 shares of Misonix Common Stock
outstanding immediately prior to the First Effective Time elected to
receive the stock election consideration.
• Holders of approximately 1,061,248 shares of Misonix Common Stock
outstanding immediately prior to the First Effective Time made no
election.
Because the aggregate amount of cash elected to be received by holders of
Misonix Common Stock ($298,772,348) exceeded the maximum cash amount of
$182,985,285, the number of shares of Misonix Common Stock electing to receive
the cash consideration was reduced on a pro rata basis and the remainder of the
shares of Misonix Common Stock were paid the stock consideration of 1.6839
Bioventus Shares, in accordance with the Merger Agreement. Accordingly, holders
of Misonix Common Stock who validly elected to receive cash election
consideration will receive approximately $17.15 in cash and 0.6525 Bioventus
Shares, subject to rounding described in the Merger Agreement and cash in lieu
of fractional shares each of which may result in variances on a holder-by-holder
basis. The aggregate consideration to be paid in the Mergers is equal to
$182,988,466.76 in cash and 18,340,790 Bioventus Shares, taking into account
rounding described in the Merger Agreement and cash in lieu of fractional
shares.
Treatment of Options
Additionally, at the First Effective Time, each outstanding option to purchase
Misonix Common Stock ("Misonix Option") held by an individual who, as of
immediately after the First Effective Time, constituted an "employee" of
Bioventus within the meaning of Form S-8 (each an "Assumed Misonix Option") was
assumed by Bioventus and converted into a right to purchase Bioventus Shares on
the same terms and conditions that applied to the Assumed Misonix Option
immediately prior to the First Effective Time, provided that, the number of
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
The information set forth under Item 2.01 of this Current Report on Form 8-K is
incorporated herein by reference.
On October 29, 2021, in connection with the consummation of the Merger, Misonix
notified The Nasdaq Global Select Market ("Nasdaq") that the Mergers had been
consummated and requested that the trading of Misonix Common Stock on Nasdaq be
suspended prior to market open on October 29, 2021 and that the listing of the
shares of Misonix Common Stock on Nasdaq be withdrawn. In addition, Misonix
requested that Nasdaq file with the SEC a notification on Form 25 to report the
delisting of the shares of Misonix Common Stock from Nasdaq and to deregister
the shares under Section 12(b) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Misonix intends to file with the SEC a Form 15
suspending Misonix's reporting obligations under Sections 13 and 15(d) of the
Exchange Act pursuant to Section 12(g) of the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
The information set forth in the Introductory Note, Item 2.01 and Item 5.03 of
this Current Report on Form 8-K is incorporated by reference into this Item
3.03.
As of the First Effective Time, holders of Misonix Common Stock immediately
prior to the First Effective Time ceased to have any rights as common
stockholders of Misonix (other than the right to receive the merger
consideration or as provided by law).
Item 5.01. Changes in Control of Registrant.
Upon the First Effective Time, a change in control of Misonix occurred, and
Misonix became a direct, wholly-owned subsidiary of Bioventus.
The information set forth in the Introductory Note, Item 3.03 and Item 5.02 of
this Current Report on Form 8-K is incorporated by reference into this Item
5.01.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the First Merger, immediately following the First Effective
Time, (i) pursuant to the requirements of the Merger Agreement, Patrick J.
Beyer, Michael Koby, Paul LaViolette, Thomas M. Patton, and Stavros
Vizirgianakis (constituting all members of the Misonix Board of Directors)
resigned as directors of Misonix and its subsidiaries and (ii) each of
Mr. Vizirgianakis, Chief Executive Officer, Joseph P. Dwyer, Chief Financial
Officer, Sharon W. Klugewicz, Chief Operating Officer, Robert S. Ludecker,
Senior Vice President of Global Sales and Marketing, and Jay Waggoner, Senior
Vice President of Sales - Wound, each resigned from all positions as officers of
Misonix and its subsidiaries and, as a result, ceased to be executive officers
of Misonix, and Messrs. Vizirgianakis and Dwyer will receive severance benefits
consistent with the terms of their employment agreements. The respective
resignations of the foregoing directors and officers of Misonix were not a
result of any disagreements between Misonix and any of the directors or officers
on any matter relating to Misonix's operations, policies or practices.
The information set forth in the Introductory Note is incorporated herein by
reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In connection with the completion of the First Merger and pursuant to the Merger
Agreement, (a) at the First Effective Time, the Restated Certificate of
Incorporation and By-laws of Misonix, as in effect immediately prior to the
First Effective Time, continued to be the certificate of incorporation and
by-laws of Misonix, as the surviving corporation in the First Merger and (b) at
the effective time of the Second Merger (the "Second Effective Time"), the
certificate of formation and limited liability company agreement of Merger Sub
II in effect immediately prior to the Second Effective Time continued to be the
certificate of formation and limited liability company agreement of Merger Sub
II, as the surviving company in the Second Merger under the name Misonix, LLC,
until thereafter amended as provided in the Merger Agreement. Copies of the
certificate of formation of Merger Sub II and the limited liability company
agreement of Misonix, LLC are filed as Exhibits 3.1 and 3.2, respectively, to
this Current Report on Form 8-K and are incorporated by reference herein.
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Item 9.01 Financial Statements and Exhibits.
Reference is made to the Exhibit Index included with this Current Report on Form
8-K.
Exhibit No. Description
2.1 Agreement and Plan of Merger, dated as of July 29, 2021, by and
among Misonix, Bioventus, First Merger Sub and Second Merger Sub
(incorporated by reference to Exhibit 2.1 of Misonix's Current
Report on Form 8-K filed on July 29, 2021)
3.1 Certificate of Formation of Merger Sub II
3.2 Limited Liability Company Agreement of Misonix, LLC
104 Cover Page Interaction Date File (embedded within the Inline XBRL
document)
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