As filed with the Securities and Exchange Commission on February 26, 2010
Registration No. 333-
UNITED STATES 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)
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New York
(State or other jurisdiction
of incorporation or organization)
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11-2148932
(I.R.S. Employer Identification No.)
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1938 New Highway
Farmingdale, New York 11735
(Address of Principal Executive Offices) (Zip Code)
MISONIX, INC. 2009 EMPLOYEE EQUITY INCENTIVE PLAN
MISONIX, INC. 2009 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
Michael A. McManus, Jr.
Chairman, President and Chief Executive Officer
MISONIX, INC.
1938 New Highway
Farmingdale, New York 11735
(Name and address of agent for service)
(631) 694-9555
(Telephone number, including area code, of agent for service)
Copies to:
Joel I. Frank, Esq.
Siller Wilk LLP
675 Third Avenue
New York, New York 10017
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Proposed maximum
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Proposed maximum
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Amount of
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Title of securities
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Amount to be
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offering price
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aggregate offering
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registration
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to be registered
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registered (1)
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per share (2)
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price (1, 2)
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fee
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Common stock, par
value $.01 per share
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700,000
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$
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2.125
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$
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1,487,500
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$
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106.06
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(1)
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Represents the maximum number of shares of Common Stock issuable under the (i) MISONIX,
INC. 2009 Employee Equity Incentive Plan and (ii) MISONIX, INC. 2009 Non-Employee Director
Stock Option Plan (collectively, the “Plans”).
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(2)
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Based on a per share exercise price of $2.125 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 “Securities Act”). The price per
share is estimated based on the average of the high and low sale prices for the common
stock, par value $.01 per share (“Common Stock”), of MISONIX, INC. (the “Company”) on
February 19, 2010, as reported on The NASDAQ Stock Market LLC.
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This registration statement shall become effective immediately upon filing with the
Securities and Exchange Commission in accordance with
Section 8(a)
of the Securities Act of
1933 and Rule 462 thereunder.
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement will be sent or given to
participants in the Plans as specified by Rule 428(b)(1) under the Securities Act. Such documents
are not filed with the Securities and Exchange Commission (the “Commission”) either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to the note to Part I
of Form S-8. These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
(b) Upon written or oral request, the Company will provide, without charge, the documents
incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are
incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without
charge, upon written or oral request, other documents required to be delivered to participants in
the Plans pursuant to Rule 428(b). Requests for the above-mentioned information should be directed
to Richard Zaremba, the Company’s Secretary, at the address and telephone number on the cover of
this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Company under File No. 001-10986,
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated
by reference in this Registration Statement:
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(1)
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The description of the Company’s Common Stock contained in the Company’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.
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(2)
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The Company’s Annual Report on Form 10-K for the year ended June 30, 2009,
filed with the Commission on September 28, 2009.
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(3)
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The Company’s Quarterly Report on Form 10-Q for the three months ended
September 30, 2009, filed with the Commission on November 16, 2009 and Form 10-Q for
the quarter ended December 31, 2009 filed with the Commission on February 16, 2010.
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(4)
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The Company’s Current Report on Form 8-K filed with the Commission on
November 17, 2009 and Form 8-K filed with the Commission on February 17, 2010.
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All documents filed or subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, after the date of this registration statement and prior to the
filing of a post-effective amendment which indicates that all securities described herein have
been sold or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof from the date of
filing of such documents with the Commission.
Any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 722 of the New York Business Corporation Law (“BCL”) 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 BCL 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 BCL provides that the
indemnification and advancement of expense provisions contained in the BCL 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.
Section 724 of the BCL provides that a person who is entitled to indemnification may seek such
indemnification in court. Section 725 of the BCL provides that expenses which were advanced to a
person in defending a civil or criminal action in connection with services performed as an officer
and director shall be returned if it is ultimately determined that such person was not entitled to
indemnification. Section 726 of the BCL provides that a corporation has the power to purchase and
maintain insurance to cover claims for indemnification.
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.
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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, 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 Company as to which indemnification is being sought, nor is the Company 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.
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Exhibit
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Number
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Description
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4.1
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Restated Certificate of Incorporation of the Company.*
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4.2
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By-Laws of the Company, incorporated by reference from the Company’s Current Report on Form
8-K filed on April 9, 2008.
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4.3
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Specimen Common Share certificate (incorporated by reference to Exhibit 4.1 to the Company’s
Registration Statement on Form S-1, File No. 33-43585, dated October 24, 1991).
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5
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Opinion of Siller Wilk LLP regarding the legality of the securities being registered.*
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23.1
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Consent of Siller Wilk LLP to the filing of its opinion (included in Exhibit 5).*
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23.2
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Consent of Grant Thornton LLP to the incorporation by reference of their report on the
consolidated financial statements included in the Company’s Annual Report on Form 10-K for its
fiscal year ended June 30, 2009.*
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24
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Power of Attorney (included on the signature page of this Registration Statement).*
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3
Item 9. Undertakings.
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(a)
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The undersigned registrant hereby undertakes to:
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(1) File,
during any period in which offers or sales are being made, 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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) include any material information with respect to the plan of distribution;
Provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii) of this section 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 section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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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 February 26, 2010.
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MISONIX, INC.
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/s/ Michael A. McManus, Jr.
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Name:
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Michael A. McManus, Jr.
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Title:
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Chairman, President and
Chief Executive Officer
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KNOW TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Michael A. McManus, Jr. and Richard Zaremba, and each of them severally, his true and
lawful attorney-in-fact with power of substitution and resubstitution to sign in his name, place
and stead, in any and all capacities, to do any and all things and execute any and all instruments
that such attorney may deem necessary or advisable under the Securities Act and any rules,
regulations and requirements of the Commission in connection with this registration statement on
Form S-8 and any and all amendments hereto, as fully for all intents and purposes as he or she
might or could do in person, and hereby ratifies and confirms all said attorneys-in-fact and
agents, each acting alone, and his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been
signed by the following persons in the capacities and on the date indicated.
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/s/ Michael A.
McManus, Jr.
Michael A. McManus, Jr.
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Chairman of the Board of
Directors, President and
Chief Executive Officer
(Principal Executive Officer)
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February 26, 2010
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/s/ Richard Zaremba
Richard Zaremba
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Senior Vice President, Chief
Financial Officer, Treasurer
and Secretary (Principal
Financial and Principal
Accounting Officer)
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February 26, 2010
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/s/ Howard Alliger
Howard Alliger
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Director
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February 26, 2010
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/s/ John W. Gildea
John W. Gileda
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Director
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February 26, 2010
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/s/ Charles Miner III
Dr. Charles Miner III
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Director
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February 26, 2010
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/s/ T. Guy Minetti
T. Guy Minetti
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Director
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February 26, 2010
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/s/ Thomas F. O’Neill
Thomas F. O’Neill
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Director
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February 26, 2010
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5
EXHIBIT INDEX
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Exhibit
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Number
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Description
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4.1
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Restated Certificate of Incorporation of the Company.
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5
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Opinion of Siller Wilk LLP regarding the legality of the securities being registered.
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23.1
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Consent of Siller Wilk LLP to the filing of its opinion (included in Exhibit 5).
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23.2
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Consent of Grant Thornton LLP to the incorporation by reference of their report on the
consolidated financial statements included in the Company’s Annual Report on Form 10-K for its
fiscal year ended June 30, 2009.
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Power of Attorney (included on the signature page of this Registration Statement).
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EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
MISONIX,
INC.
Under Section 807 of the Business Corporation Law
The undersigned, being the President and Secretary of MISONIX, INC., do hereby certify as follows:
(1) The name of the Corporation is MISONIX, INC. The name under which the Corporation was
formed was HEAT SYSTEMS-ULTRASONICS, INC.
(2) The Certificate of Incorporation of the Corporation was filed by the Department of State
of the State of New York on the 31
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day of July 1967.
(3) The Certificate of Incorporation, as heretofore amended, is hereby amended or changed to
effect one or more of the amendments or changes authorized by the Business Corporation Law, to wit:
(a) To increase the aggregate number of shares of Common Stock which the Corporation shall
have authority to issue from 10,000,000 shares of Common Stock of the par value of $.01 per share,
to 20,000,000 shares of Common Stock of the par value of $.01 per share.
(b) To change the address to which the Secretary of State shall mail a copy of process in any
action or proceeding against the Corporation which may be served upon him.
(4) To accomplish the foregoing amendments:
(a) Article Fourth relating to the capital stock of the Corporation and Article Fifth relating
to designation of the Secretary of State as agent for service of process of the Corporation are
amended to read as set forth in the same numbered Articles of the Certificate of Incorporation of
the Corporation as hereinafter restated.
(5) The text of the Certificate of Incorporation of the Corporation is hereby restated as
further amended or changed herein to read as follows:
“CERTIFICATE
OF INCORPORATION
OF
MISONIX, INC.
FIRST: The name of the Corporation is:
MISONIX, INC.
SECOND: The purposes for which the Corporation is formed are as follows:
To engage in any lawful act or activity for which corporations may be organized under the New
York Business Corporation Law, provided that the Corporation is not formed to engage in any act or
activity requiring the consent or approval of any state official, department, board, agency or
other body without such consent or approval first being obtained.
THIRD: The principal office of the Corporation shall be located in the City of Farmingdale,
County of Suffolk and State of New York.
FOURTH: The aggregate number of shares which the Corporation is authorized to issue is
22,000,000 shares, consisting of 20,000,000 shares of Common Stock of the par value of $.01 per
share and 2,000,000 shares of Preferred Stock of the par value of $1.00 per share.
The relative rights, preferences and limitations of the shares of each class of capital stock
are as follows:
(a)
Common Stock
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(1) Subject to the rights of any other class or series of stock, the holders of shares of
Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of
the assets of the Corporation legally available therefor, such dividends as may be declared from
time to time by the Board of Directors.
(2) Subject to such rights of any other class or series of securities as may be granted from
time to time, the holders of shares of Common Stock shall be entitled to receive all the assets of
the Corporation available for distribution to shareholders in the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, ratably, in proportion to
the number of shares of Common Stock held by them. Neither the merger or consolidation of the
Corporation into or with any corporation nor the merger or consolidation of any other corporation
into or with the Corporation nor the sale, lease, exchange or other disposition (for cash, shares
of stock, securities or other consideration) of all or substantially all the assets of the
Corporation shall be deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, of the Corporation.
(3) Common Stock shall not be subject to redemption
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(4) Subject to such voting rights of any other class or series of securities as may be granted
from time to time pursuant to this Certificate of Incorporation, any amendment thereto, or the
provisions of the laws of the State of New York governing business corporations, voting rights
shall be vested exclusively in the holders of Common Stock. Each holder of Common Stock shall have
one vote in respect of each share of such stock held.
(b)
Preferred Stock
. The Board of Directors of the Corporation is authorized, subject
to limitations prescribed by law and the provisions of this Certificate of Incorporation, to
provide for the issuance of the Preferred Stock in series, and by filing a certificate pursuant to
the New York Business Corporation Law, to establish the number of shares to be included in each
such series, and to fix the designation, relative rights, preferences and limitations of the shares
of each such series. The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(1) the number of shares constituting that series and the distinctive designation of that
series;
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(2) whether the holders of shares of that series shall be entitled to receive dividends and,
if so, the rates of such dividends, conditions under which and times such dividends may be declared
or paid, any preference of any such dividends to, and the relation to, the dividends payable on any
other class or classes of stock or any other series of the same class and whether dividends shall
be cumulative or non-cumulative and, if cumulative, from which date or dates;
(3) whether the holders of shares of that series shall have voting rights in addition to the
voting rights provided by law and, if so, the terms and conditions of exercise of such voting
rights;
(4) whether shares of that series shall be convertible into or exchangeable for shares of any
other class, or any series of the same or any other class, and, if so, the terms and conditions
thereof, including the date or dates when such shares shall be convertible into or exchangeable for
shares of any other class, or any series of the same or any other class, the price or prices of or
the rate or rates at which shares of such series shall be so convertible or exchangeable, and any
adjustments which shall be made, and the circumstances in which any such adjustments shall be made,
in the conversion or exchange price or rates;
(5) whether the shares of that series shall be redeemable, and, if so, the terms and
conditions of such redemption, including the date or dates upon or after which they shall be
redeemable and the amount per share payable in case of redemption, which amount may vary under
different conditions and at different redemption dates;
(6) whether the shares of that series shall be subject to the operation of a retirement or
sinking fund and, if so subject, the extent to and the manner in which it shall be applied to the
purchase or redemption of the shares of that series, and the terms and provisions relative to the
operation thereof;
(7) the rights of the shares of that series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and any presence of any such rights to,
and the relation to, the rights in respect thereto of any class or classes of stock or any other
series of the same class; and
(8) any other relative rights, preferences and limitations of that series
;
provided, however, that if the stated dividends and amounts payable on liquidation with respect to
shares of any series of the Preferred Stock are not paid in full, the shares of all series of the
Preferred Stock shall share ratably in the payment of dividends including accumulations, if any, in
accordance with the sums which would be payable on such shares if all dividends were declared and
paid in full, and in any distribution of assets (other than by way of dividends) in accordance with
the sums which would be payable on such distribution if all sums payable were discharged in full.
FIFTH: The Secretary of State of the State of New York is hereby designated as the agent of
the Corporation upon whom any process in any action or proceeding against the Corporation may be
served, and the address to which the Secretary of State shall mail a copy of process in any action
or proceeding against the Corporation which may be served upon him is: MISONIX, INC., 1938 New
Highway, Farmingdale, New York 11735, Attn: President.
SIXTH: No holder of any of the shares of any class, and no holder of any of the shares of any
series of any class, of the Corporation shall have any preemptive rights and, as such, no holder of
any of the shares of any class, and no holder of any of the shares of any series of any class, of
the Corporation shall be entitled as of right to subscribe for, purchase or otherwise acquire any
shares of any class, or shares of any series of any class, of the Corporation which the Corporation
proposes to issue or any rights or options which the Corporation proposes to grant for the purchase
of shares of any class, or shares of any series of any class, of the Corporation or for the
purchase of any shares, bonds, securities or obligations of the Corporation which are convertible
into or exchangeable for, or which carry any rights
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to subscribe for, purchase or otherwise acquire shares of any class, or shares of any series
of any class, of the Corporation, and any and all such shares, bonds, securities or obligations of
the Corporation, whether now or hereafter authorized or created, may be issued, or may be reissued
or transferred if the same have been reacquired and have treasury status, and any and all of such
rights and options may be granted by the Board of Directors to such persons, firms, corporations
and associations, for such lawful consideration and on such terms as the Board of Directors in its
discretion may determine, without first offering the same, or any thereof, to any said holder.
SEVENTH: (a) The Corporation shall be permitted to indemnify, and advance expenses to, any
officer, director or other person to the fullest extent from time to time permitted by law, and, to
the extent consistent therewith shall indemnify or advance expenses to any such officer, director
or other person to the fullest extent required by or pursuant to any present or future by-law of
the Corporation, agreement approved by the Board of Directors, or resolution of shareholders or
directors; and the adoption of any such resolution or entering into of any such agreement approved
by the Board of Directors is hereby authorized.
(b) A director of the Corporation shall not be personally liable to the Corporation or its
shareholders for damages for any breach of duty as a director; provided that, except as hereinafter
provided, this Section SEVENTH shall neither eliminate nor limit liability: (a) if a judgment or
final adjudication adverse to the director establishes that (i) the director’s acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation of law, (ii) the
director personally gained in fact a financial profit or other advantage to which the director was
not legally entitled, or (iii) the director’s acts violated Section 719 of the New York Business
Corporation Law; or (b) for any act or omission prior to the effectiveness of this Section SEVENTH.
If the Corporation hereafter may by law be permitted to further eliminate or limit the personal
liability of directors, then pursuant hereto the liability of a director of the Corporation shall,
at such time, automatically be further eliminated or limited to the fullest extent permitted by
law. Any repeal of or modification to the provisions of this Section SEVENTH shall not adversely
affect any right or protection of a director or the Corporation existing pursuant to this Section
SEVENTH immediately prior to such repeal or modification.
EIGHTH: (a) The Board of Directors of the Corporation shall consist of three (3) directors
subject to increase or decrease within the limits of not less than three (3) nor more than seven
(7) directors, the exact number of directors within the minimum and maximum limitations specified
herein to be determined from time to time by resolution of a majority of the entire Board of
Directors; provided, however, that the number of directors shall be increased beyond the foregoing
limit, to the extent required, in the event that (and for so long as) the holders of any Preferred
Stock of the Corporation, voting as a separate class or series under any provisions of the
Certificate of Incorporation, shall be entitled to elect any directors.
(b) No director of the Corporation shall be removed from office as a director except (i) for
cause by the vote of (A) the holders of at least a majority of the outstanding shares of capital
stock of the Corporation entitled to vote at an election of directors (considered for this purpose
as one class) or (B) a majority of the entire Board of Directors or (ii) without cause by the
majority vote of the holders of the outstanding shares of capital stock of the Corporation entitled
to vote at an election of directors (considered for this purpose as one class), provided that this
provision shall not apply to any directors elected by holders of any Preferred Stock voting as a
separate class or series under any provisions of the Certificate of Incorporation, which directors
may be removed only as provided in the provisions of the Certificate of Incorporation relating to
any such Preferred Stock.”
(6) The amendments to, and restatement of, the Certificate of Incorporation of the Corporation
herein provided for were authorized by the unanimous written consent of the Board of Directors of
the Corporation and by the affirmative vote of the holders of at least a majority of all
outstanding shares of the
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Corporation’s Common Stock entitled to vote thereon at the Annual Meeting of Shareholders of
the Corporation held December 11, 2008.
IN WITNESS WHEREOF, we have subscribed this document this 12
th
day of December,
2008, and do hereby affirm, under penalty of perjury, that the statements contained therein have
been examined by us and are true and correct.
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MISONIX, INC.
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/s/ Michael A. McManus, Jr.
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Michael A. McManus, Jr.,
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President
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/s/ Richard Zaremba
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Richard Zaremba, Secretary
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5
Exhibit 5
SILLER WILK LLP
675 Third Avenue
New York, NY 10017
February 26, 2010
MISONIX, INC.
1938 New Highway
Farmingdale, New York 11735
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
MISONIX, INC., a New York corporation (the “Company”), is registering for sale under the
Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on
Form S-8 (the “Registration Statement”), up to 700,000 shares (the “Shares”) of Common Stock of
the Company, par value $0.01 per share (“Common Stock”). The Shares have been reserved for issuance
upon exercise of stock options and awards that have been granted under the Company’s (i) 2009
Employee Equity Incentive Plan and (ii) 2009 Non-Employee Director Stock Option Plan (collectively,
the “Plans”).
Siller Wilk LLP acts as Counsel to the Company. In such capacity, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of (a) the Registration Statement
to be filed with the Securities and Exchange Commission (the “Commission”) on the date hereof, (b)
the Plans, (c) a specimen certificate evidencing the Common Stock, (d) the Certificate of
Incorporation of the Company, as presently in effect, (e) the By-Laws of the Company, as presently
in effect, (f) certain resolutions of the Board of Directors of the Company relating to, among
other things, the Plans (collectively, the “Board Resolutions”), (g) the Company’s periodic
Commission filings for all relevant periods and (h) such other documents as we have deemed
necessary or appropriate as a basis for the opinions set forth below.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness
of all signatures, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In examining documents executed or to
be executed by parties other than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on such parties. As to any
facts material to the opinions expressed herein which we did not independently establish or verify,
we have relied upon certificates, statements or representations of officers and other
representatives of the Company, public officials and others. In rendering the opinion set forth
below, we have assumed that (i) the certificates representing the Shares under the Plans will be
manually signed by one of the authorized officers of the transfer agent and registrar for the
Common Stock and registered by such transfer agent and registrar and will conform to the specimen
thereof examined by us and (ii) prior to the issuance of any Shares under the Plans, the Company
and the relevant optionee will have duly entered into stock option or similar agreements
(“Agreements”) in accordance with the Board Resolutions and the Plans, as the case may be.
Based upon and subject to the foregoing, we are of the opinion that the Shares under the Plans
have been duly and validly authorized for issuance and, when delivered and paid for in accordance
with the terms of the Agreements, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5 to the
Registration Statement. In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules or regulations of the
Commission thereunder.
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Very truly yours,
Siller Wilk LLP
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By:
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/s/ Joel I. Frank
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Joel I. Frank,
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a partner of the firm
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