August 2, 2019
Stavros G. Vizirgianakis
President and Chief Executive Officer
Misonix, Inc.
1938 New Highway
Farmingdale, New York 11735
Re: New Misonix, Inc.
Amendment No. 2 to Registration Statement on Form S-4
Filed July 26, 2019
File No. 333-231797
Dear Mr. Vizirgianakis:
We have reviewed your amended registration statement and have the
following
comments. In some of our comments, we may ask you to provide us with
information so we
may better understand your disclosure.
Please respond to this letter by amending your registration statement
and providing the
requested information. If you do not believe our comments apply to your facts
and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to your registration statement and the
information you
provide in response to these comments, we may have additional comments. Unless
we note
otherwise, our references to prior comments are to comments in our July 19,
2019 letter.
Amendment No. 2 to Registration Statement on Form S-4 filed July 26, 2019
Under the merger agreement..., page 36
1. We note your response to prior comment 3 and your disclosure that in no
event will
Solsys members be liable for more than the actual amount of the Solsys
merger
consideration received by them in the Solsys Merger. Please reconcile
this disclosure
with the second risk factor on page 38. Also clarify when the Solsys
members' obligation
to reimburse the representative will terminate.
Stavros G. Vizirgianakis
FirstName LastNameStavros G. Vizirgianakis
Misonix, Inc.
Comapany2019
August 2, NameMisonix, Inc.
August 2, 2019 Page 2
Page 2
FirstName LastName
Selected Unaudited Prospective Financial Information, page 107
2. It is unclear how you addressed that part of prior comment 10 seeking
disclosure of the
projections through 2029 mentioned on what is now page 101. Please
revise as
appropriate.
Material U.S. Federal Income Tax Consequences of the Mergers, page 113
3. Please tell us the reason for the uncertainty represented by the
phrase "should be
recognized" in the penultimate paragraph on page 116. Also, given the
carve-out in the
last sentence of the first paragraph of this section on page 113, it
is unclear how you have
provided all disclosure required by Form S-4 Item 4(a)(6). Please
advise or revise your
disclosure and exhibits as appropriate.
U.S. Federal Income Tax Consequences..., page 115
4. Please clarify how members determine whether they bear the economic
risk of loss for the
recourse liabilities as mentioned on page 33.
Consideration in the Solsys Merger..., page 119
5. We note your response to prior comment 13 regarding the intervals
selected for the table
on page 121. However, we also note the price interval between the last
two columns in
the table. If the amount of consideration to be received does not vary
directly with the
Misonix stock price changes between that interval, please provide
additional columns as
appropriate to clarify.
Clinical Evidence Summary of Published Clinical Studies, page 150
6. We note your revisions in response to prior comment 17 and that you
now attribute the
summaries of the studies to Solsys. Please note that you may not
disclaim responsibility
for disclosure in your filing. Revise the first sentence of this
section accordingly.
Choice of Forum, page 180
7. Please reconcile your disclosure that the Court of Chancery of the
State of Delaware will
be the exclusive forum for "any state" law derivative action or
proceeding with the
exclusive forum provision in Annex B and the disclosure regarding that
provision on page
211 which appear to indicate that such court will be the exclusive
forum for any derivative
action or proceeding, other than as provided in the last sentence of
Article VII Section 1 in
Annex B.
8. It appears that your revised forum selection provision in Annex B
identifies a state court
located within the State of Delaware (or, if no state court located
within the State of
Delaware has subject matter jurisdiction, the federal district court
for the District of
Delaware) as the exclusive forum for certain litigation, including
"any derivative action."
Stavros G. Vizirgianakis
Misonix, Inc.
August 2, 2019
Page 3
It s unclear how this clause is consistent with your disclosure on
page 180 regarding the
forum for claims under the Securities Act. If the provision in Annex B
is intended to
apply to actions arising under the Securities Act, please clarify your
disclosure, state that
there is uncertainty as to whether a court would enforce such
provision, and revise your
risk factors as appropriate to address such issues as increased costs
to bring a claim. If the
provision applies to Securities Act claims, please also state that
investors cannot waive
compliance with the federal securities laws and the rules and
regulations thereunder. In
that regard, we note that Section 22 of the Securities Act creates
concurrent jurisdiction
for federal and state courts over all suits brought to enforce any
duty or liability created by
the Securities Act or the rules and regulations thereunder. If this
provision does not apply
to actions arising under the Securities Act, please ensure that the
exclusive forum
provision in the governing documents states this clearly, or tell us
how you will inform
investors in future filings that the provision does not apply to any
actions arising under the
Securities Act.
Comparison of Shareholder Rights, page 182
9. We note your response to prior comment 26; however, it appears that
the 66 2/3% vote
provision mentioned in the last column on page 213 is not presented
separately on the
proxy card. Please advise or revise.
Article XLII. Removal of Directors or Managers -- New Misonix, Inc. (DE) , page
195
10. We note your response to prior comment 25 but it is unclear how your
disclosure in this
section addresses the 66 2/3% vote for removal of directors provided
for in Article VI,
Section 4 of Annex B. Please revise as appropriate.
Incorporation of Certain Documents by Reference, page 216
11. It is unclear where you made the revisions indicated in your response
to prior comment
27. Please advise or revise your filing as appropriate.
12. We note your response to prior comment 28:
It remains unclear how the last paragraph on page 216 is reconcilable
to the documents
filed under Rule 425 as at least one such document appears to
include statements that
are not incorporated by reference. Please advise or revise as
appropriate.
We note the revenue expectation added on page 85. Please see
Regulation S-K Item
10(b)(2) regarding presentation of revenue projections without one
of the identified
measures of income.
FirstName LastNameStavros G. Vizirgianakis
Exhibit Index, page II-5
Comapany NameMisonix, Inc.
13.
AugustPlease file the 3
2, 2019 Page consent identified as exhibit 23.3.
FirstName LastName
Stavros G. Vizirgianakis
FirstName LastNameStavros G. Vizirgianakis
Misonix, Inc.
Comapany2019
August 2, NameMisonix, Inc.
Page 4
August 2, 2019 Page 4
FirstName LastName
Exhibits 8.1 and 8.2, page II-5
14. Please clarify whether the Representation Letters are limited to
factual matters. For
guidance, see Section III.C.3 of Staff Legal Bulletin No. 19 available
on the Commission's
website. Also:
ensure that the opinions that you file cover all tax disclosure in
your prospectus, as
appropriate; we note for example the disclosure on pages 33 and 49;
and
where disclosure refers to more specific provisions of the Code than
the opinions cite,
please tell us the significance of those differences; we note for
example your
disclosure on pages 33 and 132.
You may contact Eric Atallah at (202) 551-3663 or Lynn Dicker, Senior
Accountant, at
(202) 551-3616 if you have questions regarding comments on the financial
statements and
related matters. Please contact Tim Buchmiller at (202) 551-3635 or Russell
Mancuso, Legal
Branch Chief, at (202) 551-3617 with any other questions.
Sincerely,
Division of
Corporation Finance
Office of
Electronics and Machinery
cc: Jonn R. Beeson, Esq.