Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Article XI
of the Registrant's Certificate of Incorporation contains
certain provisions permitted under the Delaware General Corporation Law relating
to the liability of directors. These provisions eliminate a director's liability
for monetary damages for
a breach of fiduciary duty, except in certain
circumstances involving wrongful acts such as the breach of a director's duty
of
loyalty or acts
or omissions involving intentional misconduct or
a knowing violation of law.
Section
145 of the Delaware General Corporation Law provides that, among other things,
a
corporation may indemnify directors and officers as well as other employees
and
agents of the corporation against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than action by or in the right of the corporation, a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard
is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with
the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
bylaws, disinterested director vote, stockholder vote, agreement or
otherwise.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to
provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director, except for
liability (i) for any transaction from which the director derives an improper
personal benefit, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of
the Delaware General Corporation Law (certain illegal distributions) or (iv)
for
any breach of a director's duty of loyalty to the company or its stockholders.
Article Eleven of the Company's certificate of incorporation includes such
a
provision.
The
Company also maintains liability insurance for directors and officers, as
authorized by Section 145 of the Delaware General Corporation Law.
Item
7. Exemption from Registration Claimed.
Not
Applicable.
Item
8. Exhibits.
Exhibit
Number
|
Description
|
4.1
|
Atrion
Corporation Non-Employee Director Stock Purchase Plan
|
4.2
|
Atrion
Corporation 2006 Equity Incentive Plan, incorporated by reference
to
Schedule 14A filed April 6, 2006 (File No. 000-10763)
|
4.3
|
Atrion
Corporation 1997 Stock Incentive Plan, incorporated by reference
to the
Company's Form S-8 filed June 10, 1998 (File No.
333-56509)
|
4.4
|
Atrion
Corporation 1998 Outside Directors Stock Option Plan, incorporated
by
reference to the Company's Form S-8 filed June 10, 1998 (File No.
333-56511)
|
4.5
|
Rights
Agreement, dated as of August 7, 2006, between the Company and the
Rights
Agent, incorporated by reference to the Company’s Registration Statement
on Form 8-A, filed with the Commission on August 10, 2006 (File No.
001-32982)
|
5.1
|
Opinion
and Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz,
P.C.
|
10.1
|
Form
of Non-Employee Director Stock Purchase Plan Election
Form
|
23.1
|
Consent
of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., contained in
Exhibit 5.1
|
23.2
|
Consent
of Grant Thornton LLP
|
24
|
Power
of Attorney, included on signature
page
|
Item
9. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of the securities offered would not exceed what was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change
to
such information in this registration statement;
provided
,
however
, that sections (a)(1)(i) and (a)(1)(ii) 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 (the "Exchange Act") that are
incorporated by reference in this registration statement;
(2) That,
for the purpose of determining any 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;
and
(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 this
offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is incorporated by reference in this 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
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 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.
EXHIBIT
INDEX
Exhibit
Number
|
Description
|
4.1
|
Atrion
Corporation Non-Employee Director Stock Purchase Plan
|
4.2
|
Atrion
Corporation 2006 Equity Incentive Plan, incorporated by reference
to
Schedule 14A filed April 6, 2006 (File No. 000-10763)
|
4.3
|
Atrion
Corporation 1997 Stock Incentive Plan, incorporated by reference
to the
Company's Form S-8 filed June 10, 1998 (File No.
333-56509)
|
4.4
|
Atrion
Corporation 1998 Outside Directors Stock Option Plan, incorporated
by
reference to the Company's Form S-8 filed June 10, 1998 (File No.
333-56511)
|
4.5
|
Rights
Agreement, dated as of August 7, 2006, between the Company and the
Rights
Agent, incorporated by reference to the Company’s Registration Statement
on Form 8-A, filed with the Commission on August 10, 2006 (File No.
001-32982)
|
5.1
|
Opinion
and Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz,
P.C.
|
10.1
|
Form
of Non-Employee Director Stock Purchase Plan Election
Form
|
23.1
|
Consent
of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., contained in
Exhibit 5.1
|
23.2
|
Consent
of Grant Thornton LLP
|
24
|
Power
of Attorney, included on signature
page
|
Exhibit
4.1
ATRION
CORPORATION
NON-EMPLOYEE
DIRECTOR STOCK PURCHASE PLAN
1.
Purpose;
Effective Date
.
Atrion Corporation (the
“Company”) has established this Non-Employee Director
Stock Purchase Plan (the
“Plan”) to provide a convenient method by which non-employee directors of the
Company (the “Directors”) may purchase shares of Common Stock of the
Company (“Shares”) at fair market value by voluntarily electing to
receive Shares in lieu of fees otherwise payable to them in cash for
service as a director or Member of a Committee of the Board of Directors (the
“Fees”). The Plan is effective as of the date it is approved by the
Board of Directors (the “Board”).
2.
Administration
.
2.1.
The
Plan
will be interpreted and administered by the Compensation Committee of the Board
(the “Committee”), the actions and interpretations of which will be final and
binding.
2.2.
The
Committee, in its sole discretion, will have the power, subject to, and within
the limitations of, the express provisions of the Plan:
2.2.1
To
establish, amend and revoke rules and procedures relating to the Plan (for
example, but not by way of limitation, with respect to Director elections to
participate in the Plan and the delivery of Shares) as it may deem necessary
or
appropriate for the administration of the Plan;
2.2.2
To
make
any and all determinations as it may deem necessary or appropriate for the
administration of the Plan;
2.2.3
To
approve a form of election form to be used in conjunction with the Plan;
and
2.2.4
To
delegate all or any part of its authority and powers under the Plan to one
or
more officers or employees of the Company, including with respect to the
day-to-day administration of the Plan.
3.
Election
to Receive Shares in Lieu of Fees
.
3.1.
During
the thirty (30) days immediately following the approval of this Plan with
respect to the Fees payable during the period beginning July 1, 2007 and ending
December 31, 2007 and in December of each year with respect to the Fees payable
during the next succeeding calendar year, each Director shall be given the
opportunity to elect to receive Shares in lieu of some or all of the Fees that
would otherwise be payable to him or her.
3.2.
The
foregone Fees will be converted into Shares based on the closing sales price
of
a share of Common Stock on the date such Fees would otherwise have been payable
to the Director as reported by (a) any national securities exchange on which
the
shares of Common Stock are traded or (b) The Nasdaq Stock Market or, if no
shares of Common Stock are traded on such exchange or system on such date,
then
on the next preceding date on which any shares of Common Stock were traded
on
such exchange or system on the day the applicable foregone Fees otherwise would
be paid.
3.3.
Until
and
unless otherwise determined by the Committee, each Director’s election pursuant
to Section 3.1 shall be irrevocable for the calendar year to which it
relates.
4.
Delivery
of Shares.
4.1.
Shares
paid out to a Director under the Plan will be electronically delivered to the
Director’s broker as indicated in the Director’s election form or, if no broker
is so indicated, to the Director’s broker of record (as listed in the Company’s
records at the time of delivery) as soon as administratively practicable after
the date the foregone Fees otherwise would have been payable to such
Director.
4.2.
Payouts
of Shares under the Plan will be in the form of whole Shares only; the balance
of any foregone Fees not payable in whole Shares will be paid in
cash.
5.
Amendment
or Termination of the Plan
.
The Committee may, at
any time and for any reason, amend or terminate the Plan.
6.
No
Guarantee of Future Service
.
Nothing in the Plan
will provide Directors any guarantee or promise of continued service on the
Board.
7.
Tax
Withholding
.
Any income recognizable by a Director
as a result of distribution under the Plan will be reported by the Company
on a
Form 1099 or other appropriate forms.
8.
Choice
of Law
.
All questions concerning the construction,
validity, and interpretation of the Plan will be governed by the law of the
State of Texas, exclusive of the conflict of laws provisions
thereof.
9.
Headings
.
The headings in the Plan are for convenience only and will not be
deemed to constitute a part hereof nor to affect the meaning
hereof.
Exhibit
5.1
[Letterhead]
June
27,
2007
Atrion
Corporation
One
Allentown Parkway
Allen,
TX 75002
|
Re:
|
Registration
Statement on Form S-8
|
Gentlemen:
We
have
acted as counsel for Atrion Corporation, a Delaware corporation (the "Company"),
in connection with the Registration Statement on Form S-8 (the "Registration
Statement") filed by the Company with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, with respect to 2,500 shares
of
the Company's common stock (the "Shares"), issuable under the terms of the
Atrion Corporation Non-Employee Director Stock Purchase Plan as referenced
in
the Registration Statement (the "Plan").
In
connection therewith, we have relied upon, among other things, our examination
of the Company’s charter and bylaws and such other documents, records of the
Company, and certificates of its officers and public officials, as we have
deemed necessary for purposes of the opinion expressed below.
Based
upon the foregoing, and having regard for such legal considerations as we have
deemed relevant, we are of the opinion that:
|
(i)
|
The
Company is duly incorporated, validly existing and in good standing
under
the laws of the State of Delaware;
and
|
|
(ii)
|
The
Shares covered by the Registration Statement have been duly authorized
for
issuance and, when issued pursuant to the terms of the Plan, will
be
legally issued, fully paid and
nonassessable.
|
This
opinion is furnished to you solely for your benefit in connection with the
filing of the Registration Statement and is not to be used, quoted or otherwise
referred to for any other purpose without our prior written consent. We hereby
consent to the filing of this opinion as Exhibit 5.1 to, and to the use of
our
name in, the Registration Statement.
Very
truly yours,
BAKER,
DONELSON, BEARMAN,
CALDWELL
& BERKOWITZ, PC
By:
/s/
B.G.
Minisman
Its: Authorized
Representative
Exhibit
10.1
ATRION
CORPORATION
NON-EMPLOYEE
DIRECTOR STOCK PURCHASE PLAN
FORM
OF STOCK PURCHASE ELECTION FORM
In
order
to provide non-employee directors ("Directors") with a convenient method of
purchasing shares of Common Stock, Atrion Corporation (the "Company")
established the Atrion Non-Employee Director Stock Purchase Plan (the "Plan")
which allows the Directors to elect to receive fully-vested shares in lieu
of
some or all of their fees. The foregone fees are converted into
shares of Common Stock of the Company based on the shares' fair market value
on
the day the applicable fees otherwise would be paid. The shares will
not be considered a "purchase" that is subject to liability under
Section 16 of the Securities Exchange Act of 1934, as amended
("Section 16"), but will be subject to Section 16 reporting.
In
accordance with the provisions of the Plan, the undersigned Director hereby
makes the following elections with respect to cash fees payable for services
as
a Director or member of a committee of the Board of Directors
("Fees"):
Important
— Deadline for Completion and Submission of Election Form: Pursuant to rules
established by the Company, you may elect to receive shares in lieu of some
or
all of the Fees payable to you during the period beginning on
[ ]
and ending on
[ ].
This
Election Form must be completed and returned to the Company no later than
[ ]
.
1.
Election
to Receive Stock
I
elect to receive shares of Common
Stock of the Company in lieu ofpercent of the Fees that otherwise would be
payable to me during the period beginning on
[ ]
and ending on
[ ].
2.
Revocation
of Election
After
the Election Form submission
deadline indicated above, my election is final and binding for the remainder
of
[ ].
3.
Delivery
Instructions
(Please check the appropriate box)
□
Electronic
Delivery
Please
deliver all shares
to:
Account
Number:
__________________________________
Broker
Name: _____________________________________
Broker
Contact (Phone
Number): ______________________
Broker
Contact
(E-mail): _____________________________
□
Delivery
of
Certificate
Please
deliver the certificate for all
shares to the following address:
___________________________________
___________________________________
___________________________________
___________________________________
Payout
will be in the form of whole shares of Common Stock of the Company with the
balance in cash.
4.
Taxation
The
fair market value of the shares you
receive in lieu of Fees will be taxable to you as ordinary income. As
with cash payments of Fees, the Company will report the income to you on a
Form 1099. The amount of income you will recognize on the
receipt of the shares will be the same amount you would recognize if you elected
to receive Fees in cash. If you are a taxpayer in countries other
than the United States, you may be subject to additional tax
obligations.
5.
Acknowledgement
I
understand that my decision to elect
to receive shares in lieu of the Fees payable to me during the period beginning
on
[ ] and
ending on
[ ] may
not be revoked or otherwise changed. I understand that I will
recognize ordinary income on the fully-vested shares, which will be reported
to
me on a Form 1099.
I
understand that the Compensation
Committee shall have the discretion to make all determinations and decisions
regarding this election. To the extent the Committee determines that this
election does not comply with applicable laws, now or in the future, this
election shall be null and void. In such an event, any Fees subject to this
election will be paid in cash when they otherwise become due and
owing.
Director: _____________________________________
_______________________________________
(Print
name)
_______________________________________
(Social
Security Number)
_______________________________________
(Date)
Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We
have
issued our reports dated March 9, 2007, accompanying the consolidated financial
statements and schedule and management's assessment of the effectiveness of
internal control over financial reporting included in the Annual Report of
Atrion Corporation on Form 10-K for the year ended December 31, 2006, which
are
incorporated by reference in this Registration Statement. We consent to
the incorporation by reference in the Registration Statement of the
aforementioned reports.
/s/
Grant
Thornton LLP
Dallas,
Texas
June
27,
2007