UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Atrion Corporation
(Name of Issuer)
Common Shares
(Title of Class of Securities)
049904105
(CUSIP Number)
John P. Stupp, Jr.
President
Stupp Bros., Inc.
3800 Webber Road
St. Louis, MO 63125
(314) 638-5000
(Name, Address and Telephone Number of Person Authorized
to
Receive Notices and Communications)
Copies To:
B. G. Minisman, Jr., Esq.
Baker, Donelson, Bearman, Caldwell & Berkowitz,
P.C.
1901 Sixth Avenue North, Suite 2600
Birmingham, Alabama 35203
(205) 328-0480
May 27, 2024
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this Schedule 13D and is filing this schedule because of Rule 13d-1(e),13d-1(f)
or 13d-1(g), check the following box ¨.
NOTE: Schedules filed in paper format shall include
a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled
out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this
cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act")
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13D
CUSIP No. 049904105
| 1. | NAME OF REPORTING PERSON |
| | Stupp Bros., Inc. |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
(a) ¨ |
| | |
(b) ¨ |
| 3. | SEC USE ONLY |
|
| 5. | CHECK BOX IF DISCLOSURE OR LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) |
¨ |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Missouri |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH |
7. |
SOLE VOTING POWER |
| |
135,000 |
| |
|
| 8. |
SHARED VOTING POWER |
| |
0 |
| |
|
| 9. |
SOLE DISPOSITIVE POWER |
| |
135,000 |
| |
|
| 10. |
SHARED DISPOSITIVE POWER |
| |
0 |
| 11. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | 135,000 |
| 12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
¨ |
| 13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | 7.67% |
| | |
| 14. | TYPE OF REPORTING PERSON |
| | CO |
SCHEDULE 13D
This Amendment No. 2 to Schedule 13D amends and
supplements the Schedule 13D as originally filed with the Securities and Exchange Commission by Stupp Bros., Inc. on May 7, 1999, which
Schedule 13D relates to the common stock, par value $.10 per share (the "Shares"), of Atrion Corporation, a Delaware corporation
(the "Issuer").
Item 2. Identity and Background.
Item 2 of Schedule 13D is amended to change the address of Stupp Bros.,
Inc. to 3800 Weber Road, St. Louis, MO 63125 and is supplemented by the following:
The name, address, principal occupation or employment,
involvement in certain proceedings and citizenship of each director and executive officer of Stupp Bros., Inc., and of each voting trustee
of the voting trust are set forth in Annex1 hereto and are incorporated herein by reference.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of Schedule 13D is amended and supplemented as follows:
John P. Stupp, Jr., Chairman of the Board, President,
and Chief Executive Officer of Stupp Bros., Inc. owns Shares. Information regarding his ownership of Shares is incorporated herein by
reference to the Schedule 13D filed by him on April 30, 1999, as amended by Amendment No. 1 to Schedule 13D filed by Mr. Stupp on January
4, 2013 and Amendment No. 2 to Schedule 13D filed by Mr. Stupp on May 29, 2024.
Nora Stupp Coggin is the beneficial owner of 4,466
Shares acquired by gift.
John P. Stupp, III is the beneficial owner of 4,466
Shares acquired by gift.
Item 4. Purpose of Transaction.
Item 4 of Schedule 13D is amended and supplemented as follows:
At the date of this Schedule 13D, Stupp
Bros., Inc. does not have any plans or proposals which would result in any
of the actions below except as may be effected through, or as a result of, the merger discussed in Item 6 below.
(a) The acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger, reorganization,
or liquidation involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer
or any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;
(e) Any material change in
the present capitalization or dividend policy of the Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from
a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Information regarding the purpose of John P. Stupp,
Jr.’s acquisition of Shares is incorporated herein by reference to the Schedule 13D filed by him on April 30, 1999, as amended by
Amendment No. 1 to Schedule 13D filed by Mr. Stupp on January 4, 2013 and as amended by Amendment No. 2 to Schedule 13D filed by Mr. Stupp
on May 29, 2024.
Item 5. Interest in Securities of the Issuer.
Item 5 of the Schedule 13D is hereby amended and supplemented as follows:
(a) Stupp Bros., Inc. is the beneficial owner of
135,000 Shares, representing approximately 7.67% of the Issuer’s Shares outstanding on May 15, 2024.
Information regarding John P. Stupp, Jr.’s
interest in securities of the Issuer is hereby incorporated herein by reference to the Schedule 13D filed by him on April 30, 1999, as
amended by Amendment No. 1 to Schedule 13D filed by Mr. Stupp on January 4, 2013 and as amended by Amendment No. 2 to Schedule 13D filed
by Mr. Stupp on May 29, 2024.
(b) Nora Stupp Coggin is the beneficial owner
of 4,466 Shares and has sole power to sell or direct the sale and vote or direct the vote of said Shares.
(c) John P. Stupp, III is the beneficial owner
of 4,466 Shares and has shared power to sell or direct the sale and vote or direct the vote of said Shares.
Item 6. Contracts, Arrangements, Understandings or Relationship with
Respect to Securities of the Issuer.
Item 6 of the Schedule 13D is hereby amended and supplemented as follows:
The 135,000 Shares owned by Stupp Bros., Inc.
are pledged as collateral for Stupp Bros., Inc.’s working capital line of credit with Stupp Bros., Inc.’s lender,
Commerce Bank, St. Louis, Missouri. The line of credit has standard default provisions.
Information regarding John P. Stupp, Jr.’s
contracts, arrangements, understandings or relationships relating to the securities of the Issuer is hereby incorporated herein by reference
to the Schedule 13D filed by him on April 30, 1999, as amended by Amendment No. 1 to Schedule 13D filed by Mr. Stupp on January 4, 2013
and as amended by Amendment No. 2 to Schedule 13D filed by Mr. Stupp on May 29, 2024.
In connection with the execution of a Merger Agreement
dated May 27, 2024 by and among the Issuer, Nordson Corporation, and Alpha Medical Merger Sub, Inc., a wholly owned subsidiary of Nordson
Corporation, providing for the merger of the Issuer with Alpha Medical Merger Sub, Inc. and the conversion of all outstanding Shares into
the right to receive cash in the amount of $460,00 per share upon consummation of the merger, Stupp Bros., Inc., along with John P. Stupp,
Jr., Emile A Battat, David A. Battat, and Montclair Harbour LLC (the “Support Agreement Signatories”), entered into voting
and support agreements on May 27, 2024 with Nordson Corporation (the “Support Agreements”). As of May 28, 2024, the Support
Agreement Signatories held, in the aggregate, Shares representing approximately 22% of the voting power of the outstanding Shares, including
the 135,000 Shares beneficially owned by Stupp Bros., Inc. Under the Support Agreements, the Support Agreement Signatories have, among
other things, agreed to, during the term of the Support Agreements, vote the Shares held by the Support Agreement Signatories (i) in
favor of the approval and adoption (as applicable) of a Merger Agreement dated May 27, 2024 by and among the Issuer, Nordson Corporation,
Alpha Medical Merger Sub, Inc., and any actions related thereto; (ii) in favor of any proposal to adjourn a meeting of the holders of
Shares at which the matters described in the preceding clause (i) are submitted for the consideration and vote of the holders of Shares
to a later date if there are not sufficient votes for approval of such matters on the date on which the meeting is held; (iii) against
any acquisition proposal, reorganization, recapitalization, liquidation or winding up of the Issuer or any other extraordinary transaction
involving the Issuer; (iv) against any action or agreement the consummation of which would reasonably be expected to prevent or delay
the consummation of the transactions contemplated by the Merger Agreement; (v) against any action or agreement that would reasonably be
expected to result in a material breach or violation of any covenant, representation or warranty or any other obligation of such Support
Agreement Signatories contained in the Support Agreements; and (vi) against any change in the membership of the Issuer’s Board of
Directors, unless approved by Nordson Corporation
The foregoing description of Stupp Bros., Inc.’s Support Agreement
and the transactions contemplated thereby does not purport to be complete, and is subject to, and qualified in its entirety by reference
to, the full text of its Support Agreement, which is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
| Exhibit No. | |
Description |
| 99.1 | |
Voting and Support Agreement, dated May 27, 2024, by and among Stupp Bros., Inc., John P. Stupp, Jr., and Nordson Corporation |
| 99.2 | |
Schedule 13D filed by John P. Stupp, Jr. on April 30, 1999, as amended by Amendment No. 1 to Schedule 13D filed by Mr. Stupp on January 4, 2013 and by Amendment No. 2 to Schedule 13D filed by Mr. Stupp on May 29, 2024. |
SIGNATURE
After reasonable inquiry and
to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: May 29, 2024
| |
Stupp Bros., Inc. |
| |
|
| |
|
| |
By: |
/s/ John P. Stupp, Jr. |
| |
|
John P. Stupp, Jr. |
| |
|
Its: President |
Annex 1
The following table sets forth
the name, residence or business address, present principal occupation or employment of each of the directors and executive officers of
Stupp Bros., Inc. and each of the trustees of the voting trust holding Stupp Bros., Inc. stock.
| |
1. |
(a) |
John P. Stupp, Jr. |
| |
|
|
|
| |
|
(b) |
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
|
(c) |
President and Chief Executive Officer; Director |
| |
|
|
Stupp Bros., Inc. |
| |
|
|
2800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
2. |
(a) |
R. Philip Stupp, Jr. |
| |
|
|
|
| |
|
(b) |
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
|
(c) |
Retired; Director |
| |
|
|
Stupp Bros., Inc. |
| |
|
|
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
3. |
(a) |
Nora Stupp Coggin |
| |
|
|
|
| |
|
(b) |
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
|
(c) |
Secretary, Voting Trustee, and Director |
| |
|
|
Stupp Bros., Inc. |
| |
|
|
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
4. |
(a) |
John P. Stupp, III |
| |
|
|
|
| |
|
(b) |
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
|
(c) |
President of Stupp Fiber; Director and Voting Trustee of Stupp Bros., Inc. |
| |
|
|
Stupp Fiber |
| |
|
|
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
5. |
(a) |
Charles N. McAlpin, Jr. |
| |
|
|
|
| |
|
(b) |
12555 Ronaldson Road |
| |
|
|
Baton Rouge, LA 70807 |
| |
|
(c) |
President of Stupp Corporation; Director and Voting Trustee of Stupp Bros., Inc. |
| |
|
|
Stupp Corporation |
| |
|
|
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
6. |
(a) |
Samuel W. Duggan, II |
| |
|
|
|
| |
|
(b) |
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
| |
|
|
|
| |
|
(c) |
CFO |
| |
|
|
Stupp Bros., Inc. |
| |
|
|
3800 Weber Road |
| |
|
|
St. Louis, MO 63125 |
During the last five years,
none of the foregoing persons has been convicted in any criminal proceeding, excluding traffic violations and similar misdemeanors, and
none has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which, as a result of such
proceeding, subjected him to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with respect to such laws. All of the foregoing persons are citizens
of the United States.
Exhibit 99.1
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (as the same
may be amended from time to time in accordance with its terms, this “Agreement”), dated as of May 28, 2024, by
and among the Persons listed on Schedule A (each a “Stockholder” and collectively, the “Stockholders”)
in each such person’s capacity as a stockholder of Atrion Corporation, a Delaware corporation (the “Company”),
and Nordson Corporation, an Ohio corporation (“Parent”). Capitalized terms used but not otherwise defined herein shall
have the meanings given to such terms in the Merger Agreement (as defined below).
WHEREAS, in order to induce Parent and Alpha Medical
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), to enter into
an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), with the Company, Parent has
requested each Stockholder, and each Stockholder has agreed, to enter into this Agreement with respect to the number of shares of common
stock, par value $0.10 per share, of the Company (the “Shares”) that such Stockholder beneficially owns and are set
forth next to such Stockholder’s name on Schedule A (together with such additional Shares or voting securities of which such
Stockholder acquires record or beneficial ownership after the date hereof, such Stockholder’s “Subject Shares”).
NOW, THEREFORE, in consideration of the foregoing
and the respective representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Article 1
Grant of Proxy; Voting Agreement
Section 1.01. Voting
Agreement. Beginning on the date hereof until the Expiration Date, each Stockholder hereby irrevocably and unconditionally agrees
that at any meeting of the stockholders of the Company, however called, and at any adjournment thereof, at which the Merger Agreement
(or any amended version thereof) or the Transactions, are submitted for the consideration and vote of the stockholders of the Company,
or in any other circumstance in which the vote or other approval of the stockholders of the Company is sought, each Stockholder shall,
in each case to the fullest extent that its Subject Shares are entitled to vote thereon, (a) appear at such meeting or otherwise
cause its Subject Shares to be counted as present thereat for purposes of calculating a quorum, (b) vote (or cause to be voted),
in person or by proxy, all Subject Shares that such Stockholder is entitled to vote at the time of any vote (i) in favor of the approval
and adoption (as applicable) of the Merger Agreement and any actions related thereto, (ii) in favor of any proposal to adjourn a
meeting of the stockholders of the Company to solicit additional proxies in favor of the approval and adoption (as applicable) of the
Merger Agreement and any actions related thereto, and (iii) against any (1) Acquisition Proposal, (2) reorganization, recapitalization,
liquidation or winding-up of the Company or any other extraordinary transaction involving the Company, (3) action or agreement the
consummation of which would reasonably be expected to prevent or delay the consummation of the Transactions, (4) any action or agreement
that would reasonably be expected to result in a material breach or violation of any covenant, representation or warranty or any other
obligation of such Stockholder contained in this Agreement, or (5) any change in the membership of the Company Board, unless approved
by Parent.
Section 1.02. Irrevocable
Proxy. Each Stockholder hereby revokes any and all previous proxies granted with respect to its Subject Shares (and such Stockholder
hereby represents that any such prior proxy is revocable). By entering into this Agreement, such Stockholder hereby grants a proxy appointing
Parent as such Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in such Stockholder’s name,
to vote, express dissent, or otherwise to utilize such voting power in the manner contemplated by Section 1.01 as Parent or
its proxy or substitute shall, in Parent’s sole discretion, deem proper with respect to the Subject Shares; provided that
(a) Parent shall not exercise the proxy granted by such Stockholder under this Section 1.02 more than ten (10) Business
Days prior to the Company Stockholders’ Meeting unless such Stockholder fails to comply with his obligation under this Agreement
or attempts or purports to vote the Subject Shares in a manner inconsistent with Section 1.01 and (b) if Parent intends
to exercise the proxy granted by such Stockholder under this Section 1.02 between the tenth (10th) Business Day
and the second (2nd) Business Day prior to the Company Stockholders’ Meeting, Parent shall provide the applicable Stockholder
with written notice at least twenty-four (24) hours prior to exercising such proxy. The proxy granted by such Stockholder pursuant to
this Article 1 is irrevocable and is granted in consideration of Parent entering into the Merger Agreement and incurring certain
related fees and expenses. The proxy granted by such Stockholder shall automatically be revoked upon the Expiration Date. Each Stockholder
hereby ratifies and confirms all actions that the proxy appointed hereunder may lawfully do or cause to be done in accordance with this
Section 1.02. Each Stockholder intends this proxy to be irrevocable and unconditional during the term of this Agreement and coupled
with an interest and will take such further action or execute such other instruments as may be reasonably necessary to effect the intent
of this proxy. Each Stockholder hereby agrees not to grant any proxy during the term of this Agreement with respect to any Subject Shares
that is inconsistent with the proxy granted pursuant to this Section 1.02. Any attempt by such Stockholder to grant a
proxy, vote or express dissent with respect to (or otherwise to utilize the voting power of) its Subject Shares in a manner inconsistent
with the proxy granted pursuant to this Section 1.02 shall be null and void ab initio.
Article 2
Representations and Warranties of Stockholders
Each
Stockholder on its own behalf represents and warrants to Parent, severally and not jointly, as of the date hereof with respect
to such Stockholder, that:
Section 2.01. Authorization;
Binding Agreement. The execution, delivery and performance by such Stockholder of this Agreement and the consummation by such Stockholder
of the transactions contemplated hereby are within the organizational or individual powers of such Stockholder and have been duly authorized
by all necessary action on the part of such Stockholder. This Agreement constitutes a legal, valid and binding Agreement of such Stockholder,
enforceable against such Stockholder in accordance with its terms, subject, in the case of enforceability,
to the Enforceability Exceptions. If such Stockholder is married and the Subject Shares set forth on Schedule A hereto opposite
such Stockholder’s name constitute community property under applicable Law, this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of, such Stockholder’s spouse. If this Agreement is being executed
in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into and perform this
Agreement. Other than as provided in the Merger Agreement and except for any filings by such Stockholder
with the SEC, the execution, delivery and performance by such Stockholder of this Agreement do not require any action by or in respect
of, or any notice, report or other filing by such Stockholder with or to, or any consent, registration, approval, permit or authorization
from, any Governmental Authority, other than any actions or filings the absence of which would not reasonably be expected to, individually
or in the aggregate, prevent, delay or impair such Stockholder’s ability to perform its obligations hereunder.
Section 2.02. Non-Contravention.
The execution, delivery and performance by such Stockholder of this Agreement and the performance of its obligations hereunder do not
and will not (i) if such Stockholder is an entity, violate the certificate of incorporation or bylaws (or other comparable organizational
documents) of such Stockholder, (ii) violate any Law applicable to such Stockholder, or (iii) require any consent, payment,
notice to, or other action by any Person under, constitute a default under, or give rise to any right of termination, cancellation or
acceleration or to a loss of any benefit to which such Stockholder is entitled under any provision of any Contract to which such Stockholder
is a party, in each case of this clause (iii), other than such consents, payments, notices to, or other actions that (A) have been
duly obtained prior to the execution and delivery of this Agreement or (B) would not reasonably
be expected to, individually or in the aggregate, prevent, delay or impair such Stockholder’s ability to perform its obligations
hereunder.
Section
2.03. Ownership of Shares. Except as disclosed in Footnote 7 under the heading “Securities
Ownership” in the Company’s Schedule 14A, dated April 9, 2024 (such disclosure, the “Ownership Disclosure”),
such Stockholder is the sole record and beneficial owner of the Subject Shares, free and clear of any Liens (other than Permitted Liens
and any Liens created by this Agreement). Except for this Agreement, none of the Subject Shares is subject to any voting trust or other
Contract with respect to the voting of such Subject Shares. Except as otherwise provided in Article
1 of this Agreement or as disclosed in the Ownership Disclosure, such Stockholder
has, and will have at all times during the term of this Agreement, the sole right to vote and direct the vote of, and to dispose of and
direct the disposition of, such Stockholder’s Subject Shares, and there are no Contracts of any kind, contingent or otherwise, obligating
such Stockholder to Transfer, or cause to be Transferred, any of its Subject Shares, and no Person has any contractual or other right
or obligation to purchase or otherwise acquire any of such Stockholder’s Subject Shares. Except for this Agreement, none of such
Stockholder’s Subject Shares are subject to any voting agreement, voting trust or other agreement or arrangement, including any
proxy, consent or power of attorney. For purposes of this Agreement, “beneficial ownership” and “beneficially
own” and similar terms have the meaning set forth in Rule 13d-3 under the U.S. Securities Exchange Act of 1934.
Section 2.04. Total
Shares. Except for its Subject Shares set forth on Schedule A hereto, such Stockholder does not beneficially own any other
Equity Interests of the Company.
Section 2.05. Reliance.
Such Stockholder understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon such Stockholder’s
execution and delivery of this Agreement and the representations, warranties, covenants and obligations of Stockholder contained herein.
Such Stockholder acknowledges that it has had the opportunity to seek independent legal advice from legal counsel of such Stockholder’s
own choosing prior to executing this Agreement. Such Stockholder understands and acknowledges that the Merger Agreement governs the terms
of the Merger and the Transactions.
Section 2.06. Absence
of Litigation. Such Stockholder represents that there is no Action pending or, to the knowledge of such Stockholder, threatened against
or affecting (i) such Stockholder or any of its properties or assets (including such Stockholder’s Subject Shares) or (ii) any
of its controlled Affiliates or any of their respective properties or assets, in each case before (or, in the case of threatened Actions,
that would be before) or by any Governmental Authority or arbitrator that would reasonably be expected to, individually or in the aggregate,
prevent or delay or impair the consummation by such Stockholder of the transactions contemplated by this Agreement or otherwise adversely
impact such Stockholder’s ability to perform its obligations hereunder on a timely basis.
Section 2.07. Finder’s
Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from any member of the Company
Group in respect of this Agreement or the Transactions based upon any arrangement or agreement made by or on behalf of such Stockholder
in such Stockholder’s capacity as such.
Section 2.08. No
Other Representations. Such Stockholder acknowledges and agrees that other than the representations expressly set forth in this Agreement,
Parent has not made, and is not making, any representations or warranties to such Stockholder with respect to Parent, the Merger Agreement
or any other matter. Such Stockholder hereby specifically disclaims reliance upon any representations or warranties (other than the representations
expressly set forth in this Agreement).
Article 3
Representations and Warranties of Parent
Parent represents and warrants to each Stockholder,
as of the date hereof, as follows:
Section 3.01. Corporation
Authorization. The execution, delivery and performance by Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby are within the corporate powers of Parent and have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of Parent, enforceable against Parent in accordance with
its terms, subject, in the case of enforceability, to the Enforceability Exceptions.
Section 3.02. Non-Contravention.
The execution, delivery and performance by Parent of this Agreement and the performance of its obligations hereunder do not and will not
(i) violate the certificate of incorporation or bylaws (or other comparable organizational documents) of Parent, (ii) violate
any Law applicable to Parent, (iii) other than the filing of a Schedule 13D with the SEC, require any consent, payment, notice to,
or other action by any Person under, constitute a default under, or give rise to any right of termination, cancellation or acceleration
or to a loss of any benefit to which Parent is entitled under any provision of any Contract to which Parent is a party, in each case,
other than such consents, payments, notices to, or other actions that (A) have been duly obtained prior to the execution and delivery
of this Agreement or (B) would not reasonably be expected to, individually or in the aggregate,
prevent, delay or impair Parent ability to perform its obligations hereunder.
Section 3.03. No
Other Representations. Parent acknowledges and agrees that other than the representations expressly set forth in this Agreement, each
Stockholder has not made, and is not making, any representations or warranties to Parent with respect to such Stockholder, the Merger
Agreement or any other matter. Parent hereby specifically disclaims reliance upon any representations or warranties (other than the representations
expressly set forth in this Agreement).
Article 4
Covenants of Stockholders
Each Stockholder hereby covenants and agrees that:
Section 4.01. No
Proxies for or Encumbrances on Subject Shares.
(a) Except
pursuant to the terms of this Agreement, such Stockholder shall not, without the prior written consent of Parent, directly or indirectly,
(i) grant any proxies, powers of attorney, or any other authorizations or consents,
or enter into any voting trust or other agreement or arrangement with respect to the voting of any Subject Shares, (ii) acquire,
sell, assign, transfer, encumber or otherwise dispose of, or enter into any Contract with respect to the direct or indirect acquisition
or sale, assignment, transfer, encumbrance or other disposition of (including by gift, and whether by merger, by tendering into any tender
or exchange offer, by testamentary disposition, by operation of law or otherwise, and including pursuant to any derivative transaction),
any Subject Shares (or any beneficial ownership therein or portion thereof) during the term of this Agreement or consent to any of the
foregoing (each, a “Transfer” (which defined term includes derivations of such defined term)), (iii) otherwise
permit any Liens to be created on any of such Stockholder’s Subject Shares, or (iv) enter into any Contract with respect to
the direct or indirect Transfer of any of such Stockholder’s Subject Shares; provided that nothing herein shall prohibit
a Stockholder from the following: (A) if such Stockholder is an individual, make Transfers of the Subject Shares (w) to any
trust for the direct benefit of such Stockholder or the immediate family of such Stockholder, (x) by will, other testamentary document
or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of such Stockholder, (y) by
operation of law pursuant to a qualified domestic relations order or in connection with a divorce settlement, or (z) to the Company
to cover tax withholding obligations of such Stockholder in connection with the vesting of any Company RSU award, provided that the underlying
Subject Shares held by such Stockholder shall continue to be subject to the restrictions and obligations set forth in this Agreement,
or (B) Transfer Subject Shares to an Affiliate of such Stockholder (any such Transfer, a “Permitted Transfer”);
provided, further, that any Permitted Transfer shall be permitted only if, as a precondition to such Transfer, the transferee
agrees in writing to be bound by each of the terms of, and to assume all of the obligations of such Stockholder under, this Agreement
with respect to the Subject Shares so Transferred by executing and delivering a joinder agreement, in form and substance reasonably acceptable
to Parent.
(b) Such
Stockholder hereby agrees that this Agreement and the obligations hereunder shall attach to such Stockholder’s Subject Shares and
shall be binding upon any Person to which legal or beneficial ownership shall pass, whether by operation of law or otherwise including
its successors or permitted assigns and if any involuntary Transfer of any of such Stockholder’s Subject Shares shall occur (including
a sale by such Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee
(which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and
hold such Stockholder’s Subject Shares subject to all of the restrictions, liabilities and rights under this Agreement as such Stockholder
for all purposes hereunder.
(c) Except
as otherwise expressly permitted by this Section 4.01, each Stockholder hereby agrees not to request that the Company register
the Transfer of any certificate or uncertificated interest representing any or all of the Subject Shares and each Stockholder authorizes
the Company to impose stop orders to prevent the Transfer of any of such Stockholder’s Subject Shares in violation of this Agreement.
Section 4.02. No
Solicitation. No Stockholder shall take any action that the Company would then be prohibited from taking under Section 6.03 of
the Merger Agreement.
Section 4.03. Appraisal
Rights. Each Stockholder hereby irrevocable waives and agrees not to exercise any rights (including under Section 262 of the
General Corporation Law of the State of Delaware) it may have to demand appraisal, dissent or any similar or related matter with respect
to any Subject Shares that may arise with respect to the Merger.
Section 4.04. Notice
of Certain Events. Each Stockholder shall promptly notify Parent of any fact, change or development occurring or arising after the
date hereof that causes, or would reasonably be expected to cause, any breach of any representation, warranty, covenant or agreement of
such Stockholder hereunder.
Section 4.05. Adjustments.
In the event of any stock split, stock dividend or distribution, reorganization, recapitalization, readjustment, reclassification, combination,
exchange of shares or the like of the capital stock of the Company on, of or affecting the Subject Shares, then the terms of this Agreement
shall apply to the Company Securities received in respect of the Subject Shares by such Stockholder immediately following the effectiveness
of the events described in this Section 4.05, as though they were Subject Shares hereunder.
Section 4.06. Directors
and Officers. Nothing in this Agreement shall limit or restrict any Stockholder who serves as a director or officer of the Company
or any of its Subsidiaries in acting in his or her capacity as a director or as an officer, as applicable, of the Company or such Subsidiary,
as applicable. Each Stockholder is entering into this Agreement solely in his or her capacity as a stockholder of the Company and nothing
herein shall not limit or affect in any manner, any such Stockholder’s actions, omissions, judgments or decisions as a director
or officer, as applicable, of the Company or any of its Subsidiaries, including, taking any action permitted by Section 6.03 of the
Merger Agreement, and no such action, omission, judgment or decision, in such Stockholder, affiliate or designee’s capacity as member
of the director or officer of the Company or any of its Subsidiaries shall violate any of such Stockholder’s agreements or obligations
under this Agreement. Parent shall not assert any claim that any action taken by such Stockholder in his capacity as a director or officer
of the Company or any of its Subsidiaries violates any provision of this Agreement.
Section 4.07. Disclosure.
Each Stockholder shall permit Parent and the Company to publish and disclose in all documents and schedules filed with the SEC, and any
press release or other disclosure document Parent or the Company determines to be necessary in connection with the Merger and the Transactions,
such Stockholder’s identity and ownership of Subject Shares and the nature of such Stockholder’s commitments under this Agreement.
Section 4.08. Additional
Shares. In the event that any Stockholder acquires record or beneficial ownership of, or the power to vote or direct the voting of,
any additional Shares or other voting interests with respect to the Company, such Shares or voting interests shall, without further action
of the parties, be deemed Subject Shares and subject to the provisions of this Agreement, the number of Shares held by such Stockholders
shall be deemed amended accordingly, and such Shares or voting interests shall automatically become subject to the terms of this Agreement.
Each Stockholder shall promptly notify Parent of any such event.
Section 4.09. Actions.
Each Stockholder hereby agrees not to commence or participate in any Action or claim, whether derivative or otherwise, against Parent,
Merger Sub, the Company or any of their respective Affiliates, or their respective boards of directors or members thereof or officers,
relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement, or the consummation of the Transactions,
including any such claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement,
or (ii) alleging a breach of any fiduciary duty of the Company Board in connection with the Merger Agreement or the Transactions,
and such Stockholder hereby agrees to take all actions necessary to opt out of any class in any class action relating to the foregoing;
provided that the foregoing shall not limit a Stockholder from (A) participating as a defendant or asserting counterclaims
in response to any claims commenced against such Stockholder relating to this Agreement, the Merger Agreement or the Transactions or (B) asserting
a claim against Parent or Merger Sub for breach of this Agreement or, to the extent permitted by the Merger Agreement and applicable Law,
the Merger Agreement.
Section 4.10. Adverse
Actions. Each Stockholder hereby covenants and agrees that such Stockholder shall not, at any time prior to the Expiration Date, take
any action that would prevent, delay, or would reasonably be expected to delay in any material respect the Transactions.
Article 5
Miscellaneous
Section 5.01. Other
Definitional and Interpretative Provisions. When a reference is made in this Agreement to a Schedule, an Article or a Section,
such reference shall be to a Schedule, an Article or a Section of this Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever
the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation”. The words “hereof”, “hereto”, “hereby”,
“herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. The word “extent”
in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean
simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended,
modified or supplemented, unless otherwise specifically indicated. When calculating the period of time before which, within which or following
which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall
be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day.
Each of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation
arises, this Agreement must be construed as if it is drafted by all the parties, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. No specific provision, representation
or warranty shall limit the applicability of a more general provision, representation or warranty.
Section 5.02. Further
Assurances. Parent and each Stockholder will each execute and deliver, or cause to be executed and delivered, all further documents
and instruments and use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations, to consummate and make effective the transactions contemplated by this Agreement.
Section 5.03. No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to the Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares
shall remain vested in and belong to the relevant Stockholder, and Parent shall have no authority to exercise any power or authority to
direct any Stockholder in the voting or disposition of any of the Subject Shares, except as otherwise provided herein.
Section 5.04. Notices.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery in person, by an internationally recognized overnight courier
service or by email transmission (upon confirmation of receipt and provided that if sent by email transmission prior to 6:00 p.m. recipient’s
local time, upon transmission (provided, no “bounce back” or similar message of non-delivery is received with respect
thereto) or if sent by email transmission after 6:00 p.m. recipient’s local time and no “bounce back” or similar
message of non-delivery is received with respect thereto, the Business Day following the date of transmission) to the respective
parties at the following coordinates (or at such other coordinates for a party as shall be specified in a notice given in accordance with
this Section 5.04):
if to Parent, to:
Nordson
Corporation
28601 Clemens Road
Westlake, Ohio 44145
Attention: Jennifer L. McDonough
Email:
with a copy (which shall not constitute notice)
to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: James P. Dougherty
Shanu Bajaj
Email:
if to any Stockholder, to the address set forth
on Schedule A opposite the name(s) of such Stockholder(s), with a copy to (which shall not constitute notice) to:
Allen Overy Shearman Sterling US LLP
599 Lexington Avenue
New York, NY 10022
Attention: Clare O’Brien
Derrick Lott
Email:
Section 5.05. Amendments;
Termination. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver
is to be effective. This Agreement shall automatically terminate without further action of any party hereto upon the earlier of (i) the
Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms, (iii) as to any Stockholder, any
amendment to the Merger Agreement that reduces the amount of or changes the form of, or imposes any material restrictions or conditions
on the payment of, the Merger Consideration or extends the Outside Date, in each case, unless such amendment has been consented to by
such Stockholder, or (iv) the mutual written agreement of each party to this Agreement (any such date under clauses (i) through
(iv) being referred to herein as the “Expiration Date”). Notwithstanding the foregoing, (i) the provisions
set forth in this Article 5 shall survive the termination of this Agreement and (ii) no termination of this Agreement shall
relieve any party hereto from liability, or otherwise limit the liability of any party hereto, for any Willful Breach of this Agreement
that occurred prior to the Expiration Date.
Section 5.06. Expenses.
All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
Section 5.07. Successors
and Assigns. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole
or in part, by operation of Law or otherwise by any of the parties without the prior written consent of the other parties. Any purported
assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and assigns.
Section 5.08. Governing
Law. This Agreement and all Actions arising under this Agreement shall be governed by and construed in accordance with the Laws of
the State of Delaware, without giving effect to any applicable principles of conflict of laws that would cause the applicable Laws of
another jurisdiction other than the State of Delaware to otherwise govern this Agreement.
Section 5.09. Jurisdiction.
The parties agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of
or in connection with, this Agreement (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates)
shall be heard and determined exclusively in the Delaware Court of Chancery; provided, however, that if the Delaware Court
of Chancery does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in the United States District
Court for the District of Delaware. Consistent with the preceding sentence, each of the parties hereby (i) submits to the exclusive
jurisdiction of such courts for the purpose of any Action arising out of or relating to this Agreement brought by either party; (ii) agrees
that service of process will be validly effected by sending notice in accordance with Section 5.04; and (iii) irrevocably
waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally
to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the Transactions may not be enforced
in or by any of the above-named courts. Process in any such Action may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as
provided in Section 5.04 shall be deemed effective service of process on such party.
Section 5.10. WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF
THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5.10.
Section 5.11. Counterparts.
This Agreement may be executed and delivered (including by electronic transmission, such as by electronic mail in “pdf” form)
in counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
Section 5.12. Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic
or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that
the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 5.13. Specific
Performance. The parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached. Each party agrees that, in the event
of any breach or threatened breach by any other party of any covenant or obligation contained in this Agreement, the non-breaching party
shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to
(a) specific performance to enforce the observance and performance of such covenant or obligation and (b) an injunction restraining
such breach or threatened breach. Each party further agrees that no other party or any other person shall be required to obtain, furnish
or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 5.13,
and each party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Each party hereto hereby waives and agrees not to assert any objections to any remedy referred to in this Section 5.13 (including
any objection on the basis that there is an adequate remedy at law or that an award of such remedy is not an appropriate remedy for any
reason at law or equity).
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.
| |
Nordson Corporation |
| |
|
| |
|
| |
By: |
/s/
Stephen Lovass |
| |
|
Name: |
Stephen Lovass |
| |
|
Title: |
Executive Vice President |
[Voting and Support Agreement
Signature Page]
| |
Stockholders |
| |
|
| |
STUPP BROS., INC. |
| |
|
| |
|
| |
By: |
/s/ John P. Stupp Jr. |
| |
|
Name: |
John P. Stupp Jr. |
| |
|
Title: |
President and Chief Executive Officer |
| |
JOHN P. STUPP JR. |
| |
|
| |
/s/ John P. Stupp Jr. |
[Voting and Support Agreement
Signature Page]
Schedule A
Name of
Stockholder |
Subject Shares |
Address for Notices
(including email) |
| Stupp Bros., Inc. |
135,000 |
John P. Stupp Jr.
3800 Weber Road
St. Louis, Missouri 63125
Email: |
| John P. Stupp Jr. |
6,394 |
John P. Stupp Jr.
3800 Weber Road
St. Louis, Missouri 63125
Email: |
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