UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 2, 2015
PMFG ACQUISITION LLC
(as successor by merger to PMFG, Inc.)
(Exact Name of registrant as specified in its charter)
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| Delaware |
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001-34156 |
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47-4374225 |
| (State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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| 14651 North Dallas Parkway, Suite 500
Dallas, Texas |
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75254 |
| (Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including area code: (513) 458-2600
PMFG, Inc.
14651 North
Dallas Parkway, Suite 500, Dallas, Texas 75254
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introductory Note
On September 3, 2015, PMFG, Inc., a Delaware corporation (“PMFG”), completed its previously announced merger with CECO
Environmental Corp., a Delaware corporation (“CECO”). The merger was completed in accordance with the Agreement and Plan of Merger, dated as of May 3, 2015 (the “Merger Agreement”), by and among PMFG, CECO, Top Gear
Acquisition Inc., a Delaware corporation and a wholly owned subsidiary of CECO (“Merger Sub I”), and Top Gear Acquisition II LLC, a Delaware limited liability company and wholly owned subsidiary of CECO (“Merger Sub II”).
Pursuant to the Merger Agreement, PMFG merged with and into Merger Sub I, with PMFG as the surviving entity (the “First Merger”), and subsequently PMFG merged with and into Merger Sub II, with Merger Sub II as the surviving entity under
the name “PMFG Acquisition LLC” (the “Second Merger” and together with the First Merger, collectively, the “Mergers”). PMFG and its successor by merger, PMFG Acquisition LLC, are collectively referred to as the
“Company” herein.
Item 1.01. Entry into a Definitive Material Agreement
On September 3, 2015, CECO entered into an Amended and Restated Credit Agreement among CECO, certain of CECO’s subsidiaries, each
lender from time to time party thereto, Bank of America as Administrative Agent, Swing Line Lender and an L/C Issuer, and each other L/C Issuer from time to time party thereto (the “CECO Credit Agreement”). The CECO Credit Agreement
provides for senior credit facilities consisting of: (a) revolving credit commitments in the aggregate amount of $80 million and (b) a term loan commitment in the aggregate amount of $170 million. The credit facilities will terminate and
all amounts outstanding thereunder will be due and payable in full on the fifth anniversary following the closing of the credit facilities.
In connection with the CECO Credit Agreement and the closing of the Mergers, the Company and its wholly owned domestic subsidiaries, through
joinder agreements, became parties to each of (i) the Subsidiary Guaranty Agreement, (ii) the Security Agreement, and (iii) the Securities Pledge Agreement, copies of which are attached hereto as Exhibit 10.1, Exhibit 10.2, and
Exhibit 10.3, respectively, and are incorporated by reference herein. Pursuant to these agreements, the Company and its wholly owned domestic subsidiaries provided guarantees, granted a security interest in substantially all their assets, and
pledged the shares of substantially all their subsidiaries, to the Administrative Agent for the benefit of the secured parties for CECO’s payment obligations under the CECO Credit Agreement.The foregoing description does not purport to be
complete and is qualified in its entirety by reference to the full text of the Subsidiary Guaranty Agreement, the Security Agreement, and the Securities Pledge Agreement.
Item 1.02 Termination of a Material Definitive Agreement.
Upon completion of the Merger, all outstanding loans and other obligations under the Credit Agreement, dated as of September 7, 2012, by
and between PMFG, Peerless Mfg. Co., Citibank, N.A., as administrative agent, and other lenders party thereto (as amended, the “PMFG Credit Agreement”) were paid in full, all outstanding letters of credit are deemed issued under the CECO
Credit Agreement and governed by the terms thereof, all accrued and unpaid interest and the lenders’ legal expenses were paid, all security, liens or other encumbrances on assets of the PMFG were released and the PMFG Credit Agreement was
terminated. No prepayment or early termination penalties or premiums were incurred as a result of the termination of the PMFG Credit Agreement. For more information about the PMFG Credit Agreement, please see the discussion under the heading
“Credit Facilities” beginning on page 37 of PMFG’s Annual Report on Form 10-K filed with the SEC September 1, 2015.
The foregoing description does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the PMFG
Credit Agreement, which was filed with the SEC as Exhibit 10.1 to PMFG’s Current Report on Form 8-K on September 11, 2012; the full text of the First Amendment to Credit Agreement, which was filed with the SEC as Exhibit 10.1 to
PMFG’s Current Report on Form 8-K on October 3, 2013; the full text of the Second Amendment to Credit Agreement, which was filed with the SEC as Exhibit 10.3 to PMFG’s Quarterly Report on Form 10-Q on May 9, 2014; and the full
text of the Third Amendment to Credit Agreement, which was filed with the SEC as Exhibit 3.4 to PMFG’s Quarterly Report on Form 10-Q on May 7, 2015, each of which is incorporated herein by reference.
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Item 2.01 Completion of Acquisition or Disposition of Assets.
On September 3, the Mergers were completed. Upon the First Merger becoming effective (the “First Step Effective Time”), each
issued and outstanding share of PMFG common stock (other than (a) shares owned by PMFG or its wholly owned subsidiaries or by CECO, Merger Sub I or Merger Sub II or (b) shares of PMFG common stock issued and outstanding immediately prior
to the First Step Effective Time that are held by any holder who has not voted in favor of the Mergers and who is entitled, pursuant to Section 262 of the Delaware General Corporation Law, to demand and properly demands appraisal of those
Shares (“Dissenting Shares”)) were converted into the right to receive, at the holder’s election, but subject to the proration and reallocation mechanisms described below, either:
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the Cash Consideration of $6.85 in cash, without interest (the “Cash Consideration”); or |
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the Stock Consideration, consisting of a number of shares of CECO common stock equal to the Exchange Ratio (as defined below), plus cash (without interest) in lieu of any fractional share of CECO common stock that would
otherwise be issued (the “Stock Consideration”). |
The actual Exchange Ratio was determined by dividing
(a) $6.85 by (b) the CECO Average Trading Price, which is the volume weighted average trading price of a share of CECO common stock on NASDAQ for the 15 consecutive trading days ending on the trading day immediately preceding the closing
date of the First Merger, as calculated by Bloomberg Financial LP under the function “VWAP,” subject to a collar so that there was a maximum Exchange Ratio of 0.6456 shares of CECO common stock for each share of PMFG common stock and a
minimum Exchange Ratio of 0.5282 shares of CECO common stock for each share of PMFG common stock. The Exchange Ratio was 0.6456 based on the CECO Average Trading Price of $9.6655 per share of CECO common stock.
At the First Step Effective Time, the holders of options to acquire shares of PMFG common stock (“PMFG Options”) and the holders of
restricted stock units for shares of PMFG common stock (“PMFG RSUs”) are entitled to receive cash of $6.85 per share less any exercise price in settlement and cancellation of their PMFG Options and PMFG RSUs.
The Merger Agreement provided that $66.2 million (or approximately 45%) of the aggregate consideration payable by CECO in respect of shares of
PMFG common stock (other than Dissenting Shares and shares owned by PMFG or its wholly owned subsidiaries, CECO, Merger Sub I or Merger Sub II), PMFG Options and PMFG RSUs would be paid in cash, and the remaining approximately 55% of the aggregate
consideration would be paid in shares of CECO common stock. The aggregate amount of cash paid in settlement of PMFG Options and PMFG RSUs was deducted from the aggregate amount of the Cash Consideration that would otherwise be paid to PMFG
stockholders in respect of shares of PMFG common stock.
At the First Step Effective Time, approximately 44.5% of the shares of PMFG
common stock converted into the right to receive the $6.85 per share Cash Consideration, for an approximate total of $64.6 million in aggregate Cash Consideration. Each of the remaining shares of PMFG common stock converted into the right to receive
0.6456 shares of CECO common stock, or an approximate total of 7,602,328 shares of CECO common stock in aggregate Stock Consideration.
In
accordance with the proration and reallocation provisions of the Merger Agreement, because the $6.85 per share Cash Consideration was oversubscribed by PMFG shareholders prior to the election deadline on September 1, 2015 at 5:00 p.m. Eastern
Time (the “Election Deadline”), (a) each PMFG share for which a valid stock election was made or for which no valid cash or stock election was made prior to the Election Deadline was automatically cancelled and converted into the
right to receive the Stock Consideration and (b) each PMFG shareholder of record that made a valid cash election prior to the Election Deadline will receive (i) the Cash Consideration for approximately 58.05% of such holder’s PMFG
shares for which a valid cash election was made and (ii) the Stock Consideration for approximately 41.95% of such holder’s PMFG Shares for which a valid cash election was made.
No fractional shares of CECO common stock will be issued to any PMFG shareholder in the First Merger. Each PMFG shareholder who would
otherwise have been entitled to receive a fraction of a share of CECO
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common stock in the First Merger will receive cash in an amount equal to the product obtained by multiplying (i) the fractional share interest which such holder would otherwise be entitled
to receive by (ii) $9.6655 (which represents the CECO Average Trading Price).
In addition, holders of outstanding PMFG options and
restricted stock units will receive an aggregate amount of cash equal to approximately $1.6 million as consideration for the cancellation of the options and restricted stock units held by them immediately prior to the effective time of the First
Merger.
The foregoing description does not purport to be complete and is subject to, and qualified in its entirety by, the full text of
the Merger Agreement, which was filed as Exhibit 2.1 to PMFG’s Current Report on Form 8-K, filed with the SEC on May 4, 2015, and which is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
To the extent required by Item 3.01, the information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated
into this Item 3.01 by reference.
In connection with the completion of the merger on September 3, 2015, the Company notified
the NASDAQ Global Market (“NASDAQ”) that the merger had been completed, and requested the trading of PMFG’s common stock on the NASDAQ be suspended prior to the opening of trading on September 4, 2015. On September 3, 2015,
NASDAQ filed with the Securities and Exchange Commission a Form 25, Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to strike
PMFG’s common stock from listing on NASDAQ and to withdraw PMFG’s common stock from registration under Section 12(b) of the Exchange Act. PMFG Acquisition LLC, as successor by merger to PMFG, intends to file a Form 15 with the SEC to
suspend the Company’s reporting obligations with respect to its common stock under Sections 13 and 15(d) of the Exchange Act ten days after the filing of the Form 25.
Item 3.03 Material Modification to Rights of Security Holders.
To the extent required by Item 3.03, the information set forth under Item 2.01 and Item 3.01 of this Current Report on Form 8-K
is incorporated into this Item 3.03 by reference.
At the First Step Effective Time, holders of PMFG common stock immediately prior
to such time ceased to have any rights as stockholders in the Company (other than the right to receive either the Cash Consideration or the Stock Consideration pursuant to the Merger Agreement).
Item 5.01 Changes in Control of Registrant.
To the extent required by Item 5.01, the information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated
into this Item 5.01 by reference.
As a result of the Mergers, a change in control of the Company occurred. PMFG Acquisition LLC (as
successor in the Second Merger to PMFG) is a wholly owned subsidiary of CECO.
In connection with the CECO Credit Agreement, CECO has
pledged all the issued and outstanding shares of the Company, to the Administrative Agent for the benefit of the secured parties as collateral security for CECO’s payment obligations under the CECO Credit Agreement.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Officers.
To the extent required by Item 5.02, the information set forth under Item 2.01 of this Current Report on Form 8-K is
incorporated into this Item 5.02 by reference.
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Departure and Appointment of Directors and Executive Officers
As of the First Step Effective Time, in accordance with the Merger Agreement, the directors of Merger Sub I immediately prior to the First Step
Effective Time (Jason DeZwirek and Jeffery Lang) became the directors of PMFG as the surviving entity in the First Merger. As a result, Peter Burlage, Charles Gillman, Kenneth Hanks, Robert McCashin, R. Clayton Mulford and Kenneth Shubin Stein are
no longer directors of PMFG.
As of the effective time of the Second Merger (the “Second Step Effective Time”), in accordance
with the Merger Agreement, the managers of Merger Sub II immediately prior to the Second Step Effective Time continued to serve as the managers of Merger Sub II, as the surviving entity in the Second Merger under the name “PMFG Acquisition
LLC”. In accordance with the Merger Agreement and limited liability company agreement of Merger Sub II, the size of the Board of Managers of the surviving limited liability company is one member and Jason DeZwirek became the sole manager of the
surviving limited liability company.
As of the First Step Effective Time, in accordance with the Merger Agreement, the officers of Merger
Sub I immediately prior to the First Step Effective Time (Jason DeZwirek, Chairman; Jeffery Lang, Chief Executive Officer and President; and Edward Prajzner, Chief Financial Officer, Treasurer and Secretary) became the officers of PMFG as the
surviving entity in the First Merger. As a result, (a) Peter Burlage is no longer Chief Executive Officer and President of PMFG, (b) Ronald McCrummen is no longer Executive Vice President, Chief Financial Officer and Corporate Secretary of
PMFG, (c) John Conroy is no longer Executive Vice President, Americas Process Products, (d) Timothy Shippy is no longer Vice President, Environmental Systems and (e) David Taylor is no longer Vice President, Asia Pacific. Messrs.
Conroy, Shippy and Taylor are expected to remain employed by PMFG Acquisition LLC as successor to PMFG.
As of the Second Step Effective
Time, in accordance with the Merger Agreement, the officers of Merger Sub II immediately prior to the Second Step Effective Time continued to serve as the officers of Merger Sub II, as the surviving entity in the Second Merger under the name
“PMFG Acquisition LLC”. As of the Second Step Effective Time, Jason DeZwirek became Chairman, Jeffery Lang became Chief Executive Officer and President, and Edward Prajzner became Chief Financial Officer, Treasurer and Secretary of the
surviving limited liability company.
Termination of Equity Plans
As of the First Step Effective Time, each of the Company’s 1995 Stock Option and Restricted Stock Plan, 2001 Stock Option and Restricted
Stock Plan and 2007 Stock Incentive Plan was terminated.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
To the extent required by Item 5.03, the information set forth under Item 2.01 of this Current Report on Form 8-K is
incorporated into this Item 5.03 by reference.
Pursuant to the Merger Agreement, as of the First Step Effective Time, PMFG’s
certificate of incorporation and bylaws were amended and restated in their entirety. Such amended and restated certificate of incorporation and amended and restated bylaws of PMFG are filed as Exhibit 3.1 and Exhibit 3.2, respectively, and are
incorporated herein by reference.
Pursuant to the Merger Agreement, as of the Second Step Effective Time, the certificate of formation of
Merger Sub II in effect immediately prior to the Second Step Effective Time became the certificate of formation of the surviving entity, except that the name of Merger Sub II was changed to “PMFG Acquisition LLC.” Also, as of the Second
Step Effective Time, the limited liability company agreement of Merger Sub II as in effect immediately prior to the Second Step Effective Time became the limited liability company agreement of the surviving limited liability company, except that the
name of the surviving limited liability company was changed to “PMFG Acquisition LLC.” The certificate of formation and limited liability company agreement of the surviving entity of the Second Merger are filed as Exhibit 3.3 and Exhibit
3.4, respectively, and are incorporated herein by reference.
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Item 5.07. Submission of Matters to a Vote of Security Holders.
On September 2, 2015, PMFG held a special meeting of stockholders (the “Special Meeting”). The stockholders approved all of the
proposals specified in the joint proxy statement/prospectus dated as of July 31, 2015 (the “Joint Proxy Statement/Prospectus”). The number of shares entitled to vote at the Special Meeting was 21,202,725, representing the number of
shares outstanding as of July 30, 2015, the record date of the Special Meeting.
Proposal 1: Adoption of the Merger Agreement.
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| SHARES VOTED FOR |
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SHARES VOTED AGAINST |
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SHARES ABSTAINING |
| 13,051,700 |
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277,287 |
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1,286,281 |
Proposal 2: Approval of the Compensation that May Become Payable by PMFG to its Named Executive Officers on a Non-Binding, Advisory Basis.
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| SHARES VOTED FOR |
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SHARES VOTED AGAINST |
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SHARES ABSTAINING |
| 10,867,922 |
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2,067,783 |
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1,679,563 |
Proposal 3: Approval of any Proposal Made by the Chair of the Special Meeting to Adjourn the Special Meeting.
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| SHARES VOTED FOR |
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SHARES VOTED AGAINST |
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SHARES ABSTAINING |
| 12,728,827 |
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483,968 |
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1,402,473 |
Item 9.01. Financial Statements and Exhibits.
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| Exhibit
Number |
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Description |
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| 2.1 |
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Agreement and Plan of Merger by and among PMFG, Inc., CECO Environmental Corp., Top Gear Acquisition Inc. and PMFG Acquisition LLC (formerly known as Top Gear Acquisition II LLC), dated as of May 3, 2015. (incorporated by reference
to Exhibit 2.1 to the Form 8-K filed by PMFG, Inc. with the SEC on May 4, 2015).* |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of PMFG, Inc. |
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| 3.2 |
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Amended and Restated Bylaws of PMFG, Inc. |
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| 3.3 |
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Certificate of Formation of PMFG Acquisition LLC ( formerly known as Top Gear Acquisition II LLC) |
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| 3.4 |
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Limited Liability Company Agreement of PMFG Acquisition LLC PMFG Acquisition LLC ( formerly known as Top Gear Acquisition II LLC) |
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| 10.1 |
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Subsidiary Guaranty Agreement, dated August 27, 2013 (incorporated by reference to Exhibit 10.3 of the CECO Environmental Corp.’s Form 8-K filed with the SEC on August 30, 2013) |
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| 10.2 |
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Security Agreement, dated August 27, 2013 (incorporated by reference to Exhibit 10.4 of the CECO Environmental Corp.’s Form 8-K filed with the SEC on August 30, 2013) |
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| 10.3 |
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Securities Pledge Agreement, dated August 27, 2013 (incorporated by reference to Exhibit 10.5 of the CECO Environmental Corp.’s Form 8-K filed with the SEC on September 3, 2015) |
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Schedules and exhibits have been omitted pursuant to item 601(b)(2) of Regulation S-K. The registrant agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted schedule or exhibit
upon request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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| Date: September 3, 2015 |
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PMFG ACQUISITION LLC, as successor
to PMFG, Inc. |
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By: |
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/s/ Edward J. Prajzner |
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Edward J. Prajzner |
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Chief Financial Officer, Treasurer and Secretary |
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Exhibit Index
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| Exhibit
Number |
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Description |
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| 2.1 |
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Agreement and Plan of Merger by and among PMFG, Inc., CECO Environmental Corp., Top Gear Acquisition Inc. and PMFG Acquisition LLC (formerly known as Top Gear Acquisition II LLC), dated as of May 3, 2015. (incorporated by
reference to Exhibit 2.1 to the Form 8-K filed by PMFG, Inc. with the SEC on May 4, 2015).* |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of PMFG, Inc. |
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| 3.2 |
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Amended and Restated Bylaws of PMFG, Inc. |
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| 3.3 |
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Certificate of Formation of PMFG Acquisition LLC ( formerly known as Top Gear Acquisition II LLC) |
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| 3.4 |
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Limited Liability Company Agreement of PMFG Acquisition LLC PMFG Acquisition LLC ( formerly known as Top Gear Acquisition II LLC) |
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| 10.1 |
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Subsidiary Guaranty Agreement, dated August 27, 2013 (incorporated by reference to Exhibit 10.3 of the CECO Environmental Corp.’s Form 8-K filed with the SEC on August 30, 2013) |
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| 10.2 |
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Security Agreement, dated August 27, 2013 (incorporated by reference to Exhibit 10.4 of the CECO Environmental Corp.’s Form 8-K filed with the SEC on August 30, 2013) |
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| 10.3 |
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Securities Pledge Agreement, dated August 27, 2013 (incorporated by reference to Exhibit 10.5 of the CECO Environmental Corp.’s Form 8-K filed with the SEC on September 3, 2015) |
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Schedules and exhibits have been omitted pursuant to item 601(b)(2) of Regulation S-K. The registrant agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted schedule or exhibit
upon request. |
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Exhibit 3.1
PMFG, INC.
THIRD AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
(giving effect to all amendments through September 3, 2015)
ARTICLE I
The name of
the corporation is PMFG, Inc. (the “Company”).
ARTICLE II
The address of the Company’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of
Wilmington, County of New Castle, Delaware 19801. The name of the Company’s registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Company
is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as amended (the “DGCL”).
ARTICLE IV
Section 1. Authorized Capital Stock. The Company is authorized to issue one class of capital stock. The total number of shares of
capital stock that the Company is authorized to issue is 100 shares. All shares shall be Common Stock par value $0.01 per share and are to be of one class.
Section 2. Common Stock Voting. Holders of Common Stock are entitled to one vote for each share of Common Stock held of record by
such holder as of the record date for any meeting of stockholders on each matter submitted to a vote of such holders of Common Stock at such meeting of stockholders.
ARTICLE V
The Board
may adopt, amend or repeal the Bylaws of the Company. Any Bylaw adopted or amended by the Board under the powers conferred hereby may be amended or repealed by the Board (except as specified in any such Bylaw so adopted or amended) or by the
stockholders by the affirmative vote of holders of at least two-thirds of the Common Stock. The stockholders may adopt, amend or repeal the Bylaws of the Company in any respect and at any time by the affirmative vote of at least two-thirds of the
Common Stock, voting together as a single class. The Company may in its Bylaws confer powers upon the Board in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board by applicable law.
ARTICLE VI
Section 1. Action Without a Meeting. Any action required or permitted to be taken by the stockholders of the Company may be
taken without a meeting upon the consent of stockholders of the Company who would have been entitled to cast minimum number of votes that would be necessary to authorize the action at a meeting at which all shareholders entitled to vote thereon were
present and voting, subject to compliance with the DGCL.
Section 2. Special Meetings. Special meetings of the stockholders of the Company
(x) may be called by (i) the Chairman of the Board of Directors (the “Chairman”), (ii) the Chief Executive Officer of the Company (the “Chief Executive Officer”), or (iii) the
President of the Company (the “President”) and (y) shall be called by the Secretary of the Company (the “Secretary”) within 10 calendar days after receipt of the written request of a majority of
the total number of Directors that the Company would have if there were no vacancies (the “Whole Board”).
At any
annual meeting or special meeting of stockholders of the Company, only such business will be conducted or considered as has been brought before such meeting in the manner provided in the Bylaws of the Company.
ARTICLE VII
Section 1. Number, Election, and Terms of Directors. The number of the Directors of the Company shall not be less than
two and otherwise will be fixed from time to time in the manner provided in the Bylaws of the Company. Election of Directors of the Company need not be by written ballot unless the Bylaws so provide.
Section 2. Nomination of Director Candidates. Advance notice of stockholder nominations for the election of Directors
must be given in the manner provided in the Bylaws of the Company.
Section 3. Newly Created Directorships and
Vacancies. Newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board resulting from death, resignation, disqualification, removal, or other cause will be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board, or by a sole remaining Director.
Section 4. Removal. Stockholders may remove any Director from office only for cause and only in the manner provided in
this Article VII, Section 4. The affirmative vote of the holders of two-thirds of the voting power of the outstanding Common Stock may remove such Director or Directors for cause.
ARTICLE VIII
To the
full extent permitted by the DGCL or any other applicable law currently or hereafter in effect, no Director of the Company will be personally liable to the Company or its stockholders for or with respect to any acts or omissions in the performance
of his or her duties as a Director of the Company. Any repeal or modification of this Article VIII will not adversely affect any right or protection of a Director of the Company existing prior to such repeal or modification.
ARTICLE IX
Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that the person is or was a
director or an officer of the Company, or is or was serving at the request of the Company, while a director or officer of the Company, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such Proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Company to the fullest extent permitted or required by the DGCL, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such
amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith;
provided, however, that, except as provided in Section 3 of this Article IX with respect to Proceedings to enforce rights to indemnification, the Company shall indemnify any such Indemnitee in connection with a Proceeding (or part thereof)
initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Company.
Section 2. Right to Advancement of Expenses. The right to indemnification conferred in Section 1 of this
Article IX shall include the right to be paid by the Company the expenses (including, without limitation, attorneys’ fees and expenses) incurred in defending any such Proceeding in advance of its final disposition (an
“Advancement of Expenses”); provided, however, that, if the DGCL so requires, an Advancement of Expenses incurred by an Indemnitee in such person’s capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Company of an undertaking (an “Undertaking”), by or on behalf of
such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “Final Adjudication”) that such Indemnitee is not entitled to be
indemnified for such expenses under this Section 2 or otherwise. The rights to indemnification and to the Advancement of Expenses conferred in Sections 1 and 2 of this Article IX shall be contract rights and such rights shall continue
as to an Indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of this Article IX is not paid
in full by the Company within 60 calendar days after a written claim has been received by the Company, except in the case of a claim for an Advancement of Expenses, in which case the applicable period shall be 20 calendar days, the Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of an
Undertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the
Indemnitee to enforce a right to an Advancement of Expenses) it shall be a defense that, and (ii) any suit brought by the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the Company shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Company (including its Board of Directors, independent legal counsel or
stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an
actual determination by the Company (including its Board of Directors, independent legal counsel or stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an Advancement of Expenses hereunder, or brought by
the Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such Advancement of Expenses, under this Article IX or otherwise shall
be on the Company.
Section 4. Non-Exclusivity of Rights. The rights to indemnification and to the Advancement of
Expenses conferred in this Article IX shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, the Company’s Certificate of Incorporation, Bylaws, any agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Indemnification of Employees and Agents of the Company. The Company may, to the extent authorized from time
to time by the Board of Directors, grant rights to indemnification and to the Advancement of Expenses to any employee or agent of the Company or to any person who serves at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article IX with respect to the indemnification and
Advancement of Expenses of directors and officers of the Company or as otherwise permitted or required by the DGCL.
Exhibit 3.2
Amended and Restated Bylaws
ARTICLE I
NAME AND
OFFICES
Section 1. The name of the corporation is “PMFG, Inc.”
Section 2. The corporation may have offices at such places both within and without the State of Delaware as the board of directors may
from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders shall be held at such place, if any, either within or without the State of Delaware, as shall
be designated from time to time by resolution of the board of directors and stated in the notice of meeting.
Section 2. An annual
meeting of the stockholders, commencing with the year 2016, shall be held on April 1, if not a legal holiday and, if a legal holiday, then on the next secular day following at such location as may be specified by the board of directors, when
they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting.
Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles
of incorporation, may be called at any time by the president, or a majority of the board of directors, or by stockholders entitled to cast at least twenty percent of the votes that all stockholders are entitled to cast at the particular meeting,
upon written request delivered to the secretary of the corporation. Such request shall state the general nature of the business to be transacted at the proposed meeting. Upon receipt of any such request, it shall be the duty of the secretary to fix
the time of the meeting which, if the meeting is called pursuant to a statutory right, shall be held not more than sixty days after the receipt of the request. If the secretary shall neglect to fix the time of the meeting, the person or persons
calling the meeting may do so.
Section 4. Written notice of every meeting of the shareholders shall be given by or at the direction
of the secretary or other authorized person to each shareholder entitled to vote thereat not less than ten days nor more than 60 days before the meeting, unless a greater period of notice is required by law. If the secretary or other authorized
person neglects or refuses to give notice of a meeting, the person or persons calling the meeting may do so.
Section 5. Business
transacted at all special meetings of stockholders shall be limited to the purposes stated in the notice, provided that whenever the language of a proposed resolution is included in the notice, the meeting considering the resolution may without
further notice adopt it with such clarifying or other amendments as do not enlarge its original purpose.
Section 6. The holders of a
majority of the issued and outstanding shares entitled to vote, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise
provided by statute or by the articles of incorporation or by these bylaws. If, however, any meeting of stockholders cannot be organized because a quorum has not attended, the stockholders entitled to vote thereat, present in person or by proxy,
shall have power, except as otherwise provided by statute, to adjourn the meeting to such time and place as they may determine, but in the case of any meeting called for the election of directors, such meeting may be adjourned only from day to day
or for such longer periods not exceeding fifteen days each as the holders of a majority of the shares present in person or by proxy shall direct. Those stockholders entitled to vote who attend a meeting called for the election of directors that has
been previously adjourned for lack of a quorum, although less than a quorum, shall nevertheless constitute a quorum for the purpose of electing directors.
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Those stockholders entitled to vote who attend a meeting of stockholders that has been previously
adjourned for one or more periods aggregating at least fifteen days because of an absence of a quorum, although less than a quorum, shall nevertheless constitute a quorum for the purpose of acting upon any matter set forth in the notice of the
meeting if the notice states that those stockholders who attend the adjourned meeting shall nevertheless constitute a quorum for the purpose of acting upon the matter. At any adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as originally notified.
Section 7. Unless otherwise
required by law or the Certificate of Incorporation the election of directors shall be decided by a plurality of the votes cast at a meeting of the stockholders by the holders of stock entitled to vote in the election. Except as otherwise provided
by law or by these bylaws, whenever any corporate action is to be taken by vote of the shareholders, other than the election of directors , it shall be authorized upon receiving the affirmative vote of a majority of the votes cast by all
shareholders entitled to vote thereon.
Section 8. Unless otherwise provided in the Certificate of Incorporation, every stockholder
shall be entitled to one vote for every share standing in the stockholder’s name on the books of the corporation. The articles may restrict the number of votes that a single holder or beneficial owner, or such a group of holders or owners, of
shares of any class or series may directly or indirectly cast in the aggregate for the election of directors or on any other matter coming before the stockholders on the basis of any facts or circumstances that are not manifestly unreasonable and as
otherwise provided by law. A stockholder may vote in person or by proxy authorized in accordance with law.
Section 9. Any action to
be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action to be so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by
certified or registered mail, return receipt requested) to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 9, written consents signed by a sufficient number of holders to take action are delivered to the corporation as aforesaid. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those stockholders who have not consented in writing, and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.
Section 10.
(a) In order
that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than 60 nor less than ten days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the
record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such
determination. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the determination of stockholders entitled to vote at the adjourned meeting and in such case shall also fix as the record date for
stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the determination of stockholders entitled to vote therewith at the adjourned meeting.
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(b) In order that the corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be
more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting: (i) when no prior action by the board of directors is required by law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery (by hand, or by certified or registered mail, return receipt requested) to its registered office in the State of Delaware, its principal place of business, or an officer or agent of
the corporation having custody of the book in which proceedings of meetings of stockholders are recorded and (ii) if prior action by the board of directors is required by law, the record date for such purpose shall be at the close of business
on the day on which the board of directors adopts the resolution taking such prior action.
ARTICLE III
DIRECTORS
Section 1.
The number of directors which shall constitute the whole board shall be two. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this article, and each director shall hold office until
his or her successor is elected and qualified. Directors need not be stockholders.
Section 2. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors shall be filled by a majority of the remaining number of the board, although less than a quorum, and each person so elected shall be a director to serve for the balance
of the unexpired term.
Section 3. Any director may resign at any time by notice given in writing or by electronic transmission to
the corporation. Such resignation shall take effect at the date of receipt of such notice by the corporation or at such later time as is therein specified.
Section 4. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised and done by the stockholders.
Section 5. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of
Delaware. One or more directors may participate in a meeting of the board by means of conference telephone or other electronic technology by means of which all persons participating in the meeting can hear each other.
Section 6. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the
stockholders at the meeting at which such directors were elected and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a majority of the whole board shall be present. In
the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter provided for such meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to
time be determined by resolution of at least a majority of the board at a duly convened meeting, or by unanimous written consent.
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Section 8. Special meetings of the board may be called by the president on one day’s
notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors.
Section 9. At all meetings of the board a majority of the directors in office shall be necessary to constitute a quorum for the
transaction of business, and the acts of a majority of the directors present and voting at a meeting at which a quorum is present shall be the acts of the board of directors, except as may be otherwise specifically provided by statute or by the
articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 10. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if, prior or
subsequent to the action, a consent or consents thereto by all of the directors in office is filed with the secretary of the corporation.
Section 11. The board of directors may, by resolution adopted by a majority of the whole board, establish one or more committees
consisting of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee
to the extent provided in such resolution or in these bylaws, shall have and exercise all of the powers and authority of the board of directors in the management of the business and affairs of the corporation except as otherwise restricted by law.
In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint
another director to act at the meeting in the place of any such absent or disqualified member. A committees shall keep regular minutes of the proceedings and report the same to the board when required.
ARTICLE IV
NOTICES
Section 1. Except as otherwise permitted herein, notices to directors and stockholders shall be given to the person either
personally or by sending a copy thereof by first class or express mail, postage prepaid, or courier service, charges prepaid, to his or her postal address appearing on the books of the corporation or, in the case of directors, supplied by him or her
to the corporation for the purpose of notice. Without limiting the manner by which notice otherwise may be given effectively to stockholders, notice of meetings may be given to stockholders by means of electronic transmission in accordance with
applicable law. Notice in the manner set forth above shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a courier service for delivery to that person. Notice shall be given by the
corporation not less than ten days nor more than 60 days before the meeting (unless a different time is specified by law) to every stockholder entitled to vote at the meeting as of the record date for determining the stockholders entitled to notice
of the meeting.
Notice may also be given by facsimile transmission, e-mail or other electronic communication to the person’s
facsimile number or address for e-mail or other electronic communications supplied by him or her to the corporation for the purpose of notice. Such facsimile or electronic notice shall be deemed given to the person entitled thereto when sent.
A notice of meeting shall specify the day and hour and geographic location, if any, of the meeting and any other information required by law.
Notices of special meetings shall also specify the purpose or purposes for which the meeting has been called. When a meeting of stockholders is adjourned, it shall not be necessary to give any notice of the adjourned meeting or of the business to be
transacted at an adjourned meeting, other than by announcement at the meeting at which the adjournment is taken, unless the board fixes a new record date for the adjourned meeting.
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Section 2. Whenever any written notice is required to be given under the provisions of law
or the articles of incorporation or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of the notice. Neither
the business to be transacted at, nor the purpose of, a meeting need be specified in the waiver of notice of the meeting. Attendance of a person at any meeting shall constitute a waiver of notice of the meeting except where a person attends a
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting was not lawfully called or convened.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be appointed by the board of directors and shall be a president, a secretary
and a treasurer. The president and secretary shall be natural persons of full age; the treasurer may be a corporation but, if a natural person, shall be of full age. The board of directors may also choose vice-presidents and one or more assistant
secretaries and assistant treasurers. Any number of the aforesaid offices may be held by the same person.
Section 2. The board of
directors, immediately after each annual meeting of stockholders, shall elect a president, who may, but need not be a director, and the board shall also annually choose a secretary and a treasurer who need not be members of the board.
Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board.
Section 4.
The powers and duties of the officers of the corporation shall be as provided from time to time by resolution of the board of directors. In the absence of such resolution, the respective officers shall have the powers and shall discharge the duties
customarily and usually held and performed by like officers of corporations similar in organization and business purposes to the corporation subject to the control of the board of directors.
Section 5. The salaries of all officers and agents of the corporation shall be fixed by the board of directors.
Section 6. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or
appointed by the board of directors may be removed with or without cause by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors.
Section 7. All contracts of the corporation shall be executed on behalf of the corporation by (a) the president or any vice
president, (b) such other officer or employee of the corporation authorized in writing by the president, with such limitations or restrictions on such authority as he or she deems appropriate or (c) such other person as may be authorized
by the board of directors, and, if required, the seal of the corporation shall be thereto affixed and attested by the secretary or an assistant secretary.
ARTICLE VI
SHARES
Section 1. The shares of stock of the corporation shall be represented by certificates; provided that the board of directors may
provide by resolution or resolutions that some or all of any class or series shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock. If shares are represented by certificates, such
certificates shall be in the form, other than bearer form, approved by the board of directors. The certificates representing shares of stock of each class shall be signed by, or in the name of, the corporation by the chairman, any vice chairman, the
president or any vice president, and by the secretary, any assistant secretary, the treasurer or any assistant treasurer. Any or all such signatures may be facsimiles. Although any officer, transfer agent or registrar whose manual or facsimile
signature is affixed to such a certificate ceases to be such officer, transfer agent or registrar before such certificate has been issued, it may nevertheless be issued by the corporation with the same effect as if such officer, transfer agent or
registrar were still such at the date of its issue.
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Section 2. Where a certificate is signed by a transfer agent or an assistant transfer agent
or a registrar, the signature of any president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the corporation, such
certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had
not ceased to be such officer or officers of the corporation.
Section 3. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
ARTICLE VII
GENERAL PROVISIONS
Section 1. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person
or persons as the board of directors may from time to time designate.
Section 2. The fiscal year of the corporation shall be fixed
by resolution of the board of directors.
Section 3. These bylaws are adopted subject to any applicable law and the Certificate of
Incorporation. Whenever these bylaws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.
ARTICLE VIII
AMENDMENTS
Section 1. These bylaws may be altered, amended or repealed by a majority vote of the stockholders entitled to vote thereon at
any regular or special meeting duly convened after notice to the stockholders of that purpose or by a majority vote of the members of the board of directors at any regular or special meeting duly convened after notice to the directors of that
purpose, subject always to the power of the stockholders to change such action by the directors and subject to other statutory restrictions.
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Exhibit 3.3
CERTIFICATE OF FORMATION
OF
PMFG ACQUISITION
LLC
(FORMERLY KNOWN AS TOP GEAR ACQUISITION II LLC)
1. The name of the limited liability company is “PMFG Acquisition LLC” (the
“Company”) (formerly known as “Top Gear Acquisition II LLC”).
2. The
address of the Company’s registered office in the State of Delaware is: Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of the Company’s registered agent at such address is: The
Corporation Trust Company.
3. The term of the Company shall be perpetual.
4. (a) Every person who is or was a manager, director or officer of the
Company shall be indemnified by the Company to the fullest extent allowed by applicable law against all liabilities and expenses imposed upon or incurred by that person in connection with any proceeding in which that person may be made, or
threatened to be made, a party, or in which that person may become involved by reason of that person being or having been a manager, director or officer of or serving or having served in any capacity with any other enterprise at the request of the
Company, whether or not that person is a manager, director or officer or continues to serve the other enterprise at the time the liabilities or expenses arc imposed or incurred.
(b) To the fullest extent permitted by applicable law, the Company is authorized to provide indemnification
of (and advancement of expenses to) agents of the Company (and any other persons to which applicable law -permits the Company to provide indemnification) through provisions of the Company’s limited liability company operating agreement,
agreements with such agents or other persons, votes of members or disinterested managers or otherwise, in excess of the indemnification and advancement otherwise permitted by applicable law, subject only to limits created by applicable law
(statutory or non-statutory) with respect to actions for breach of duty to the Company, its members and others.
(c) Neither any amendment nor repeal of this Paragraph 4, nor the adoption of any provision of this
Certificate of Formation inconsistent with this Paragraph 4, shall eliminate or reduce the effect of this Paragraph 4 in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Paragraph 4, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
Exhibit 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
PMFG ACQUISITION LLC
(FORMERLY KNOWN AS TOP GEAR ACQUISITION II LLC)
This Limited Liability Company Agreement (this “Agreement”) is made and entered into by CECO ENVIRONMENTAL CORP., a Delaware
corporation, as the sole member (the “Member”) of TOP GEAR ACQUISITION II LLC, a Delaware limited liability company (the “Company”).
ARTICLE I
FORMATION AND
MEMBERSHIP
SECTION 1.01 Formation. The Company was originally formed as a Delaware limited liability company on April 30, 2015,
pursuant to Section 18-214 of the Delaware Limited Liability Company Act (the “Act”). The Act shall govern the rights and liabilities of the parties hereto except as otherwise expressly stated.
ARTICLE II
OFFICES, NAME,
ETC.
SECTION 2.01 Principal Office. The principal office of the Company and where records of the Company are kept is 4625 Red
Bank Road, Cincinnati, Ohio 45227, or such other place within or without the State of Delaware as may be determined from time to time by the Member.
SECTION 2.02 Name. The business of the Company shall be conducted under the name of “Top Gear Acquisition II LLC” or such
other name as the Board (as defined below) may determine from time to time.
SECTION 2.03 Term. The term of the Company shall
continue until terminated as hereinafter provided.
SECTION 2.04 Resident Agent. The name and address of the Company’s
resident agent in Delaware shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Board may change the Company’s registered agent from time to time.
SECTION 2.05 Business Ventures. The Member may engage independently or with others in other business ventures of every nature and
description, and the Company shall not have any rights in and to such independent ventures or the income or profits derived therefrom.
ARTICLE III
PURPOSES AND
POWERS
SECTION 3.01 Purpose. The Company shall be a single member limited liability company organized under the laws of the
State of Delaware. The Member is the sole member of the Company. The Company may engage in any and all other lawful acts or activities permitted under the Act.
SECTION 3.02 Powers. In furtherance of the purposes of the Company as set forth in
Section 3.01 and in addition to those powers provided in the Act, the Company hereby has the additional power and authority to enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection
with, or incidental to, the accomplishment of the purposes of the Company, so long as said activities and contracts may be lawfully carried on or performed by a limited liability company under the Act.
ARTICLE IV
LIABILITY OF
MANAGERS
SECTION 4.01 A Manager of the Company shall stand in a fiduciary relation to the Company and shall perform his or her duties
as a Manager, including the Manager’s duties as a member of any committee of the Board upon which the Manager may serve, in good faith, in a manner the Manager reasonably believes to be in the best interests of the Company, and with such care,
including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances. In performing his or her duties, a Manager shall be entitled to rely in good faith on information, opinions, reports or
statements, including financial statements and other financial data, in each case prepared or presented by any of the following: (a) one or more officers or employees of the Company whom the Manager reasonably believes to be reliable and
competent in the matters presented; (b) legal counsel, public accountants or other persons as to matters which the Manager reasonably believes to be within the professional or expert competence of such persons; or (c) a committee of the
Board upon which the Manager does not serve, duly designated in accordance with law, as to matters within its designated authority, which committee the Manager reasonably believes to merit confidence. A Manager shall not be considered to be acting
in good faith if the Manager has knowledge concerning the matter in question that would cause the Manager’s reliance to be unwarranted.
SECTION 4.02 In discharging the duties of their respective positions, the Board, committees of the Board and individual Managers may, in
considering the best interests of the Company, consider the effects of any action upon employees, suppliers and customers of the Company and communities in which offices or other establishments of the Company are located, and all other pertinent
factors. The consideration of these factors shall not constitute a violation of Section 4.01 above.
SECTION 4.03 Absent breach of
fiduciary duty, lack of good faith or self-dealing, actions taken as a Manager or any failure to take any action shall be presumed to be in the best interests of the Company.
SECTION 4.04 A Manager shall not be personally liable, as such, for monetary damages for any action taken, or any failure to take any action,
unless: (a) the Manager has breached or failed to perform the duties of his or her office under Sections 4.01 through 4.03 above; and (b) the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness.
SECTION 4.05 The provisions of Section 4.04 above shall not apply to: (a) the
responsibility or liability of a Manager pursuant to any criminal statute; or (b) the liability of a Manager for the payment of taxes pursuant to local, state or federal law.
SECTION 4.06 Neither any amendment nor repeal of this Article IV, nor the adoption of any provision of this Agreement inconsistent with this
Article IV, shall eliminate or reduce the effect of this Article IV in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article IV, would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
ARTICLE V
INDEMNIFICATION OF OFFICERS, MANAGERS, EMPLOYEES AND AGENTS
SECTION 5.01 The Company shall indemnify any Manager, director or officer, and may indemnify any other employee or agent, who was or is a
party to, or is threatened to be made a party to, or who is called as a witness in connection with, any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or
in the right of the Company, by reason of the fact that such person is or was a Manager, director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a Manager, director, officer, employee or agent of
another domestic or foreign limited liability company, corporation, for profit or not-for-profit, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in
settlement, actually and reasonably incurred by him or her in connection with such action, suit or proceeding unless the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful
misconduct or recklessness.
SECTION 5.02 The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article V shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any organizational document, bylaw, agreement, contract, vote of members or Managers or otherwise,
both as to action in his or her official capacity and as to action in another capacity while holding such office. It is the policy of the Company that indemnification of, and advancement of expenses to, Managers, directors and officers of the
Company shall be made to the fullest extent permitted by law. To this end, the provisions of this Article V shall be deemed to have been amended for the benefit of Managers, directors and officers of the Company effective immediately upon any
modification of the Act or any modification, or adoption of any other law that expands or enlarges the power or obligation of limited liability companies organized under the Act to indemnify, or advance expenses to, Managers, directors and officers
of limited liability companies.
SECTION 5.03 The Company shall pay expenses incurred by an officer or Manager or director, and may pay
expenses incurred by any other employee or agent, in defending an action, or proceeding referred to in this Article V in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Company.
SECTION 5.04 The indemnification and advancement of expenses provided by, or granted pursuant to,
this Article V shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Manager, director officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of
such person.
SECTION 5.05 The Company shall have the authority to create a fund of any nature, which may, but need not, be under the
control of a trustee, or otherwise secure or insure in any manner, its indemnification obligations, whether arising under the provisions of this Article V or otherwise. This authority shall include, without limitation, the authority to:
(a) deposit funds in trust or in escrow; (b) establish any form of self-insurance; (c) secure its indemnity obligation by grant of a security interest, mortgage or other lien on the assets of the Company; or (d) establish a
letter of credit, guaranty or surety arrangement for the benefit of such persons in connection with the anticipated indemnification or advancement of expenses contemplated by this Article V. The provisions of this Article V shall not be deemed to
preclude the indemnification of, or advancement of expenses to, any person who is not specified in Section 5.01 but whom the Company has the power or obligation to indemnify, or to advance expenses for, under the provisions of the Act or
otherwise. The authority granted by this Section 5.05 shall be exercised by the Board.
SECTION 5.06 The Company shall have the
authority to enter into a separate indemnification agreement with any Manager, director, officer employee or agent of the Company or any subsidiary providing for such indemnification of such person as the Board shall determine up to the fullest
extent permitted by law.
SECTION 5.07 As soon as practicable after receipt by any person specified in Section 5.01 of notice of the
commencement of any action, suit or proceeding specified in Section 5.01, such person shall, if a claim with respect thereto may be made against the Company under this Article V, notify the Company in writing of the commencement or threat
thereof; however, the omission so to notify the Company shall not relieve the Company from any liability under this Article V unless the Company shall have been prejudiced thereby or from any other liability which it may have to such person other
than under this Article V. With respect to any such action as to which such person notifies the Company of the commencement or threat thereof, the Company may participate therein at its own expense and, except as otherwise provided herein, to the
extent that it desires, the Company, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof, with counsel selected by the Company to the reasonable satisfaction of such person. After notice from
the Company to such person of its election to assume the defense thereof, the Company shall not be liable to such person under this Article V for any legal or other expenses subsequently incurred by such person in connection with the defense thereof
other than as otherwise provided herein. Such person shall have the right to employ his or her own counsel in such action, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of such person unless: (a) the employment of counsel by such person shall have been authorized by the Company; (b) such person shall have reasonably concluded that there may be a conflict of interest between the
Company and such person in the conduct of the defense of such proceeding; or (c) the Company shall not in fact have employed counsel to assume the defense of such action.
SECTION 5.08 The Company shall have the power to purchase and maintain insurance on behalf of any
person who is or was a Manager, director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a Manager, director, officer, employee or agent of another domestic or foreign limited liability company,
corporation, for profit or not-for-profit, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such,
whether or not the Company would have the power to indemnify such person against such liability under the provisions of this Article V.
ARTICLE VI
MANAGEMENT
SECTION 6.01 Management by Board of Managers. Except for situations in which the approval of the Member is expressly required by this
Agreement or by nonwaivable provisions of applicable law, the powers of the Company shall be exercised exclusively by or under the exclusive authority of, and the business and affairs of the Company shall be managed under the exclusive direction and
control of, the Board of Managers (the “Board”, and the members of the Board, the “Managers”). The size of the Board shall initially be fixed at one (I)) (such number may be increased or decreased by the Board by an
amendment to this Agreement), and its sole member shall initially be Jason DeZwirek. Any Manager may be removed and replaced by the Member at any time. Except as specifically provided otherwise in this Agreement or by nonwaivable provisions of the
Act, any action taken by the Board may only be taken with the approval, either in writing or at a duly called meeting, of Managers holding a majority of the votes held by the Managers then serving on the Board. Each Manager shall be entitled to one
(1) vote on matters coming before the Board. The Company shall reimburse each Manager for all reasonable out-of-pocket expenses incurred in connection with his or her duties as a Board member or committee member.
SECTION 6.02 Officers. The Board may from time to time appoint one or more individuals as officers and delegate to such officers such
authority and duties as the Board deems advisable. In addition, the Board may assign titles (including, without limitation, chairman, chief executive officer, president, chief operating officer, chief financial officer, vice president, secretary,
assistant secretary, treasurer or assistant treasurer) to such officers and, unless the Board decides otherwise, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated
with that office. Any number of titles may be held by the same individual. The salaries or other compensation, if any, of such officers shall be fixed from time to time by the Board. Any delegation pursuant to this Section 5.02 may be revoked
at any time by the Board, in its sole and absolute discretion. The initial officers of the Company shall be as follows:
|
|
|
| Name |
|
Titles |
|
|
| Jason DeZwirek |
|
Chairman |
|
|
| Jeffrey Lang |
|
Chief Executive Officer and President |
|
|
| Edward Prajzner |
|
Chief Financial Officer, Treasurer and
Secretary |
ARTICLE VII
ALLOCATIONS; DISTRIBUTIONS; CAPITAL CONTRIBUTIONS
SECTION 7.01 Allocations. All income, gain, loss, deductions and credits of the Company shall be allocated to the Member.
SECTION 7.02 Distribution of Company Funds. After providing for the payment of any amounts due on any indebtedness of the Company and
providing for a reasonable reserve for the payment of expenses of the Company, any remaining cash funds of the Company may be distributed or advanced to the Member.
SECTION 7.03 Capital Contributions. The Member has contributed $100.00 to the Company in exchange for one hundred (100) membership
interest Units in the Company, which Units represent all of the outstanding membership or other ownership interests in the Company. A “Unit” means a unit of interest of a member in the Company at any particular time, including
without limitation, rights to distributions (liquidating or otherwise), allocations, information, and to vote, consent or approve, if any. All of the outstanding Units of the Company shall be set forth on Schedule A hereto, which shall be
amended as necessary to reflect new members.
SECTION 7.04 Additional Capital Contributions. The Member may, but is not required
to, make any additional capital contributions to the Company.
ARTICLE VIII
FISCAL YEAR, ACCOUNTING, INSPECTION OF BOOKS
SECTION 8.01 Fiscal Year and Accounting. Except as otherwise determined by the Board, the fiscal year of the Company shall be the
calendar year. The books of the Company shall be kept on such method as the Board shall from time to time determine consistent with generally accepted accounting principles.
SECTION 8.02 Inspection of Books. The books of the Company shall at all times be available for inspection and audit by the Member at
the Company’s principal place of business during business hours.
ARTICLE IX
DISSOLUTION
SECTION 9.01
Events of Dissolution. The Company shall be dissolved and its affairs shall be wound up on the first to occur of the following events: (a) the Board approves in writing the termination and dissolution of the Company or (b) the sale
or distribution by the Company of all or substantially all of its assets. Any other provision of this Agreement to the contrary notwithstanding, no withdrawal, assignment, removal, bankruptcy, insolvency, death,
incompetency, termination, dissolution or distribution with respect to the Member or any Unit holder will effect a dissolution of the Company. Notwithstanding the dissolution of the Company, the
business of the Company shall continue to be governed by this Agreement until the winding up of the Company occurs.
SECTION 9.02
Distribution Upon Dissolution. Upon dissolution, after payment of, or adequate provision for, the debts and obligations of the Company, the remaining assets of the Company (or the proceeds of sales or other dispositions in liquidation of the
Company’s assets) shall be distributed to the Member. The Company shall terminate when all property has been distributed to the Member.
ARTICLE X
CERTIFICATES:
UNITS
SECTION 10.01 Certificates. The Company may (but shall not be required to) issue certificates to represent the Units.
The name of each member, together with the number of Units held by such member, shall be entered on the books of the Company and on Schedule A hereto.
SECTION 10.02 Units. Units of the Company shall only be transferred on the books of the Company by the holder of record thereof or by
such holder’s attorney duly authorized in writing, pursuant to the terms of this Agreement, with such evidence of the authenticity of such transfer and other matters as the Company may reasonably require. It shall be the duty of the Company to
record any such transfers on its books.
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.01 Modification. This Agreement may be amended or modified by the written consent of the Member.
SECTION 11.02 Governing Law. This Agreement shall be construed in accordance with and governed by the internal laws of the State of
Delaware, without regard to the principles of conflicts or choice of laws thereof that would give rise to the application of the domestic substantive law of any other jurisdiction.
SECTION 11.03 Pronouns. Feminine or neuter pronouns shall be substituted for those of the masculine gender, the plural for the singular
and the singular for the plural, in any place in this Agreement where the context may require such substitution.
SECTION 11.04
Titles. The titles of Articles and Sections are included only for convenience and shall not be construed as a part of this Agreement or in any respect affecting or modifying its provisions.
SECTION 11.05 Entire Agreement. This Agreement contains the entire understanding of the Member and the Company respecting the subject
matter hereof and supersedes all prior agreements, discussions and understandings.
SECTION 11.06 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 11.07 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT.
SECTION 11.08 No Third-Party
Beneficiaries. Except to the extent provided in Articles IV and V, nothing in this Agreement is intended to, or will, create any rights to any party other than a party that is a signatory hereto or who becomes a Member in accordance with the
terms of this Agreement.
SECTION 11.09 Consent to The Exclusive Jurisdiction of the Courts of Delaware.
(a) EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(b) EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT,
ACTION OR OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL OTHER THAN THE COURTS OF THE STATE OF DELAWARE AND COVENANTS THAT IT SHALL NOT SEEK IN ANY MANNER TO PROSECUTE OR DEFEND ANY DISPUTE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR TO
CHALLENGE OR SET ASIDE ANY DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS HEREOF.
(c) EACH OF THE PARTIES HERETO
HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE TO VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN ADDITION, EACH OF THE PARTIES HERETO CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL
SERVICE OR ANY MANNER IN WHICH NOTICES MAY BE DELIVERED HEREUNDER.
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