EXHIBIT 7.27
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LIMITED LIABILITY COMPANY AGREEMENT
OF
TALON MANAGEMENT HOLDINGS LLC
This Limited Liability Company Agreement (this "Agreement") of Talon
Management Holdings LLC (the "Company"), dated and effective as of April 24,
2007, is entered into by and among ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Managing Member"), E.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ (collectively the "Non-Managing Members" and,
collectively with the Managing Member, the "Members").
WHEREAS, the Company, pursuant to an assignment from the Managing
Member of his interest therein, is a member of Talon Holdings LLC, a Delaware
limited liability company ("Parent"), and a party to the Limited Liability
Company Agreement of Parent, dated as of March 23, 2007, by and among the
Company, Centerbridge Capital Partners, L.P., Cenberbridge Capital Partners
Strategic, L.P., Centerbridge Capital Partners SBS, L.P. and The Woodbridge
Company Limited (the "Parent LLC Agreement"); and
WHEREAS, Parent is a party to that certain Agreement and Plan of
Merger, dated as of March 18, 2007 (the "Merger Agreement"), by and among
Parent, Talon Acquisition Co., a Texas corporation and wholly-owned subsidiary
of Parent ("Merger Sub") and EGL, Inc., a Texas corporation ("EGL"), providing
for the merger of Merger Sub with and into EGL.
NOW, THEREFORE, the Members, by execution of this Agreement, hereby
form a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (as amended from time to time, the "Act"), and
hereby agree as follows:
ARTICLE I
ORGANIZATIONAL MATTERS; MANAGEMENT
1.1. Name. The name of the limited liability company formed hereby
is Talon Management Holdings LLC.
1.2. Certificates. ▇▇▇▇▇ ▇. ▇▇▇▇▇ is hereby designated as an
"authorized person" within the meaning of the Act, and has executed, delivered
and filed the Certificate of Formation of the Company with the Secretary of
State of the State of Delaware and will execute, deliver and file, or cause the
execution, delivery and filing of, all certificates (and any amendments and/or
restatements thereof) required or permitted by the Act to be filed with the
Secretary of State of the State of Delaware and any certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in any other jurisdiction in which the Company may wish to conduct
business.
1.3. Purposes. The purpose and business of the Company is to engage
in any and all lawful acts and activity for which limited liability companies
may be organized under the Act.
1.4. Powers. Except as otherwise provided in this Agreement, the
Act or any other applicable laws and regulations, the Company shall have the
power and authority to take any and all actions that are necessary, appropriate,
proper, advisable, incidental or convenient to or for the furtherance of the
purposes described herein.
1.5. Principal Business Office. The principal business office of
the Company shall be located at such location as may hereafter be determined by
the Managing Member.
1.6. Registered Office. The address of the Company's registered
office in Delaware is at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle.
1.7. Registered Agent. The name and address of the registered agent
in Delaware for service of process are The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
of New Castle.
1.8. Members. The names and mailing addresses of the Members are as
follows:
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Name Address
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▇▇▇▇▇ ▇. ▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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E. ▇▇▇▇▇▇ ▇▇▇▇▇ c/o EGL, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
2
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇ c/o EGL, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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1.9. Management. ▇▇▇▇▇ ▇. ▇▇▇▇▇ is hereby designated the "Managing
Member" of the Company. The Managing Member shall have the sole and exclusive
control over the management, business and affairs of the Company, and shall make
all decisions and take all actions for the Company not otherwise provided for in
this Agreement.
1.10. Admission as Members. The Members are deemed admitted as
Members of the Company upon their execution and delivery of this Agreement
ARTICLE II
CAPITALIZATION; DISTRIBUTIONS; PROFITS AND LOSSES
2.1. Capital Contributions; Capital Commitments.
(a) Managing Member Capital Contribution. The Managing Member
hereby commits to contribute to the Company, immediately prior to the closing of
the transactions contemplated by the Merger Agreement, all cash and common stock
of EGL he would otherwise be required to contribute to Parent pursuant to the
terms of his Equity Commitment Letter, dated as of March 18, 2007, as it may be
amended from time to time, by and between the Managing Member and Parent (the
"Crane Equity Commitment Letter"), which contribution will then be used by the
Company to make a capital contribution to Parent in connection with the closing
of the transactions contemplated by the Merger Agreement. All EGL common stock
contributed by the Managing Member will be valued as set forth in the Crane
Equity Commitment Letter. Notwithstanding the foregoing, in the event that the
Managing Member transfers any cash and/or common stock of EGL directly to Parent
for the benefit of the Company in connection with the closing of the
transactions contemplated by the Merger Agreement, he will be deemed to have
contributed such amounts to the Company which in turn will be deemed to have
contributed them to Parent.
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(b) Non-Managing Member Capital Contributions. Each of the
Non-Managing Members hereby commits to contribute to the Company, promptly upon
receipt thereof, one-half of the after-tax proceeds received by such
Non-Managing Member in respect of his common stock, restricted stock or options
of EGL in connection with the closing of the transactions contemplated by the
Merger Agreement (as to each Non-Managing Member, the "Investment Amount"),
which amounts will then be used by the Company to make a capital contribution to
Parent. The Investment Amount for each Non-Managing Member will be determined by
the Managing Member in good faith assuming the highest marginal tax rate
applicable to such Non-Managing Member. Notwithstanding the foregoing, in the
event that any Non-Managing Member transfers its Investment Amount directly to
Parent for the benefit of the Company, he will be deemed to have contributed
such amounts to the Company which in turn will be deemed to have contributed
them to Parent.
2.2. Additional Contributions. Except as set forth in Section 2.1,
a Member is not required to make any additional capital contribution to the
Company, and without the consent of the Managing Member, shall not make any
additional capital contributions.
2.3. Distributions.
(a) General. Except as set forth in Section 2.3(b), all
distributions by the Company to the Members shall be shared by the Members
pro-rata in proportion to their capital contributions.
(b) Distributions of Termination Fee. Notwithstanding Section
2.3(a), in the event that Parent receives, pursuant to the Merger Agreement, any
payment of the Termination Fee (as defined in the Merger Agreement) and
thereafter distributes to the Company, on account of its membership interest in
Parent, its applicable percentage thereof, all distributions by the Company to
the Members in respect of such amount shall be shared by the Members in the
following proportions: 1% to the Managing Member; 18% to E. ▇▇▇▇▇▇ ▇▇▇▇▇; 12% to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇; 12% to ▇▇▇▇▇ ▇▇▇▇▇▇▇; 18% to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; 9% to ▇▇▇▇▇
▇▇▇▇▇▇; 18% to ▇▇▇▇▇▇ ▇▇▇▇▇▇; and 12% to ▇▇▇ ▇▇▇▇▇▇ (collectively, the "Section
2.3(b) Percentages"); provided, however, that notwithstanding anything to the
contrary contained herein, in the event that, in connection with a receipt of
the Termination Fee by Parent, the Company receives any distribution from Parent
in respect of costs and expenses actually incurred by it or by the Managing
Member for the benefit of Parent in accordance with Section 2.3 of the Parent
LLC Agreement and that certain Interim Investors Agreement, dated as of March
18, 2007, by and among the Managing Member, affiliates of Centerbridge Partners,
L.P. and The Woodbridge Company Limited, all distributions by the Company in
respect of such amounts shall be made 100% to the Managing Member; provided,
further, however, that in the event a Non-Managing Member terminates his
employment with EGL prior to the payment of any Termination Fee to Parent, then
such Non-Managing Member's Section 2.3(b) Percentage shall be deemed to be zero
and the Section 2.3(b) Percentage previously allocated to such Non-Managing
Member shall be reallocated among the other Non-Managing Members (whose
employment was not so terminated) pro-rata in accordance with their Section
2.3(b) Percentages (determined immediately prior to such termination).
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(c) Timing of Distributions. It is agreed that any amounts
contemplated by Section 2.3(b) will be distributed to the Members promptly upon
receipt thereof by the Company. All other distributions shall be made at the
times and in the aggregate amounts determined by the Managing Member.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not make a distribution to the Members on account of their
interests in the Company if such distribution would violate the Act or other
applicable law.
2.4. Profits and Losses. Profits and losses of the Company shall be
allocated for all purposes (including, without limitation, tax purposes) among
the Members by the Managing Member in a manner consistent with the economic
provisions of this Agreement.
2.5. Withholding. All distributions shall be made only after giving
effect to any required withholding by the Company.
2.6. Section 83(b) Election. The Non-Managing Members hereby agree
to timely file an election under Section 83(b) of the Internal Revenue Code of
1986, as amended, with respect to their membership interests in the Company. The
Managing Member hereby agrees to indemnify each Non-Managing Member for the
excess, if any, of the net tax liability actually incurred by such Member with
respect to his respective interest in the Company over the net tax liability
that would have been incurred by such Member with respect to such interest had
such election not been made.
ARTICLE III
GENERAL PROVISIONS
3.1. Limited Liability. Except as otherwise provided by the Act,
the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Members shall not be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a member of the Company.
3.2. Assignments/Transfers. No Member may transfer or assign its
rights hereunder without the consent of the Managing Member.
3.3. Dissolution. (a) The Company shall dissolve and its affairs
shall be wound up upon the written consent of the Managing Member or the entry
of a decree of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy of a Member shall not cause such Member to
cease to be a member of the Company and, upon the occurrence of such an event,
the business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only
such activities as are necessary to wind up its affairs (including the sale of
the assets of the Company in an orderly manner), and the assets of the Company
shall be applied in the manner, and in the order of priority, set forth in
Section 18-804 of the Act.
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(d) Upon the cancellation of the Certificate of Formation of the
Company in accordance with the Act, the Company and this Agreement shall
terminate.
3.4. Severability of Provisions. Each provision of this Agreement
shall be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
3.5. Entire Agreement. This Agreement constitutes the entire
agreement of the Members with respect to the subject matter hereof.
3.6. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by said laws.
3.7. Amendments. The Managing Member shall, in its sole discretion,
have the authority to amend the provisions of this Agreement; provided, however,
that any amendment to the provisions of Section 2.2, Section 2.3(b) or Section
3.1 that adversely effects any Member shall require the consent of the Member
adversely effected.
3.8. Sole Benefit of the Members. Except as expressly provided in
this Agreement, the provisions of this Agreement are intended solely to benefit
the Members and, to the fullest extent permitted by applicable law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no
such creditor shall be a third-party beneficiary of this Agreement), and no
Member shall have any duty or obligation to any creditor of the Company to make
any contributions or payments to the Company.
3.9. Legal Counsel Relationships. The Members acknowledge and agree
that Weil, Gotshal & ▇▇▇▇▇▇ LLP has represented the Company and the Managing
Member in connection with this Agreement and other transactions related hereto
(the "Transactions"). Except for Weil, Gotshal & ▇▇▇▇▇▇ LLP's representation of
the Company and the Managing Member with respect to the Transactions, in no
event shall an attorney-client relationship exist between Weil, Gotshal & ▇▇▇▇▇▇
LLP on the one hand and any other Member on the other hand.
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IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, have duly executed this Agreement as of the date first written
above.
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
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SIGNATURE PAGE TO LIMITED LIABILITY COMPANY AGREEMENT
OF TALON MANAGEMENT HOLDINGS LLC
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