EXHIBIT 7.19
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LIMITED LIABILITY COMPANY AGREEMENT
OF
TALON HOLDINGS LLC
This Limited Liability Company Agreement (this "Agreement") of Talon
Holdings LLC, dated and effective as of March 23, 2007, is entered into by and
among Centerbridge Capital Partners, L.P., Centerbridge Partners Strategic,
L.P., Centerbridge Capital Partners SBS, L.P. (collectively, "Centerbridge"),
The Woodbridge Company Limited ("Woodbridge") and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇" and
collectively with Centerbridge and Woodbridge, each a "Member" and collectively
the " Members").
WHEREAS, Talon Holdings LLC, a Delaware limited liability company
(the "Company"), Talon Acquisition Co., a Texas corporation and wholly-owned
subsidiary of the Company ("Merger Sub"), and EGL, Inc., a Texas corporation
("EGL") are parties to that certain Agreement and Plan of Merger, dated as of
March 18, 2007 (the "Merger Agreement") pursuant to which Merger Sub will be
merged with and into EGL, with EGL surviving that merger on the terms and
subject to the conditions set forth in the Merger Agreement (the "Transaction");
and
WHEREAS, the Members have previously entered into that certain
Interim Investors Agreement, dated as of March 18, 2007 (the "Interim Investors
Agreement"), setting forth the agreement of the Members with respect to the
actions of the Company between the signing and closing of the Merger Agreement
and certain other matters.
NOW, THEREFORE, the Members, by execution of this Agreement, hereby
form a limited liability company pursuant to and in accordance with the Act, and
hereby agree as follows:
ARTICLE I
ORGANIZATIONAL MATTERS
1.1. Name. The name of the limited liability company formed hereby
is Talon 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. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware his powers as an
"authorized person" ceased, and each Member thereupon became a designated
"authorized person" and shall continue as a designated "authorized person"
within the meaning of the Act. Subject to Article III, a Member, as an
authorized person within the meaning of the Act, shall 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. Subject to Article
III, a Member shall execute, deliver and file, or cause the execution, delivery
and filing of, 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 Members.
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, and
their respective capital contributions, are as follows:
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Name Address Capital
Contribution
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Centerbridge Capital c/o Centerbridge $309.26
Partners, L.P. Partners, L.P., ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
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Centerbridge Capital c/o Centerbridge $10.88
Partners Strategic, L.P. Partners, L.P., ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
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Centerbridge Capital c/o Centerbridge $6.86
Partners SBS, L.P. Partners, L.P., ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
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The Woodbridge Company ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ $163.00
Limited ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇ c/o EGL, Inc. $510.00
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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1.9. Officers. The Members may, acting in accordance with Article
III, from time to time as they deem advisable, select natural persons and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Members, acting in accordance with
Article III, decide otherwise, if the title is one commonly used for officers of
a business corporation formed under the DGCL, the assignment of such title shall
constitute the delegation to such person of the authorities and duties that are
normally associated with that office, except to the extent otherwise limited by
this Agreement.
ARTICLE II
CAPITALIZATION; DISTRIBUTIONS; PROFITS AND LOSSES
2.1. Capital Contributions. The Members are deemed admitted as
Members of the Company upon their execution and delivery of this Agreement. Each
Member has contributed the amount set forth in Section 1.8.
2.2. Additional Contributions. Except to the extent provided in the
Equity Commitment Letter of each Member, a Member is not required to make any
additional capital contribution to the Company, and without unanimous consent of
the Members shall not make any additional capital contributions.
2.3. Distributions; Profits and Losses. All distributions, profits
and losses of the Company shall be allocated to the Members pro rata in
proportion to their capital commitments as set forth above (which is intended to
reflect the Economic Contribution of each of the parties as defined in the
Interim Investors Agreement); provided, however, that notwithstanding the
foregoing, the Company shall reimburse each of the Members for those costs and
expenses actually incurred by them for the benefit of the Company in accordance
with Section 4 of the Interim Investors Agreement (it being understood and
agreed that all of the costs and expenses contemplated by Section 4 of the
Interim Investors Agreement were incurred for the benefit of the Company);
provided, further, however, that any such costs that are so reimbursed shall be
treated as costs off the Company.
2.4. Withholding. All distributions shall be made only after giving
effect to any required withholding by the Company.
2.5. Timing of Distributions. It is agreed that any amounts
contemplated by Section 4 of the Interim Investors Agreement that are received
by the Company 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 all of the Members. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
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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.
ARTICLE III
MEMBERS AND ACTIONS
(a) General. The Company shall be managed by its Members. The
Members shall make all decisions regarding the actions of the Company in
accordance with the provisions of the Interim Investors Agreement.
ARTICLE IV
GENERAL PROVISIONS
4.1. Effect of Interim Investors Agreement. It is the agreement and
intent of the Members that the Interim Investors Agreement shall continue be
fully applicable to the Members, mutatis mutandis so as to reflect the nature of
the Company as a limited liability company, and that each of the terms of the
Interim Investors Agreement shall remain in full force and effect. Capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Interim Investors Agreement.
4.2. 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.
4.3. Assignments/Transfers. No Member may transfer or assign its
rights hereunder without the consent of all the Members; provided, however, that
a Member shall be permitted to syndicate all or a portion of the equity
commitment of such Member as set forth in its Equity Commitment Letter (and to
assign or transfer the corresponding portion of such Member's interest in the
Company) to an affiliate or affiliated fund without the consent of any Member;
provided, further, however, that following such syndication, assignment and
transfer, all voting and control over the interests held by such Member and/or
and its transferees (such Member's "Affiliated Group") shall be allocated to one
member of the Affiliated Group of such Member (the "Deciding Member"), and the
decision of the Deciding Member as to any action shall be binding on all members
of the Affiliated Group. The Members also agree that Crane may assign his
interest hereunder to a partnership or limited liability company to be formed by
him, the partners or members of which will consist of Crane and certain other
members of management of EGL. Nothing contained in this Section 4.3 shall be
deemed to limit Crane's right to syndicate all or a portion of the cash portion
of his equity commitment as set forth in Section 2(c) of the Interim Investors
Agreement.
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4.4. Dissolution. (a) The Company shall dissolve and its affairs
shall be wound up upon the written consent of all of the Members 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.
(d) Upon the cancellation of the Certificate of Formation of the
Company in accordance with the Act, the Company and this Agreement shall
terminate.
4.5. 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.
4.6. Entire Agreement. This Agreement, together with the Interim
Investors Agreement, constitutes the entire agreement of the Members with
respect to the subject matter hereof.
4.7. 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.
4.8. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed by all
of the parties hereto.
4.9. 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.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the date first written above.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
(Signature page continued on following page)
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THE WOODBRIDGE COMPANY LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Counsel
(Signature page continued on following page)
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CENTERBRIDGE CAPITAL PARTNERS, L.P.
By: Centerbridge Associates, L.P.,
its general partner
By: Centerbridge GP Investors, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Managing Director
CENTERBRIDGE CAPITAL PARTNERS
STRATEGIC, L.P.
By: Centerbridge Associates, L.P.,
its general partner
By: Centerbridge GP Investors, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Managing Director
CENTERBRIDGE CAPITAL PARTNERS
SBS, L.P.
By: Centerbridge Associates, L.P.,
its general partner
By: Centerbridge GP Investors, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Managing Director
