EXHIBIT 7.15
------------
VOTING AGREEMENT
----------------
VOTING AGREEMENT, dated as of March 18, 2007 (this "Agreement"),
among Talon Holdings Corp., a Delaware corporation ("Parent"), Talon
Acquisition Co., a Texas corporation and a wholly-owned Subsidiary of Parent
("Merger Sub") and Xxxxx X. Xxxxx ("Shareholder").
RECITALS
--------
Parent, Merger Sub and the EGL, Inc., a Texas corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger dated as of
the date hereof (as the same may be amended or supplemented, the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement as entered into on the date hereof)
providing for the merger of Merger Sub with and into the Company (the "Merger"),
upon the terms and subject to the conditions set forth in the Merger Agreement.
As of the date hereof, Shareholder is the record and beneficial
owner of the number of shares of the Company common stock set forth on the
signature page hereof beneath Shareholder's name (the "Existing Shares" and,
together with any shares of the Company common stock acquired after the date
hereof, whether upon the exercise of warrants, options, conversion of
convertible securities or otherwise, Shareholder's "Shares").
As an inducement and a condition to entering into the Merger
Agreement, Parent and Merger Sub have required that Shareholder agrees, and
Shareholder has agreed, to enter into this Agreement.
AGREEMENT
---------
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Vote.
(a) Shareholder hereby agrees that, from and after the date hereof
and until this Agreement shall have been terminated in accordance with Section
6, at any meeting of the holders of Company common stock, however called, or in
connection with any written consent of the holders of Company common stock,
Shareholder shall vote (or cause to be voted) Shareholder's Shares (i) in favor
of adoption and approval of the Merger Agreement and the Merger and the approval
of the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and (ii) except as otherwise agreed to in writing
in advance by Parent, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (C) any other action involving the Company or its Subsidiaries
which has the effect of impeding, interfering with, delaying, postponing, or
impairing (A) the ability of the Company to consummate the Merger or (B) the
transactions contemplated by this Agreement and the Merger Agreement.
Shareholder shall not enter into any agreement or understanding with any person
or entity prior to the termination of this Agreement to vote in any manner
inconsistent herewith.
(b) SHAREHOLDER HEREBY GRANTS TO, AND APPOINTS, PARENT AND ANY
DESIGNEE OF PARENT, AND EACH OF THEM INDIVIDUALLY, SHAREHOLDER'S IRREVOCABLE
(UNTIL THE TERMINATION DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE THE SHARES AS INDICATED IN SECTION 1(a). SHAREHOLDER
INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED
WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SHAREHOLDER WITH RESPECT TO THE
SHARES. THE PROXY GRANTED BY SHAREHOLDER PURSUANT TO THIS SECTION 1(b) IS
GRANTED IN ORDER TO SECURE SHAREHOLDER'S PERFORMANCE UNDER THIS AGREEMENT AND
ALSO IN CONSIDERATION OF PARENT AND MERGER SUB ENTERING INTO THIS AGREEMENT AND
THE MERGER AGREEMENT. IF SHAREHOLDER FAILS FOR ANY REASON TO BE COUNTED AS
PRESENT AND VOTE SHAREHOLDER'S SHARES IN ACCORDANCE WITH THE REQUIREMENTS OF
SECTION 1(a) (OR ANTICIPATORILY BREACHES SUCH SECTION), THEN PARENT OR ITS
DESIGNEES SHALL HAVE THE RIGHT TO CAUSE TO BE PRESENT OR VOTE SHAREHOLDER'S
SHARES IN ACCORDANCE WITH SECTION 1(a). THE PROXY GRANTED BY THIS SECTION 1(b)
SHALL BE AUTOMATICALLY REVOKED UPON TERMINATION OF THIS AGREEMENT IN ACCORDANCE
WITH ITS TERMS.
2. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Parent and Merger Sub as of the date hereof as
follows:
(a) Authorization; Validity of Agreement; Necessary Action.
Shareholder has full power and authority to execute and deliver this
Agreement, to perform Shareholder's obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Shareholder, and, assuming this Agreement
constitutes a valid and binding obligation of Parent and Merger Sub,
constitutes a valid and binding obligation of Shareholder, enforceable
against him in accordance with its terms, except that (i) such enforcement
may be subject to applicable bankruptcy, insolvency or other similar laws,
now or hereafter in effect, affecting creditors' rights generally, and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(b) Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under,
and other applicable requirements of, federal securities laws, the HSR
Act, or any applicable state takeover laws, neither the execution,
delivery or performance of this Agreement by Shareholder nor the
consummation by it of the transactions contemplated hereby nor compliance
2
by it with any of the provisions hereof will (i) require any filing with,
or permit, authorization, consent or approval of, any Governmental Entity
(except where the failure to obtain such permits, authorizations, consents
or approvals or to make such filings would not materially impair the
ability of Shareholder to consummate the transactions contemplated
hereby), (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, guarantee, other evidence of indebtedness, lease, license,
contract, agreement or other instrument or obligation to which Shareholder
is a party or by which it or any of its properties or assets may be bound
or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to it or any of its properties or assets, except in
the case of clauses (ii) and (iii) for violations, breaches or defaults,
or rights of termination, amendment, cancellation or acceleration, which
would not materially impair the ability of Shareholder to consummate the
transactions contemplated hereby.
(c) Shares. Shareholder's Existing Shares are owned
beneficially and of record by Shareholder. Shareholder's Existing Shares,
together with (i) 87,000 options to acquire Company common stock held by
Shareholder, (ii) 30,000 shares of Company common stock beneficially owned
by Shareholder as a result of his affiliation with the Xxxxx X. Xxxxx
foundation, (iii) 4,500 shares of Company common stock that carry a
disposition restriction and (iv) 3,000 shares of Company common stock held
in separate 1,500 share joint tenancies with Xxxxxxx Xxxxx and Xxxxx
Xxxxx, respectively, constitute all of the shares of Company common stock
owned of record or beneficially by Shareholder. Shareholder has sole
voting power, sole power of disposition, sole power to issue instructions
with respect to the matters set forth in Section 1 hereof, sole power of
conversion, sole power to demand appraisal rights and sole power to agree
to all of the matters set forth in this Agreement, in each case with
respect to all of Shareholder's Existing Shares with no limitations,
qualifications or restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement. Shareholder has
good and valid title to its Existing Shares, free and clear of all liens,
claims, security interests or other charges or encumbrances.
3. Representations and Warranties of Parent. Parent and Merger Sub
hereby represent and warrant to Shareholder as of the date hereof as follows:
(a) Organization. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation.
(b) Corporate Authorization; Validity of Agreement; Necessary
Action. Each of Parent and Merger Sub has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
by each of Parent and Merger Sub of this Agreement and the consummation by
3
each of Parent and Merger Sub of the transactions contemplated hereby have
been duly and validly authorized by its board of directors, and no other
corporate action or proceedings on the part of Parent or Merger Sub are
necessary to authorize the execution and delivery by Parent or Merger Sub
of this Agreement, and the consummation by Parent or Merger Sub of the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by Parent and Merger Sub, and, assuming this Agreement
constitutes a valid and binding obligation of the Shareholders,
constitutes valid and binding obligations of Parent and Merger Sub,
enforceable against them in accordance with its terms, except that (i)
such enforcement may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors'
rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(c) Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under,
and other applicable requirements of, federal securities laws, the HSR
Act, any applicable state takeover laws, neither the execution, delivery
or performance of this Agreement by Parent or Merger Sub nor the
consummation by Parent or Merger Sub of the transactions contemplated
hereby nor compliance by Parent or Merger Sub with any of the provisions
hereof will (i) conflict with or result in any breach of any provision of
the organizational documents of Parent or any of its Subsidiaries, (ii)
require any filing with, or permit, authorization, consent or approval of,
any Governmental Entity, (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement or other instrument or
obligation to which Parent or Merger Sub is a party or by which it or any
of its properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent, any
of its Subsidiaries or any of their properties or assets.
4. Further Agreements of Shareholders. (a) Shareholder, severally
and not jointly, hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, encumbrance, assignment or other disposition of,
any of its Existing Shares, or any Shares acquired after the date hereof, or any
interest in any of the foregoing, except to Parent; (ii) grant any proxies or
powers of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares, or any interest in any of the
foregoing, except to Parent or Merger Sub; or (iii) take any action that would
make any representation or warranty of Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling Shareholder from
performing Shareholder's obligations under this Agreement.
4
(b) Shareholder hereby irrevocably waives any rights of
appraisal or rights to dissent from the Merger that Shareholder may have.
(c) Shareholder hereby authorizes Parent, Merger Sub and the
Company to publish and disclose in any announcement or disclosure required
by the Securities and Exchange Commission or other Governmental Entity
Shareholder's identity and ownership of Shares and the nature of
Shareholder's obligation under this Agreement.
(d) Shareholder agrees with, and covenants to, Parent that
Shareholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of Shareholder's Shares, unless such transfer is made in
compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Company common stock by reason of any
stock dividend or distribution, or any change in the Company common stock
by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer
to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged. Shareholder shall be entitled to
receive any cash dividend paid by the Company during the term of this
Agreement until the Shares are cancelled in the Merger or purchased
hereunder.
(e) Shareholder shall not, and shall direct its
Representatives not to, directly or indirectly, (i) initiate, solicit,
knowingly encourage (including by providing information) or facilitate any
inquiries, proposals or offers with respect to, or the making or
completion of, an Alternative Proposal or (ii) engage or participate in
any negotiations concerning, or provide or cause to be provided any
non-public information or data relating to the Company or any of its
Subsidiaries, in connection with, or have any discussions with any person
relating to, an actual or proposed Alternative Proposal, or otherwise
knowingly encourage or facilitate any effort or attempt to make or
implement an Alternative Proposal; provided, however, that nothing set
forth in this Agreement shall prohibit such Shareholder or Representative
who is a Representative of the Company from taking all actions in
connection with such Alternative Proposal that the Company and its
Representatives are permitted to take under Section 5.2 of the Merger
Agreement. Notwithstanding anything in this Agreement to the contrary,
from and after the date hereof, each Shareholder agrees that it will
promptly (and in any event within 24 hours) advise Parent orally and in
writing of (i) its receipt of any Alternative Proposal, (ii) the identity
of the person making any such Alternative Proposal and (iii) the material
terms of any such Alternative Proposal or indication or inquiry (including
copies of any documents or correspondence evidencing such Alternative
Proposal or inquiry).
5. Further Assurances. From time to time, at any other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
6. Termination. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no further effect upon the earliest of (a) the Effective Time
and (b) the date of the termination of the Merger Agreement in accordance with
5
its terms (any such date shall be referred to herein as the "Termination Date").
Nothing in this Section 6 shall relieve any party of liability for a willful
breach of this Agreement prior to the Termination Date.
7. Costs and Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses.
8. Amendment and Modification. This Agreement may be amended,
modified and supplemented in any and all respects only by written agreement
executed and delivered by duly authorized officers of the respective parties.
9. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by an overnight courier service to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to Parent, to:
Talon Holdings Corp.
c/o Centerbridge Partners, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
Goodmans LLP
000 Xxxxx Xxxxxx
Xxxxx 0000, Xxx 00
Xxxxxxx, Xxxxxxx
Xxxxxx, X0X0X0
Attention: Xxxxx X Xxxxx
Fax: (000) 000-0000
6
(ii) if to Shareholder, to:
Xxxxx X. Xxxxx
c/o EGL, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: R. Xxx Xxxxx
10. Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation".
11. Counterparts. This Agreement may be executed in any number of
counterparts (including by facsimile), each such counterpart being deemed to be
an original instrument, and all such counterparts shall together constitute the
same agreement.
12. Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
13. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
7
14. Specific Performance; Remedies Cumulative. (a) The parties
hereto agree that irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with the terms hereof and that
the parties shall be entitled to the remedy of specific performance of the terms
hereof, in addition to any other remedy at law or equity.
(b) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
15. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
16. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that Parent may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
direct or indirect wholly owned Subsidiary of Parent; provided, however, that no
such assignment shall relieve Parent from any of its obligations hereunder.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns.
17. Action in Shareholder Capacity Only. The parties acknowledge
that this agreement is entered into by Shareholder solely in Shareholder's
capacity as the beneficial owner of Shareholder's Shares and nothing in this
Agreement restricts or limits any action taken by Shareholder in his capacity as
a director or officer of the Company or any of it Subsidiaries and the taking of
any actions (or failure to act) in his capacity as an officer or director of the
Company or its Subsidiaries will not be deemed to constitute a breach of this
Agreement.
18. Consent to Jurisdiction; Waiver of Jury Trial. (a) Each of the
parties hereto:
(i) consents to submit itself to the personal jurisdiction of
the courts of the State of Delaware and the Federal courts of the United
States of America located in the State of Delaware in the event any
dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement;
(ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction or venue by motion or other request for leave from
any such court;
(iii) agrees that it will not bring any action relating to
this Agreement or any of the transactions contemplated by this Agreement
in any court other than such courts; and
(iv) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to a party at its address set forth in Section 9 or at such other
address of which a party shall have been notified pursuant thereto;
8
(v) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(vi) agrees to appoint an agent for service of process in
Delaware.
(B) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS AGREEMENT
AND FOR ANY COUNTERCLAIM THEREIN.
19. Negotiated Terms. The provisions of this Agreement are the
result of negotiations between the parties. Accordingly, this Agreement shall
not be construed in favor of or against any party by reason of the extent to
which the party or any of its professional advisors participated in its
preparation.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
9
IN WITNESS WHEREOF, Parent, Merger Sub and Shareholder have
caused this Agreement to be executed as of the date first written above.
TALON HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
TALON ACQUISITION CO.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
10
/s/Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
Existing Shares: 7,065,063
[SIGNATURE PAGE TO VOTING AGREEMENT]
