Exhibit 10.1
[BERKSHIRE
LETTERHEAD]
PERSONAL AND CONFIDENTIAL
May 10, 2005
Carter’s, Inc.
The Proscenium
1170 Peachtree Street, NE
Suite 900
Atlanta, GA 30309
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Attention:
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Mr. Michael D. Casey
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Chief Financial Officer
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We are pleased to confirm the arrangements under
which Berkshire Partners, LLC (“Berkshire”) is engaged
by Carters, Inc. (the “Company”) as financial
advisor in connection with the possible acquisition of all or a
portion of the stock or assets of OshKosh B’Gosh, Inc.
(“Oshkosh”).
During the term of our engagement, we will
provide you with financial advice and assistance in connection with
this potential transaction, which may include assisting you in
negotiating the financial aspects of the transaction.
If 50% or more of the outstanding common stock
of OshKosh or 50% or more of the assets (based on the book value
thereof) of OshKosh is acquired by the Company or any of its
affiliates in one or more transactions, we will charge a
transaction fee of $1,500,000. If less than 50% of the
outstanding common stock or assets (based on the book value
thereof) of OshKosh is acquired by the Company or any of its
affiliates, we will charge a mutually acceptable transaction fee.
The Company agrees to pay the transaction fee to us in cash upon
consummation of such acquisition.
You also agree to reimburse us periodically,
upon request, and upon consummation of the transaction or
transactions contemplated hereby or upon termination of our
services pursuant to this letter, for our reasonable and documented
expenses, including the reasonable fees and disbursements of our
outside attorneys, plus any sales, use or similar taxes (including
additions to such taxes, if any) arising in connection with any
matter referred to in this letter.
Please note that any written or oral advice
provided by Berkshire in connection with our engagement is
exclusively for the benefit of the Company in considering the
transaction, and such advice and the terms of this letter may not
be disclosed to any third party or circulated or referred to
publicly without our prior written consent, except as may be
required pursuant to a subpoena or order issued by a court of
competent jurisdiction or by a judicial or administrative or
legislative body or committee, provided that the Company shall have
(a) promptly notified Berkshire of the receipt of any such
subpoena or order, (b) consulted with Berkshire as to the
advisability of taking steps to resist or narrow the scope of the
disclosure contemplated thereby and (c) cooperated with
Berkshire in any efforts it may make to obtain an order or other
reliable assurance that confidential treatment will be accorded to
such advice and the terms of this letter.
In connection with engagements such as this, it
is our firm policy to receive indemnification. The Company
agrees to the provisions with respect to our indemnity and other
matters set forth in Annex A, which is incorporated by reference
into this letter.
Our services may be terminated by you or us at
any time with or without cause effective upon receipt of written
notice to that effect; provided, however, that our services will
automatically terminate on the date one year after the date of this
letter unless we shall agree in writing to extend them for a
specified period. We will be entitled to the applicable
transaction fees set forth above in the event that at any time
prior to the expiration of six months after such termination
(i) an agreement is entered into with respect to an
acquisition of all or a portion of the stock or assets of OshKosh
which is eventually consummated by the Company or any of its
affiliates or (ii) an agreement is entered into pursuant to
which a Payment is eventually made.
The Company recognizes that, in providing our
services pursuant to this letter, we will rely upon and assume the
accuracy and completeness of all of the financial, accounting, tax
and other information furnished by the Company or OshKosh to us for
such purposes, and we do not assume responsibility for the accuracy
or completeness thereof. Berkshire will have no obligation to
conduct any independent evaluation or appraisal of the assets or
liabilities of the Company, OshKosh, or any other party or to
advise or opine on any related solvency issues. It is
understood and agreed that Berkshire will act under this letter as
an independent contractor with duties solely to the Company and
nothing in this letter or the nature of our services shall be
deemed to create a fiduciary or agency relationship between us and
the Company or its stockholders, employees or creditors.
Except as set forth in Annex A hereto, nothing
