Exhibit 10.2
Execution Copy
VOTING AGREEMENT
THIS VOTING
AGREEMENT, dated as of May 10, 2005 (this “
Agreement ”), is among The William Carter Company, a
Massachusetts corporation (“ Bidder ”), and each
of the other parties signatory hereto (each a “
Stockholder ” and collectively the “
Stockholders ”).
WHEREAS, Bidder,
Oshkosh B’Gosh, Inc., a Delaware corporation (the
“ Company ”), and a subsidiary to be formed by
Bidder (“ Merger Sub ”) have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the
“ Merger Agreement ”; terms defined in the
Merger Agreement and not otherwise defined herein being used herein
as therein defined), pursuant to which, among other things, Merger
Sub will be merged with and into the Company, with the Company
surviving as a wholly-owned subsidiary of Bidder (the “
Merger ”) and each issued and outstanding share (other
than Dissenters’ Shares) of Company Common Stock will be
converted into the right to receive the Merger Consideration.
WHEREAS, as of the
date hereof the Stockholders owned of record, and had the right to
vote, 1,719,112 shares (and each Stockholder owned the number of
such shares set forth beside such Stockholder’s name on the
signature page thereto) of Class B Common Stock (such
Class B Common Stock, together with any other Class B
Common Stock acquired by any Stockholder by purchase or otherwise
from the date hereof through the termination of this Agreement, is
collectively referred to herein as the Stockholders’ “
Subject Shares ”).
WHEREAS, as a
condition and inducement to Bidder’s willingness to enter
into the Merger Agreement, Bidder has requested that the
Stockholders agree, and each of the Stockholders has agreed, to
enter into this Agreement.
NOW, THEREFORE, the
parties hereto agree as follows:
ARTICLE 1
VOTING AGREEMENT; GRANT OF
PROXY
Section 1.01 Voting Agreement
. (a) Each Stockholder hereby agrees to vote all
Subject Shares that such Stockholder is entitled to vote at the
time of any vote to approve and adopt the Merger Agreement and the
Merger at any meeting of the stockholders of the Company, and at
any adjournment thereof, at which the Merger Agreement and the
Merger are submitted for the consideration and vote of the
stockholders of the Company.
(b) Each
Stockholder hereby agrees that it shall vote its Subject Shares
against the approval of (i) any Alternative Acquisition
Proposal, (ii) any extraordinary dividend or distribution by
the Company or any of its Subsidiaries, (iii) any change in
the capital
structure of the
Company or any of its Subsidiaries (other than pursuant to the
Merger Agreement), and (iv) any change in the composition or
membership of the Company’s Board of Directors, other than as
permitted by the Merger Agreement.
(c) Each
Stockholder hereby agrees that any agreements among the
Stockholders or any of them that could be construed to limit their
respective rights to enter into this Agreement, perform hereunder,
or restrict the Company’s ability to consummate the Merger
are amended to the full extent necessary to assure that entering
into this Agreement and performance hereunder are permitted under
each such agreement without breach thereof.
Section 1.02 Irrevocable
Proxy . Each Stockholder hereby irrevocably and
unconditionally revokes any and all previous proxies granted with
respect to its Subject Shares. By entering into this
Agreement, each Stockholder hereby irrevocably and unconditionally
grants a proxy appointing a designee of Bidder (“
Designee ”) as such Stockholder’s
attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder’s name, to vote, express, consent or
dissent, or otherwise to utilize such voting power on the matters
described in Section 1.01 as Designee or its proxy or
substitute shall, in Designee’s sole discretion, deem proper
with respect to such Stockholder’s Subject Shares. The
proxy granted by such Stockholder pursuant to this
Section 1.02 is coupled with an interest and is
irrevocable and is granted in consideration of Bidder entering into
this Agreement and the Merger Agreement and incurring certain
related fees and expenses. Each Stockholder shall perform
such further acts and execute such further documents as may be
required to vest in Designee the sole power to vote such
Stockholder’s Subject Shares. Notwithstanding the
foregoing, the proxy granted by each Stockholder shall be revoked
upon termination of this Agreement in accordance with its
terms.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF STOCKHOLDERS
Each Stockholder,
severally and not jointly, represents and warrants to Bidder
that:
Section 2.01 Authorization
. (a) If such Stockholder is not an individual, the
execution, delivery and performance by such Stockholder of this
Agreement and the consummation by such Stockholder of the
transactions contemplated hereby are within the corporate or
similar powers of Stockholder and have been duly authorized by all
necessary corporate or similar action. This Agreement
constitutes a valid and binding Agreement of such
Stockholder.
(b) If such
Stockholder is married and the Subject Shares set forth on the
signature page hereto opposite such Stockholder’s name
constitute community property under applicable laws, this Agreement
has been duly authorized, executed and delivered by, and
constitutes the valid and binding agreement of, such
Stockholder’s spouse. If this
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Agreement is being
executed in a representative or fiduciary capacity, the Person
signing this Agreement has full power and authority to enter into
and perform this Agreement.
Section 2.02
Non-Contravention . The execution, delivery and
performance by such Stockholder of this Agreement and the
consummation by such Stockholder of the transactions contemplated
hereby do not and shall not (i) if such Stockholder is not an
individual, violate any organizational documents of such
Stockholder, (ii) violate any applicable law, rule,
regulation, judgment, injunction, order or decree,
(iii) require any consent or other action by any person under,
constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any
benefit to which such Stockholder is entitled under any provision
of any agreement or other instrument binding on such Stockholder,
(iv) result in the imposition of any lien on any asset of
Stockholder or (v) violate any other agreement, arrangement or
instrument to which such Stockholder is a party or by which such
Stockholder (or any of its assets) is bound.
Section 2.03 Ownership of Subject
Shares . Such Stockholder is the record owner of, and has
the right to vote, the Subject Shares, free and clear of any lien
and any other limitation or restriction (including any restriction
on the right to vote or otherwise dispose of the Subject Shares)
(other than those that would not impede in any manner such
Stockholder’s ability to perform this Agreement; provided
that, for the avoidance of doubt, any limitation or restriction on
such Stockholder’s right to transfer or vote such
Stockholder’s Subject Shares shall be deemed to materially
impede such Stockholder’s ability to perform this
Agreement). None of the Subject Shares is subject to any
voting trust or other agreement, arrangement or instrument with
respect to the voting of such Subject Shares.
Section 2.04 Total Subject
Shares . Except for the Subject Shares set forth beside
such Stockholder’s name on the signature pages hereto or
any beneficial interest in Subject Shares that are set forth beside
another Stockholder’s name on the signature
pages hereto, such Stockholder does not beneficially own any
(i) Subject Shares or (ii) securities of the Company
convertible into or exchangeable for Subject Shares.
Section 2.05 Reliance by
Bidder . Such Stockholder understands and acknowledges
that Bidder is entering into the Merger Agreement in reliance upon
such Stockholder’s execution and delivery of this
Agreement.
ARTICLE 3
COVENANTS OF
STOCKHOLDERS
Each Stockholder
hereby covenants and agrees that:
Section 3.01 No Interference; No
Transfers . Except pursuant to the terms of this
Agreement, such Stockholder shall not, without the prior written
consent of Bidder, directly or indirectly, (i) grant any
proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Subject Shares in a
manner
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inconsistent with the
terms of this Agreement, (ii) voluntarily take any action that
would or is reasonably likely to (A) make any representation
or warranty contained herein untrue or incorrect in any material
respect or (B) have the effect in any material respect of
preventing such Stockholder from performing its obligations under
this Agreement or (iii) voluntarily sell, assign, transfer,
encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the
direct or indirect sale, assignment, transfer, encumbrance or other
disposition of, any Subject Shares during the term of this
Agreement except for transfers to any person or entity who is
subject to this Agreement or who becomes bound hereby as a
Stockholder by operation of law or by becoming party to and being
bound by the terms of this Agreement as a Stockholder incident to
such transfer. For purposes of this Section 3.01
, the term “ sell ” or “ sale
” or any derivatives thereof shall include (i) a sale,
transfer or disposition of record or beneficial ownership, or both
and (ii) a short sale with respect to Subject Shares or
substantially identical property, entering into or acquiring a
futures or forward contract to deliver Subject Shares or
substantially identical property or entering into any transaction
that has the same effect as any of the foregoing.
Section 3.02 Other Offers
. Such Stockholder shall not, directly or indirectly,
(i) take any action to solicit or initiate any Alte
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