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
