-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VAQ1SpbHh7zvvulUmt7pL6R4TOqNP52cWk0c3RQ3+85R3Y4QABKJj4+90UtooYpM ZNh45N1eElaB0Ad/Xirhwg== 0000944209-01-000240.txt : 20010307 0000944209-01-000240.hdr.sgml : 20010307 ACCESSION NUMBER: 0000944209-01-000240 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20010305 GROUP MEMBERS: GART SPORTS CO GROUP MEMBERS: GSC ACQUISITION CORP. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OSHMANS SPORTING GOODS INC CENTRAL INDEX KEY: 0000075043 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 741031691 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-11606 FILM NUMBER: 1561227 BUSINESS ADDRESS: STREET 1: 2302 MAXWELL LN CITY: HOUSTON STATE: TX ZIP: 77023-4899 BUSINESS PHONE: 7139283171 MAIL ADDRESS: STREET 1: 2302 MAXWELL LANE STREET 2: 2302 MAXWELL LANE CITY: HOUSTON STATE: TX ZIP: 77023-4899 FORMER COMPANY: FORMER CONFORMED NAME: OSHMANS INC DATE OF NAME CHANGE: 19710603 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GART SPORTS CO CENTRAL INDEX KEY: 0000912262 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 841242802 STATE OF INCORPORATION: DE FISCAL YEAR END: 0103 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1001 LINCOLN AVENUE CITY: DENVER STATE: CO ZIP: 80203 BUSINESS PHONE: 3038611122 MAIL ADDRESS: STREET 1: 1001 LINCOLN AVENUE CITY: DENVER STATE: CO ZIP: 80203 SC 13D 1 0001.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________ SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. __)/1/ OSHMAN'S SPORTING GOODS, INC. (Name of Issuer) Common Stock, $1.00 Par Value Per Share (Title of Class of Securities) 688260 10 8 (CUSIP Number) Nesa E. Hassanein Anthony T. Iler Gart Sports Company Irell & Manella LLP 1000 Broadway 1800 Avenue of the Stars, Suite 900 Denver, Colorado 80203 Los Angeles, California 90067 (303) 861-1122 (310) 277-1010 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 22, 2001 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. /1/ The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page . The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------- ------------------- CUSIP NO. 688260 10 8 13D Page 2 of 3 Pages - ------------------------- ------------------- ================================================================================ 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Gart Sports Company =============================================================================== 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* =============================================================================== 3. SEC USE ONLY =============================================================================== 4. SOURCE OF FUNDS* OO =============================================================================== 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] =============================================================================== 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware =============================================================================== 7. SOLE VOTING POWER 0 shares NUMBER OF SHARES ========================================================== BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 2,914,543 shares REPORTING PERSON ========================================================== WITH 9. SOLE DISPOSITIVE POWER 0 shares ========================================================== 10. SHARED DISPOSITIVE POWER 0 shares =============================================================================== 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,914,543 shares =============================================================================== 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] =============================================================================== 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 50.0% =============================================================================== 14. TYPE OF REPORTING PERSON* CO =============================================================================== *SEE INSTRUCTIONS BEFORE FILLING OUT! - ------------------------- ------------------- CUSIP NO. 688260 10 8 13D Page 3 of 3 Pages - ------------------------- ------------------- ================================================================================ 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) GSC Acquisition Corp. =============================================================================== 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* =============================================================================== 3. SEC USE ONLY =============================================================================== 4. SOURCE OF FUNDS* OO =============================================================================== 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] =============================================================================== 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware =============================================================================== 7. SOLE VOTING POWER 0 shares NUMBER OF SHARES ========================================================== BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 2,914,543 shares REPORTING PERSON ========================================================== WITH 9. SOLE DISPOSITIVE POWER 0 shares ========================================================== 10. SHARED DISPOSITIVE POWER 0 shares =============================================================================== 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,914,543 shares =============================================================================== 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] =============================================================================== 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 50.0% =============================================================================== 14. TYPE OF REPORTING PERSON* CO =============================================================================== *SEE INSTRUCTIONS BEFORE FILLING OUT! SCHEDULE 13D This Schedule 13D (this "Schedule 13D") is being filed by Gart Sports Company, a Delaware corporation ("Gart"), and GSC Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Gart ("GSC" and, together with Gart, the "Reporting Persons"), with respect to the shares of common stock, $1.00 par value per share (the "Issuer Common Stock"), of Oshman's Sporting Goods, Inc., a Delaware corporation (the "Issuer"), beneficially owned by the Stockholders (as defined in Item 4). The Reporting Persons have shared voting power with respect to 2,914,543 shares of Issuer Common Stock pursuant to the Voting Agreements (as defined in Item 4). As a result of the Voting Agreements, the Reporting Persons and the Stockholders may be deemed to constitute a "group" within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended. Neither the filing of this Schedule 13D nor anything contained herein shall be construed as an admission that the Reporting Persons together with the Stockholders constitute a "person" or "group" for any purpose. The Reporting Persons, as of the date of this Schedule 13D, do not directly own any shares of Issuer Common Stock; however, the Reporting Persons intend to acquire all of the outstanding Issuer Common Stock pursuant to the Merger Agreement (as defined in Item 4), subject to the terms and conditions set forth therein. Item 1. Security and Issuer. This Schedule 13D relates to the common stock, $1.00 par value per share, of Oshman's Sporting Goods, Inc., a Delaware corporation. The Issuer's principal executive offices are located at 2302 Maxwell Lane, Houston, Texas 77023. The Issuer's telephone number is (713) 928-3171. Item 2. Identity and Background. This Schedule 13D is being filed jointly by Gart Sports Company and GSC Acquisition Corp. pursuant to their agreement to the joint filing of this Schedule 13D (the "Joint Filing Agreement," which is attached hereto as Exhibit 7.8). Each of the Reporting Persons is a Delaware corporation. The principal business of Gart is the operation of sporting goods retail stores throughout the United States. The principal business of GSC is to enter into the Merger Agreement and to consummate the transactions contemplated thereby. The address of the principal place of business and the principal office of each of the Reporting Persons is 1000 Broadway, Denver, Colorado 80203. Each of John Douglas Morton, Thomas T. Hendrickson, Arthur S. Hagan, James M. Van Alstyne, Michael McCaghren, Greg Waters, Anthony Forde and Nesa E. Hassanein is an executive officer of Gart and GSC. The business address of each of Messrs. Morton, Hendrickson, Hagan, Van Alstyne, McCaghren, Waters and Forde and Ms. Hassanein is c/o Gart Sports Company, 1000 Broadway, Denver, Colorado 80203. Each of Messrs. Morton, Hendrickson, Hagan, Van Alstyne, McCaghren, Waters and Forde and Ms. Hassanein is a United States citizen. -4- Each of John Douglas Morton, Jonathan D. Sokoloff, Jonathan A. Seiffer, Gordon D. Barker, Larry J. Hochberg and Peter R. Formanek is a director of Gart and GSC. The business address of each of Messrs. Barker, Hochberg and Formanek is c/o Gart Sports Company, 1000 Broadway, Denver, Colorado 80203. Each of Messrs. Barker, Hochberg and Formanek is a United States citizen. Each of Messrs. Sokoloff and Seiffer is a partner of Leonard Green & Partners, L.P., a Delaware limited partnership ("LGP"), which is a merchant and investment banking firm. The business address of LGP is 11111 Santa Monica Blvd., Los Angeles, California 90025. Mr. Barker is the Chief Executive Officer of Snyder Drug Stores, Inc., a chain of corporate and affiliate drug stores. The business address of Snyder Drug Stores, Inc. is 14525 Hwy. 7, Minnetonka, Minnesota 55345. Mr. Hochberg is National Chairman of the Unity Campaign for the United Jewish Communities. The business address of the United Jewish Communities is Suite 11E, 111 Eighth Avenue, New York, New York 10011. Mr. Formanek is a director of Perrigo Company, a manufacturer of store brand over-the-counter drug products and vitamins, and Borders Group, Inc., an operator of bookstores. The business address of Perrigo Company is 515 Eastern Avenue, Allegan, Michigan 49101. The business address of Borders Group, Inc. is 100 Phoenix Drive, Ann Arbor, Michigan 48108. Green Equity Investors, L.P., a Delaware limited partnership ("GEI"), which is a private equity fund, owns approximately 64.1% of the outstanding shares of common stock, $.01 par value per share ("Gart Common Stock"), of Gart. LGP is the management company of GEI. Leonard Green & Associates, L.P., a Delaware limited partnership ("LGA"), is the general partner of GEI. Each of Mr. Sokoloff, Verdi Group, Inc., a California corporation ("Verdi"), and GANMAX, Inc., a California corporation ("GANMAX"), is a general partner of LGA. The principal business of each of Verdi and GANMAX is being a general partner of LGA. The address of the principal business and the principal office of each of GEI, Verdi and GANMAX is 11111 Santa Monica Boulevard, Los Angeles, California 90025. As a result of its relationship with the Reporting Persons, each of GEI, LGP, LGA, Mr. Sokoloff, Verdi and GANMAX may be deemed to have indirect beneficial ownership of the Issuer Common Stock with respect to which the Reporting Persons have beneficial ownership. However, each of GEI, LGP, LGA, Mr. Sokoloff, Verdi and GANMAX disclaims beneficial ownership of such Issuer Common Stock. Leonard I. Green, Jonathan D. Sokoloff, John G. Danhakl, Peter J. Nolan, Gregory J. Annick, Jonathan A. Seiffer and John M. Baumer, each a United States citizen having a principal business address at 11111 Santa Monica Boulevard, Los Angeles, California 90025, either directly (whether through ownership interest or position) or through one or more intermediaries, may be deemed to control GEI, LGP and LGA. As stated above, GEI, LGP and LGA may be deemed to have indirect beneficial ownership of the Issuer Common Stock with respect to which the Reporting Persons have beneficial ownership. Accordingly, Messrs. Green, Sokoloff, Danhakl, Nolan, Annick, Seiffer and Baumer may be deemed to have indirect beneficial ownership of such Issuer Common Stock. However, each of such individuals disclaims beneficial ownership of such Issuer Common Stock. None of the Reporting Persons or any other person disclosed in response to this Item 2 has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years. None of the Reporting Persons or any other -5- person disclosed in response to this Item 2 has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3: Source and Amount of Funds or Other Consideration. The source of funds that will be used in connection with the cash portion of the Consideration (as defined in Item 4) in accordance with the Merger Agreement is expected to be commercial borrowings pursuant to a financing agreement between Gart and The CIT Group/Business Credit, Inc. Based on the closing price per share of Gart Common Stock on February 21, 2001, the total value of the Consideration required to consummate the Merger (as defined in Item 4) is approximately $84 million, which will be subject to change based on the price per share of Gart Common Stock at the effective time of the Merger. Item 4: Purpose of Transaction. The Reporting Persons and the Issuer entered into an Agreement and Plan of Merger, dated as of January 21, 2001 (the "Merger Agreement," which is attached hereto as Exhibit 7.1), pursuant to which the Issuer agreed to be acquired in a merger at a price per share of Issuer Common Stock equal to (a) $7.00 in cash plus (b) 0.55 shares of Gart Common Stock (the "Consideration"). The Merger Agreement provides for the merger of the Issuer with and into GSC, with GSC as the surviving corporation (the "Merger"). Subject to the terms and conditions contained in the Merger Agreement, at the effective time of the merger each outstanding share of Issuer Common Stock (except for (i) shares of Issuer Common Stock held in the Issuer's treasury or held by either of the Reporting Persons, and (ii) shares of Issuer Common Stock held by stockholders who have effectively exercised their rights with respect to such shares as dissenting stockholders under the Delaware General Corporation Law) will be cancelled and converted automatically into the right to receive the Consideration. In connection with the Merger Agreement, the Reporting Persons entered into voting agreements, dated as of January 21, 2001 (collectively, the "Voting Agreements," which are attached hereto as Exhibits 7.2, 7.3, 7.4, 7.5, 7.6 and 7.7), with the following Oshman's stockholders (collectively, the "Stockholders"): (a) Marilyn Oshman, individually and as a trustee; (b) Alvin Lubetkin; (c) Karen Desenberg, individually, as a custodian and as a trustee; (d) Jay Douglas Desenberg; (e) Judy O. Margolis, individually, as a custodian and as a trustee; (f) Barry M. Lewis, as a trustee; and (g) Edward C. Stanton III, as a trustee. Each Voting Agreement provides, among other things, that the Stockholder party to such agreement agrees to vote such Stockholder's shares of Issuer Common Stock in favor of adoption of the Merger Agreement and approval of the transactions contemplated thereby. As a result of the Voting Agreements, the Reporting Persons have a beneficial ownership interest in 2,914,543 shares of Issuer Common Stock through this shared voting control. Completion of the Merger is subject to a number of conditions, including: (a) adoption of the Merger Agreement and approval of the transactions contemplated thereby by the requisite vote of holders of Issuer Common Stock; (b) approval of the issuance of Gart -6- Common Stock contemplated by the Merger Agreement by the requisite vote of holders of Gart Common Stock; (c) the consummation of financing arrangements, as described in the Merger Agreement; and (d) compliance with all applicable regulatory requirements. It is anticipated that the Issuer Common Stock will be delisted from the American Stock Exchange as a result of the transactions contemplated by the Merger Agreement. The description of the transactions contemplated by the Merger Agreement disclosed in this Item 4 is qualified in its entirety by reference to the exhibits attached hereto. Except as disclosed in this Item 4, no Reporting Person or any other person disclosed in response to Item 2 has any current plans or proposals that relate to, or would result in, any of the events described in clauses (a) through (j) of the instructions to Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) Although the Reporting Persons do not directly own any shares of Issuer Common Stock as of the date hereof, pursuant to the Voting Agreements, each of the Reporting Persons beneficially owns 2,914,543 shares of Issuer Common Stock representing approximately 50.0% of all outstanding shares of Issuer Common Stock. The percentage of Issuer Common Stock identified in this Item 5 is based on 5,825,309 shares of Issuer Common Stock outstanding as of February 1, 2001, as disclosed in the Merger Agreement. (b) Pursuant to the Voting Agreements, the Reporting Persons have shared voting power with respect to 2,914,543 shares of Issuer Common Stock. (c) Except as set forth in this Schedule 13D, none of the Reporting Persons or any other person disclosed in response to Item 2 has effected any transactions in Issuer Common Stock during the past 60 days. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Other than the matters disclosed in response to Items 4 and 5, none of the Reporting Persons or any other person disclosed in response to Item 2 is a party to any contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of the securities, finder's fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. -7- Item 7. Material to be Filed as Exhibits. Exhibit 7.1 Agreement and Plan of Merger, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Oshman's Sporting Goods, Inc. (incorporated by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by Gart Sports Company on March 1, 2001) Exhibit 7.2 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Marilyn Oshman, individually and as a trustee Exhibit 7.3 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Alvin Lubetkin Exhibit 7.4 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp., Karen Desenberg, individually, as a custodian and as a trustee, and Jay Douglas Desenberg Exhibit 7.5 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Judy O. Margolis, individually, as a custodian and as a trustee Exhibit 7.6 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Barry M. Lewis, as a trustee Exhibit 7.7 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Edward C. Stanton III, as a trustee Exhibit 7.8 Joint Filing Agreement, dated as of March 2, 2001, by and between Gart Sports Company and GSC Acquisition Corp. -8- SIGNATURE After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: March 2, 2001 Gart Sports Company By: /s/ John Douglas Morton Name: John Douglas Morton Title: Chairman, President and CEO GSC Acquisition Corp. By: /s/ John Douglas Morton Name: John Douglas Morton Title: Chairman, President and CEO EXHIBIT INDEX Exhibit Description - ------- ----------- Exhibit 7.1 Agreement and Plan of Merger, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Oshman's Sporting Goods, Inc. (incorporated by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by Gart Sports Company on March 1, 2001) Exhibit 7.2 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Marilyn Oshman, individually and as a trustee Exhibit 7.3 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Alvin Lubetkin Exhibit 7.4 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp., Karen Desenberg, individually, as a custodian and as a trustee, and Jay Douglas Desenberg Exhibit 7.5 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Judy O. Margolis, individually, as a custodian and as a trustee Exhibit 7.6 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Barry M. Lewis, as a trustee Exhibit 7.7 Voting Agreement, dated as of February 21, 2001, by and among Gart Sports Company, GSC Acquisition Corp. and Edward C. Stanton III, as a trustee Exhibit 7.8 Joint Filing Agreement, dated as of March 2, 2001, by and between Gart Sports Company and GSC Acquisition Corp. EX-7.2 2 0002.txt VOTING AGREEMENT - MARILYN OSHMAN EXHIBIT 7.2 VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21, 2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or entity set forth on the signature page hereto (the "Stockholder"). WHEREAS, MergerSub, Gart and Oshman's Sporting Goods, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the "Merger Agreement"), which provides, among other things, for the merger of the Company with and into MergerSub, with MergerSub as the surviving corporation (the "Merger"); WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have required that the Stockholder make certain agreements with respect to all of the Stockholder's Subject Shares (as defined below), upon the terms and subject to the conditions of this Agreement; and WHEREAS, the Stockholder is willing to make certain agreements with respect to the Subject Shares, in order to induce MergerSub and Gart to enter into the Merger Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: 1. Voting Agreements. For so long as this Agreement is in effect, at any ----------------- meeting (whether annual, special or adjourned) of the stockholders of the Company, and in any action by consent of the stockholders of the Company, the Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by the Stockholder on the record date applicable to the meeting or consent (i) in favor of adoption of the Merger Agreement and approval of the Merger; (ii) against any competing Acquisition Transaction (as defined in the Merger Agreement) or other proposal inconsistent with the Merger Agreement or that may delay or adversely affect the likelihood of the completion of the transactions contemplated by the Merger Agreement; (iii) against any change in a majority of the persons who constitute the board of directors of the Company inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; (iv) against any change in the capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; and (v) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement that is considered at any such meeting or in any such consent. The Stockholder shall not enter into any agreement or understanding with any person the effect of which would be inconsistent with or violate the provisions of agreements contained in this Section 1. The Stockholder shall cast the Stockholder's vote or give the Stockholder's consent in accordance with the procedures communicated to the Stockholder by the Company relating thereto so that the vote or consent shall be duly counted for purposes of -1- determining that a quorum is present and for purposes of recording the results of that vote or consent. The Stockholder acknowledges receipt of a copy of the Merger Agreement. 2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any ----- officer of Gart), with full power of substitution, the proxy of the Stockholder with full power and authority, in the event that the Stockholder shall at any time fail to perform such Stockholder's obligations under Section 1, to vote or act by consent in respect of such Stockholder's Subject Shares and all of such Stockholder's other voting securities of the Company exclusively as provided in Section 1. The proxy hereby granted shall, for the term of this Agreement, be irrevocable and shall be deemed coupled with an interest in accordance with Section 212 of the Delaware General Corporation Law. 3. Subject Shares. The term "Subject Shares" shall mean all of the shares -------------- of Common Stock, par value $1.00 per share ("Common Stock"), owned by the Stockholder as of the date hereof, as set forth on Schedule A hereto, together ---------- with any and all shares of the Company's capital stock as to which the Stockholder acquires beneficial ownership after the date of this Agreement. For all purposes of this Agreement, "beneficial ownership" has the meaning given in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (the "Exchange Act"). 4. Stockholder Capacity. If the Stockholder is, or becomes during the -------------------- term of this Agreement, a director or officer of the Company, the Stockholder shall not be deemed to have made any agreement or understanding herein in such Stockholder's capacity as such director or officer, and no action taken by the Stockholder in such Stockholder's capacity as an officer or director of the Company shall be deemed a breach of this Agreement. The Stockholder signs solely in such Stockholder's capacity as the beneficial owner of the Stockholder's Subject Shares, and nothing herein shall limit or affect any actions taken by the Stockholder in any capacity as an officer or director of the Company to the extent specifically permitted by the Merger Agreement. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by the Stockholder. 5. Covenants. For so long as this Agreement is in effect, except as --------- otherwise contemplated by the transactions contemplated by the Merger Agreement, the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or any shares of the Company's capital stock that the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase shares of the Company's capital stock granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents or proxies with respect to any shares of the Company's capital stock that then constitute Subject Shares (other than pursuant to this Agreement), deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the transactions contemplated by the Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) -2- subject to Section 4, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Transaction, engage in any negotiation concerning an Acquisition Transaction, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction; and the Stockholder shall notify MergerSub immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, the Stockholder; or (iv) permit, cause, take any action, or fail to take any action that would make any representation, warranty, covenant or other undertaking of the Stockholder in this Agreement untrue or incorrect, or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing provisions of this -------- ------- Section 5 shall prohibit the Stockholder from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent as the Stockholder. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. 6. Waiver of Dissenters' Rights. The Stockholder hereby waives any rights ---------------------------- to dissent from the transactions contemplated by the Merger Agreement. 7. Representations and Warranties of the Stockholder. The Stockholder ------------------------------------------------- represents and warrants to Gart and MergerSub that: (a) Capacity; No Violations. The Stockholder, if such Stockholder is ----------------------- a trust, corporation or other legal entity, is duly organized and validly existing under the laws of the jurisdiction of its organization. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound, (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. The Stockholder has the power to vote or direct -------------- the voting of the Subject Shares. The Subject Shares are the only shares of any class of capital stock of the Company that the Stockholder has the right, power or authority (sole or shared) to sell or vote, and the Stockholder does not have any right to acquire, nor is the Stockholder the beneficial owner of, any other shares of any class of capital stock of the Company or any -3- other securities of the Company or any securities convertible into, or exchangeable or exercisable for, any shares of any class of capital stock of the Company or any other securities of the Company. The Stockholder is not a party to any contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares or that conflict with the provisions of this Agreement. (c) Title to Shares. The Stockholder is the sole record and --------------- beneficial owner of the Subject Shares, free and clear of any pledge, Lien, security interest, mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust or agreement, understanding, arrangement, right of first refusal, limitation on disposition, adverse claim of ownership or use or encumbrance of any kind, other than restrictions imposed by the securities laws or pursuant to this Agreement or the Merger Agreement and, with respect to any Subject Shares held by the Stockholder as trustee for the benefit of any other person, other than the rights of all beneficiaries under such trusts, which such rights are not inconsistent with the provisions of this Agreement. (d) No Finder's Fees. Except as disclosed in the Merger Agreement, no ---------------- broker, investment banker, financial advisor, or other person is entitled to any broker's, finder's, financial advisor's, or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by, or on behalf of, the Stockholder the payment of which could become the obligation of the Company or MergerSub. 8. Representations and Warranties of Gart and MergerSub. Gart and ---------------------------------------------------- MergerSub represent and warrant to the Stockholder that: (a) Binding Agreement. Each of Gart and MergerSub is a corporation ----------------- duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the Registration Rights Agreement (as defined in the Merger Agreement) and the Merger Agreement by each of Gart and MergerSub and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of Gart and MergerSub, and no other corporate proceedings on the part of Gart or MergerSub are necessary to authorize the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Merger Agreement by Gart or MergerSub and the consummation of the transactions contemplated hereby and thereby. Each of Gart and MergerSub has duly and validly executed this Agreement, and this Agreement constitutes a legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this ----------- Agreement, the consummation by MergerSub of the transactions contemplated hereby, nor the compliance by MergerSub with any of the provisions hereof will (i) conflict with or result in a breach of any provision of its Certificate of Incorporation or By-laws, (ii) require any -4- consent, approval, authorization or permit of, registration, declaration or filing (except for filings under the Exchange Act) with, or notification to, any governmental entity, (iii) result in a default (or an event that, with notice or lapse of time or both, would become a default) or give rise to any right of termination by any third party, cancellation, amendment or acceleration under any contract, agreement, instrument, commitment, arrangement or understanding, (iv) require any material consent, authorization or approval of any person other than a governmental entity, or (v) violate or conflict with any order, writ, injunction, decree or law applicable to MergerSub. (c) SEC Documents. Gart has timely filed with the SEC each report, proxy ------------- statement or information statement required to be filed by Gart for all periods ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of their respective dates, the Gart Reports (i) were prepared in all material respects in accordance with the applicable requirements of the Securities Act or the Exchange Act, as applicable, and the respective rules and regulations thereunder and (ii) did not (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such filing did not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of Gart's subsidiaries is required to file any forms, reports or other documents with the SEC. Each of the consolidated balance sheets of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including the related notes and schedules) fairly presents the consolidated financial position of Gart and its subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including any related notes and schedules) fairly presents the results of operations, retained earnings or cash flows, as the case may be, of Gart and its subsidiaries for the periods set forth therein (subject to, in the case of unaudited statements, normal year-end audit adjustments that would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods involved ("GAAP"), except as may be noted therein. There are no liabilities of Gart or any of its subsidiaries of any kind whatsoever that would be required by GAAP to be reflected on a consolidated balance sheet of Gart (including the notes thereto), other than: (x) liabilities incurred since January 29, 2000 in the ordinary course of business consistent with past practices; (y) reasonable and customary fees and expenses incurred in connection with the consummation of the transactions contemplated by the Merger Agreement; and (z) liabilities disclosed in the Gart Reports filed prior to the date hereof or reserved against on Gart's most recent balance sheet delivered to the Company prior to the date hereof. 9. Expenses. Each party hereto shall pay its own expenses incurred in -------- connection with this Agreement. 10. Specific Performance. The Stockholder acknowledges and agrees that, if -------------------- the Stockholder fails to perform any of the Stockholder's obligations under this Agreement, immediate and irreparable harm or injury would be caused to MergerSub for which money damages would not be an adequate remedy. Accordingly, the Stockholder agrees that MergerSub shall have the right, in addition to any other rights MergerSub may have, to specific performance of this Agreement. If MergerSub should institute an action or -5- proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that MergerSub has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. 11. Notices. All notices and other communications given or made pursuant ------- to this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier, or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): If to Gart or MergerSub: Gart Sports Company 1000 Broadway Denver, Colorado 80203 Attention: Nesa Hassanein Facsimile: (303) 864-2188 With a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attention: Anthony T. Iler Facsimile: (310) 203-7199 If to the Stockholder: at the address and telephone number set forth on the signature page With a copy to: Mayor, Day, Caldwell & Keeton, L.L.P. 700 Louisiana, Suite 1900 Houston, Texas 77023 Attention: John Clutterbuck Facsimile: (713) 225-7047 12. Parties in Interest. This Agreement shall inure to the benefit of, ------------------- and be binding upon, the parties hereto and their respective successors and permitted assigns; provided, however, that any successor in interest or assignee -------- ------- shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gart, MergerSub, the Stockholder or their successors or assigns, any rights or remedies under, or by reason of, this Agreement. 13. Entire Agreement; Amendments. Other than the Merger Agreement, the ---------------------------- Registration Rights Agreement and the transactions contemplated herein or therein, this Agreement contains the entire agreement between the Stockholder, Gart and MergerSub with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such subject matter. This Agreement may not be changed, amended or modified orally, but may -6- be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 14. Assignment. No party to this Agreement may assign any of its rights ---------- or obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) MergerSub may assign its rights and obligations under this Agreement to Gart or to any of Gart's or MergerSub's direct or indirect wholly owned subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject Shares to the extent permitted by Section 5 of this Agreement. 15. Headings. The section headings in this Agreement are for convenience -------- of reference only and shall not affect the construction of this Agreement. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 17. Governing Law. This Agreement shall be governed by, and construed in ------------- accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. 18. Term. This Agreement shall become effective on the date hereof and ---- shall terminate automatically and without further action on behalf of any party hereto at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date on which the Merger Agreement is terminated pursuant to, and in accordance with, its terms. -7- IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this Agreement to be duly executed and delivered on the day and year first above written. GART SPORTS COMPANY, a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO GSC ACQUISITION CORP., a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO -8- STOCKHOLDER /s/ Marilyn Joy Oshman ______________________________________ Marilyn Oshman /s/ Marilyn Joy Oshman -------------------------------------- Marilyn Oshman Lubetkin as Trustee for TR UA dtd May 14 1987 M/B Marilyn Oshman Lubetkin fbo Andrew Oshman Lubetkin /s/ Marilyn Joy Oshman -------------------------------------- Marilyn Oshman as Trustee for TR UA 08 24 00 fbo Andrew M O Lubetkin /s/ Marilyn Joy Oshman -------------------------------------- Marilyn Oshman as Trustee for TR UA dtd May 14 1987 M/B Marilyn Oshman Lubetkin fbo Karen Oshman Lubetkin Desenberg /s/ Marilyn Joy Oshman -------------------------------------- Marilyn Oshman as Trustee for TR UA 08 24 00 FBO Karen O L Desenberg Address: c/o Oshman's Sporting Goods, Inc. 2302 Maxwell Lane Houston, Texas 77023 Facsimile Number: (713) 967-8254 -9- SCHEDULE A Shares Owned or Held as Trustee ------------------------------- Name of Holder Number of Shares - -------------- ---------------- Marilyn Oshman 895,874 Marilyn Oshman Lubetkin as Trustee for TR UA dtd May 14 1987 M/B Marilyn Oshman Lubetkin fbo Andrew Oshman Lubetkin 125,900 Marilyn Oshman as Trustee for TR UA 08 24 00 fbo Andrew M O Lubetkin 31,750 Marilyn Oshman Lubetkin as Trustee for TR UA dtd May 14 1987 M/B Marilyn Oshman Lubetkin fbo Karen Oshman Lubetkin Desenberg 125,900* Marilyn Oshman as Trustee for TR UA 08 24 00 fbo Karen O L Desenberg 31,750 *These shares are pledged for a bank loan. -10- EX-7.3 3 0003.txt VOTING AGREEMENT - ALVIN LUBETKIN EXHIBIT 7.3 VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21, 2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or entity set forth on the signature page hereto (the "Stockholder"). WHEREAS, MergerSub, Gart and Oshman's Sporting Goods, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the "Merger Agreement"), which provides, among other things, for the merger of the Company with and into MergerSub, with MergerSub as the surviving corporation (the "Merger"); WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have required that the Stockholder make certain agreements with respect to all of the Stockholder's Subject Shares (as defined below), upon the terms and subject to the conditions of this Agreement; and WHEREAS, the Stockholder is willing to make certain agreements with respect to the Subject Shares, in order to induce MergerSub and Gart to enter into the Merger Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: 1. Voting Agreements. For so long as this Agreement is in effect, at any ----------------- meeting (whether annual, special or adjourned) of the stockholders of the Company, and in any action by consent of the stockholders of the Company, the Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by the Stockholder on the record date applicable to the meeting or consent (i) in favor of adoption of the Merger Agreement and approval of the Merger; (ii) against any competing Acquisition Transaction (as defined in the Merger Agreement) or other proposal inconsistent with the Merger Agreement or that may delay or adversely affect the likelihood of the completion of the transactions contemplated by the Merger Agreement; (iii) against any change in a majority of the persons who constitute the board of directors of the Company inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; (iv) against any change in the capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; and (v) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement that is considered at any such meeting or in any such consent. The Stockholder shall not enter into any agreement or understanding with any person the effect of which would be inconsistent with or violate the provisions of agreements contained in this Section 1. The Stockholder shall cast the Stockholder's vote or give the Stockholder's consent in accordance with the procedures communicated to the Stockholder by the Company relating thereto so that the vote or consent shall be duly counted for purposes of -1- determining that a quorum is present and for purposes of recording the results of that vote or consent. The Stockholder acknowledges receipt of a copy of the Merger Agreement. 2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any ----- officer of Gart), with full power of substitution, the proxy of the Stockholder with full power and authority, in the event that the Stockholder shall at any time fail to perform such Stockholder's obligations under Section 1, to vote or act by consent in respect of such Stockholder's Subject Shares and all of such Stockholder's other voting securities of the Company exclusively as provided in Section 1. The proxy hereby granted shall, for the term of this Agreement, be irrevocable and shall be deemed coupled with an interest in accordance with Section 212 of the Delaware General Corporation Law. 3. Subject Shares. The term "Subject Shares" shall mean all of the -------------- shares of Common Stock, par value $1.00 per share ("Common Stock"), owned by the Stockholder as of the date hereof, as set forth on Schedule A hereto, together ---------- with any and all shares of the Company's capital stock as to which the Stockholder acquires beneficial ownership after the date of this Agreement. For all purposes of this Agreement, "beneficial ownership" has the meaning given in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (the "Exchange Act"). 4. Stockholder Capacity. If the Stockholder is, or becomes during the -------------------- term of this Agreement, a director or officer of the Company, the Stockholder shall not be deemed to have made any agreement or understanding herein in such Stockholder's capacity as such director or officer, and no action taken by the Stockholder in such Stockholder's capacity as an officer or director of the Company shall be deemed a breach of this Agreement. The Stockholder signs solely in such Stockholder's capacity as the beneficial owner of the Stockholder's Subject Shares, and nothing herein shall limit or affect any actions taken by the Stockholder in any capacity as an officer or director of the Company to the extent specifically permitted by the Merger Agreement. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by the Stockholder. 5. Covenants. For so long as this Agreement is in effect, except as --------- otherwise contemplated by the transactions contemplated by the Merger Agreement, the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or any shares of the Company's capital stock that the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase shares of the Company's capital stock granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents or proxies with respect to any shares of the Company's capital stock that then constitute Subject Shares (other than pursuant to this Agreement), deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the transactions contemplated by the Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) -2- subject to Section 4, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Transaction, engage in any negotiation concerning an Acquisition Transaction, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction; and the Stockholder shall notify MergerSub immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, the Stockholder; or (iv) permit, cause, take any action, or fail to take any action that would make any representation, warranty, covenant or other undertaking of the Stockholder in this Agreement untrue or incorrect, or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing provisions of this -------- ------- Section 5 shall prohibit the Stockholder from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent as the Stockholder. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. 6. Waiver of Dissenters' Rights. The Stockholder hereby waives any ---------------------------- rights to dissent from the transactions contemplated by the Merger Agreement. 7. Representations and Warranties of the Stockholder. The Stockholder ------------------------------------------------- represents and warrants to Gart and MergerSub that: (a) Capacity; No Violations. The Stockholder, if such Stockholder is ----------------------- a trust, corporation or other legal entity, is duly organized and validly existing under the laws of the jurisdiction of its organization. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound, (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. The Stockholder has the power to vote or direct -------------- the voting of the Subject Shares. The Subject Shares are the only shares of any class of capital stock of the Company that the Stockholder has the right, power or authority (sole or shared) to sell or vote, and the Stockholder does not have any right to acquire, nor is the Stockholder the beneficial owner of, any other shares of any class of capital stock of the Company or any -3- other securities of the Company or any securities convertible into, or exchangeable or exercisable for, any shares of any class of capital stock of the Company or any other securities of the Company. The Stockholder is not a party to any contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares or that conflict with the provisions of this Agreement. (c) Title to Shares. The Stockholder is the sole record and --------------- beneficial owner of the Subject Shares, free and clear of any pledge, Lien, security interest, mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust or agreement, understanding, arrangement, right of first refusal, limitation on disposition, adverse claim of ownership or use or encumbrance of any kind, other than restrictions imposed by the securities laws or pursuant to this Agreement or the Merger Agreement and, with respect to any Subject Shares held by the Stockholder as trustee for the benefit of any other person, other than the rights of all beneficiaries under such trusts, which such rights are not inconsistent with the provisions of this Agreement. (d) No Finder's Fees. Except as disclosed in the Merger Agreement, no ---------------- broker, investment banker, financial advisor, or other person is entitled to any broker's, finder's, financial advisor's, or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by, or on behalf of, the Stockholder the payment of which could become the obligation of the Company or MergerSub. 8. Representations and Warranties of Gart and MergerSub. Gart and ---------------------------------------------------- MergerSub represent and warrant to the Stockholder that: (a) Binding Agreement. Each of Gart and MergerSub is a corporation ----------------- duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the Registration Rights Agreement (as defined in the Merger Agreement) and the Merger Agreement by each of Gart and MergerSub and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of Gart and MergerSub, and no other corporate proceedings on the part of Gart or MergerSub are necessary to authorize the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Merger Agreement by Gart or MergerSub and the consummation of the transactions contemplated hereby and thereby. Each of Gart and MergerSub has duly and validly executed this Agreement, and this Agreement constitutes a legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this ----------- Agreement, the consummation by MergerSub of the transactions contemplated hereby, nor the compliance by MergerSub with any of the provisions hereof will (i) conflict with or result in a breach of any provision of its Certificate of Incorporation or By-laws, (ii) require any -4- consent, approval, authorization or permit of, registration, declaration or filing (except for filings under the Exchange Act) with, or notification to, any governmental entity, (iii) result in a default (or an event that, with notice or lapse of time or both, would become a default) or give rise to any right of termination by any third party, cancellation, amendment or acceleration under any contract, agreement, instrument, commitment, arrangement or understanding, (iv) require any material consent, authorization or approval of any person other than a governmental entity, or (v) violate or conflict with any order, writ, injunction, decree or law applicable to MergerSub. (c) SEC Documents. Gart has timely filed with the SEC each report, ------------- proxy statement or information statement required to be filed by Gart for all periods ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of their respective dates, the Gart Reports (i) were prepared in all material respects in accordance with the applicable requirements of the Securities Act or the Exchange Act, as applicable, and the respective rules and regulations thereunder and (ii) did not (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such filing did not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of Gart's subsidiaries is required to file any forms, reports or other documents with the SEC. Each of the consolidated balance sheets of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including the related notes and schedules) fairly presents the consolidated financial position of Gart and its subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including any related notes and schedules) fairly presents the results of operations, retained earnings or cash flows, as the case may be, of Gart and its subsidiaries for the periods set forth therein (subject to, in the case of unaudited statements, normal year-end audit adjustments that would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods involved ("GAAP"), except as may be noted therein. There are no liabilities of Gart or any of its subsidiaries of any kind whatsoever that would be required by GAAP to be reflected on a consolidated balance sheet of Gart (including the notes thereto), other than: (x) liabilities incurred since January 29, 2000 in the ordinary course of business consistent with past practices; (y) reasonable and customary fees and expenses incurred in connection with the consummation of the transactions contemplated by the Merger Agreement; and (z) liabilities disclosed in the Gart Reports filed prior to the date hereof or reserved against on Gart's most recent balance sheet delivered to the Company prior to the date hereof. 9. Expenses. Each party hereto shall pay its own expenses incurred in -------- connection with this Agreement. 10. Specific Performance. The Stockholder acknowledges and agrees that, if -------------------- the Stockholder fails to perform any of the Stockholder's obligations under this Agreement, immediate and irreparable harm or injury would be caused to MergerSub for which money damages would not be an adequate remedy. Accordingly, the Stockholder agrees that MergerSub shall have the right, in addition to any other rights MergerSub may have, to specific performance of this Agreement. If MergerSub should institute an action or -5- proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that MergerSub has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. 11. Notices. All notices and other communications given or made pursuant ------- to this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier, or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): If to Gart or MergerSub: Gart Sports Company 1000 Broadway Denver, Colorado 80203 Attention: Nesa Hassanein Facsimile: (303) 864-2188 With a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attention: Anthony T. Iler Facsimile: (310) 203-7199 If to the Stockholder: at the address and telephone number set forth on the signature page With a copy to: Mayor, Day, Caldwell & Keeton, L.L.P. 700 Louisiana, Suite 1900 Houston, Texas 77023 Attention: John Clutterbuck Facsimile: (713) 225-7047 12. Parties in Interest. This Agreement shall inure to the benefit of, ------------------- and be binding upon, the parties hereto and their respective successors and permitted assigns; provided, however, that any successor in interest or assignee -------- ------- shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gart, MergerSub, the Stockholder or their successors or assigns, any rights or remedies under, or by reason of, this Agreement. 13. Entire Agreement; Amendments. Other than the Merger Agreement, the ---------------------------- Registration Rights Agreement and the transactions contemplated herein or therein, this Agreement contains the entire agreement between the Stockholder, Gart and MergerSub with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such subject matter. This Agreement may not be changed, amended or modified orally, but may -6- be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 14. Assignment. No party to this Agreement may assign any of its rights ---------- or obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) MergerSub may assign its rights and obligations under this Agreement to Gart or to any of Gart's or MergerSub's direct or indirect wholly owned subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject Shares to the extent permitted by Section 5 of this Agreement. 15. Headings. The section headings in this Agreement are for convenience -------- of reference only and shall not affect the construction of this Agreement. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 17. Governing Law. This Agreement shall be governed by, and construed in ------------- accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. 18. Term. This Agreement shall become effective on the date hereof and ---- shall terminate automatically and without further action on behalf of any party hereto at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date on which the Merger Agreement is terminated pursuant to, and in accordance with, its terms. -7- IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this Agreement to be duly executed and delivered on the day and year first above written. GART SPORTS COMPANY, a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO GSC ACQUISITION CORP., a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO -8- STOCKHOLDER /s/ Alvin N. Lubetkin --------------------------------- Alvin N. Lubetkin Address: c/o Oshman's Sporting Goods, Inc. 2302 Maxwell Lane Houston, Texas 77023 Facsimile Number: (713) 967-8254 -9- SCHEDULE A Shares Owned ------------ Name of Holder Number of Shares - -------------- ---------------- Alvin N. Lubetkin 110,900* *Alvin Lubetkin also has 30,000 Options which can be exercised. The number of shares does not include either Option shares that are not currently exercisable or the restricted stock grant. -10- EX-7.4 4 0004.txt VOTING AGREEMENT - KAREN AND JAY DESENBERG EXHIBIT 7.4 VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21, 2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or entity set forth on the signature page hereto (the "Stockholder"). WHEREAS, MergerSub, Gart and Oshman's Sporting Goods, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the "Merger Agreement"), which provides, among other things, for the merger of the Company with and into MergerSub, with MergerSub as the surviving corporation (the "Merger"); WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have required that the Stockholder make certain agreements with respect to all of the Stockholder's Subject Shares (as defined below), upon the terms and subject to the conditions of this Agreement; and WHEREAS, the Stockholder is willing to make certain agreements with respect to the Subject Shares, in order to induce MergerSub and Gart to enter into the Merger Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: 1. Voting Agreements. For so long as this Agreement is in effect, at ----------------- any meeting (whether annual, special or adjourned) of the stockholders of the Company, and in any action by consent of the stockholders of the Company, the Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by the Stockholder on the record date applicable to the meeting or consent (i) in favor of adoption of the Merger Agreement and approval of the Merger; (ii) against any competing Acquisition Transaction (as defined in the Merger Agreement) or other proposal inconsistent with the Merger Agreement or that may delay or adversely affect the likelihood of the completion of the transactions contemplated by the Merger Agreement; (iii) against any change in a majority of the persons who constitute the board of directors of the Company inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; (iv) against any change in the capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; and (v) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement that is considered at any such meeting or in any such consent. The Stockholder shall not enter into any agreement or understanding with any person the effect of which would be inconsistent with or violate the provisions of agreements contained in this Section 1. The Stockholder shall cast the Stockholder's vote or give the Stockholder's consent in accordance with the procedures communicated to the Stockholder by the Company relating thereto so that the vote or consent shall be duly counted for purposes of -1- determining that a quorum is present and for purposes of recording the results of that vote or consent. The Stockholder acknowledges receipt of a copy of the Merger Agreement. 2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any ----- officer of Gart), with full power of substitution, the proxy of the Stockholder with full power and authority, in the event that the Stockholder shall at any time fail to perform such Stockholder's obligations under Section 1, to vote or act by consent in respect of such Stockholder's Subject Shares and all of such Stockholder's other voting securities of the Company exclusively as provided in Section 1. The proxy hereby granted shall, for the term of this Agreement, be irrevocable and shall be deemed coupled with an interest in accordance with Section 212 of the Delaware General Corporation Law. 3. Subject Shares. The term "Subject Shares" shall mean all of the -------------- shares of Common Stock, par value $1.00 per share ("Common Stock"), owned by the Stockholder as of the date hereof, as set forth on Schedule A hereto, together ---------- with any and all shares of the Company's capital stock as to which the Stockholder acquires beneficial ownership after the date of this Agreement. For all purposes of this Agreement, "beneficial ownership" has the meaning given in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (the "Exchange Act"). 4. Stockholder Capacity. If the Stockholder is, or becomes during the -------------------- term of this Agreement, a director or officer of the Company, the Stockholder shall not be deemed to have made any agreement or understanding herein in such Stockholder's capacity as such director or officer, and no action taken by the Stockholder in such Stockholder's capacity as an officer or director of the Company shall be deemed a breach of this Agreement. The Stockholder signs solely in such Stockholder's capacity as the beneficial owner of the Stockholder's Subject Shares, and nothing herein shall limit or affect any actions taken by the Stockholder in any capacity as an officer or director of the Company to the extent specifically permitted by the Merger Agreement. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by the Stockholder. 5. Covenants. For so long as this Agreement is in effect, except as --------- otherwise contemplated by the transactions contemplated by the Merger Agreement, the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or any shares of the Company's capital stock that the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase shares of the Company's capital stock granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents or proxies with respect to any shares of the Company's capital stock that then constitute Subject Shares (other than pursuant to this Agreement), deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the transactions contemplated by the Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) -2- subject to Section 4, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Transaction, engage in any negotiation concerning an Acquisition Transaction, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction; and the Stockholder shall notify MergerSub immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, the Stockholder; or (iv) permit, cause, take any action, or fail to take any action that would make any representation, warranty, covenant or other undertaking of the Stockholder in this Agreement untrue or incorrect, or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing provisions of this -------- ------- Section 5 shall prohibit the Stockholder from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent as the Stockholder. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. 6. Waiver of Dissenters' Rights. The Stockholder hereby waives any ---------------------------- rights to dissent from the transactions contemplated by the Merger Agreement. 7. Representations and Warranties of the Stockholder. The Stockholder ------------------------------------------------- represents and warrants to Gart and MergerSub that: (a) Capacity; No Violations. The Stockholder, if such Stockholder is ----------------------- a trust, corporation or other legal entity, is duly organized and validly existing under the laws of the jurisdiction of its organization. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound, (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. The Stockholder has the power to vote or direct -------------- the voting of the Subject Shares. The Subject Shares are the only shares of any class of capital stock of the Company that the Stockholder has the right, power or authority (sole or shared) to sell or vote, and the Stockholder does not have any right to acquire, nor is the Stockholder the beneficial owner of, any other shares of any class of capital stock of the Company or any -3- other securities of the Company or any securities convertible into, or exchangeable or exercisable for, any shares of any class of capital stock of the Company or any other securities of the Company. The Stockholder is not a party to any contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares or that conflict with the provisions of this Agreement. (c) Title to Shares. The Stockholder is the sole record and --------------- beneficial owner of the Subject Shares, free and clear of any pledge, Lien, security interest, mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust or agreement, understanding, arrangement, right of first refusal, limitation on disposition, adverse claim of ownership or use or encumbrance of any kind, other than restrictions imposed by the securities laws or pursuant to this Agreement or the Merger Agreement and, with respect to any Subject Shares held by the Stockholder as trustee for the benefit of any other person, other than the rights of all beneficiaries under such trusts, which such rights are not inconsistent with the provisions of this Agreement. (d) No Finder's Fees. Except as disclosed in the Merger Agreement, no ---------------- broker, investment banker, financial advisor, or other person is entitled to any broker's, finder's, financial advisor's, or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by, or on behalf of, the Stockholder the payment of which could become the obligation of the Company or MergerSub. 8. Representations and Warranties of Gart and MergerSub. Gart and ---------------------------------------------------- MergerSub represent and warrant to the Stockholder that: (a) Binding Agreement. Each of Gart and MergerSub is a corporation ----------------- duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the Registration Rights Agreement (as defined in the Merger Agreement) and the Merger Agreement by each of Gart and MergerSub and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of Gart and MergerSub, and no other corporate proceedings on the part of Gart or MergerSub are necessary to authorize the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Merger Agreement by Gart or MergerSub and the consummation of the transactions contemplated hereby and thereby. Each of Gart and MergerSub has duly and validly executed this Agreement, and this Agreement constitutes a legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this ----------- Agreement, the consummation by MergerSub of the transactions contemplated hereby, nor the compliance by MergerSub with any of the provisions hereof will (i) conflict with or result in a breach of any provision of its Certificate of Incorporation or By-laws, (ii) require any -4- consent, approval, authorization or permit of, registration, declaration or filing (except for filings under the Exchange Act) with, or notification to, any governmental entity, (iii) result in a default (or an event that, with notice or lapse of time or both, would become a default) or give rise to any right of termination by any third party, cancellation, amendment or acceleration under any contract, agreement, instrument, commitment, arrangement or understanding, (iv) require any material consent, authorization or approval of any person other than a governmental entity, or (v) violate or conflict with any order, writ, injunction, decree or law applicable to MergerSub. (c) SEC Documents. Gart has timely filed with the SEC each report, ------------- proxy statement or information statement required to be filed by Gart for all periods ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of their respective dates, the Gart Reports (i) were prepared in all material respects in accordance with the applicable requirements of the Securities Act or the Exchange Act, as applicable, and the respective rules and regulations thereunder and (ii) did not (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such filing did not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of Gart's subsidiaries is required to file any forms, reports or other documents with the SEC. Each of the consolidated balance sheets of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including the related notes and schedules) fairly presents the consolidated financial position of Gart and its subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including any related notes and schedules) fairly presents the results of operations, retained earnings or cash flows, as the case may be, of Gart and its subsidiaries for the periods set forth therein (subject to, in the case of unaudited statements, normal year-end audit adjustments that would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods involved ("GAAP"), except as may be noted therein. There are no liabilities of Gart or any of its subsidiaries of any kind whatsoever that would be required by GAAP to be reflected on a consolidated balance sheet of Gart (including the notes thereto), other than: (x) liabilities incurred since January 29, 2000 in the ordinary course of business consistent with past practices; (y) reasonable and customary fees and expenses incurred in connection with the consummation of the transactions contemplated by the Merger Agreement; and (z) liabilities disclosed in the Gart Reports filed prior to the date hereof or reserved against on Gart's most recent balance sheet delivered to the Company prior to the date hereof. 9. Expenses. Each party hereto shall pay its own expenses incurred in -------- connection with this Agreement. 10. Specific Performance. The Stockholder acknowledges and agrees that, -------------------- if the Stockholder fails to perform any of the Stockholder's obligations under this Agreement, immediate and irreparable harm or injury would be caused to MergerSub for which money damages would not be an adequate remedy. Accordingly, the Stockholder agrees that MergerSub shall have the right, in addition to any other rights MergerSub may have, to specific performance of this Agreement. If MergerSub should institute an action or -5- proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that MergerSub has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. 11. Notices. All notices and other communications given or made pursuant ------- to this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier, or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): If to Gart or MergerSub: Gart Sports Company 1000 Broadway Denver, Colorado 80203 Attention: Nesa Hassanein Facsimile: (303) 864-2188 With a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attention: Anthony T. Iler Facsimile: (310) 203-7199 If to the Stockholder: at the address and telephone number set forth on the signature page With a copy to: Mayor, Day, Caldwell & Keeton, L.L.P. 700 Louisiana, Suite 1900 Houston, Texas 77023 Attention: John Clutterbuck Facsimile: (713) 225-7047 12. Parties in Interest. This Agreement shall inure to the benefit of, ------------------- and be binding upon, the parties hereto and their respective successors and permitted assigns; provided, however, that any successor in interest or assignee -------- ------- shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gart, MergerSub, the Stockholder or their successors or assigns, any rights or remedies under, or by reason of, this Agreement. 13. Entire Agreement; Amendments. Other than the Merger Agreement, the ---------------------------- Registration Rights Agreement and the transactions contemplated herein or therein, this Agreement contains the entire agreement between the Stockholder, Gart and MergerSub with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such subject matter. This Agreement may not be changed, amended or modified orally, but may -6- be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 14. Assignment. No party to this Agreement may assign any of its rights ---------- or obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) MergerSub may assign its rights and obligations under this Agreement to Gart or to any of Gart's or MergerSub's direct or indirect wholly owned subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject Shares to the extent permitted by Section 5 of this Agreement. 15. Headings. The section headings in this Agreement are for convenience -------- of reference only and shall not affect the construction of this Agreement. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 17. Governing Law. This Agreement shall be governed by, and construed in ------------- accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. 18. Term. This Agreement shall become effective on the date hereof and ---- shall terminate automatically and without further action on behalf of any party hereto at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date on which the Merger Agreement is terminated pursuant to, and in accordance with, its terms. -7- IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this Agreement to be duly executed and delivered on the day and year first above written. GART SPORTS COMPANY, a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO GSC ACQUISITION CORP., a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO -8- STOCKHOLDER /s/ Karen Desenberg ------------------------------------------- Karen Desenberg /s/ Jay Douglas Desenberg ------------------------------------------- Jay Douglas Desenberg /s/ Karen Desenberg trustee for Daily Megan ------------------------------------------- Desenberg ------------------------------------------- Karen Desenberg as Trustee for TR UA 08 24 00 fbo Daily Megan Desenberg /s/ Karen Desenberg trustee for Hope Marilyn -------------------------------------------- Desenberg -------------------------------------------- Karen Desenberg as Trustee for TR UA 08 24 00 fbo Hope Marilyn Desenberg /s/ Karen Desenberg trustee for Ryder Travis -------------------------------------------- Desenberg -------------------------------------------- Karen Desenberg as Trustee for TR UA 08 24 00 fbo Ryder Travis Desenberg /s/ Karen Desenberg custodian for Ryder --------------------------------------- Desenberg -------------------------------------------- Karen Desenberg as Custodian for Ryder Desenberg under the Texas Uniform Gifts to Minors Act /s/ Karen Desenberg custodian for Joshua ---------------------------------------------- Aaron Zavala ---------------------------------------------- Karen Desenberg as Custodian for Joshua Aaron Zavala under the Texas Uniform Gifts to Minors Act -9- /s/ Karen Desenberg custodian for Hope --------------------------------------------- Marilyn Desenberg --------------------------------------------- Karen Desenberg as Custodian for Hope Marilyn Desenberg under the Texas Uniform Gifts to Minors Act /s/ Karen Desenberg custodian for Daily --------------------------------------------- Megan Desenberg --------------------------------------------- Karen Desenberg as Custodian for Daily Megan Desenberg under the Texas Uniform Gifts to Minors Act Address: 1570 Silver King Drive Aspen, CO 81611 Facsimile Number: (970) 925-4403 -10- SCHEDULE A Shares Owned or Held as Trustee ------------------------------- Name of Holder Number of Shares - -------------- ---------------- Karen Desenberg 124,596* Jay Douglas Desenberg 1,550 Karen and Jay Douglas Desenberg 2,000 Karen Desenberg as Trustee for TR UA 08 24 00 fbo Daily Megan Desenberg 3,800 Karen Desenberg as Trustee for TR UA 08 24 00 fbo Hope Marilyn Desenberg 3,800 Karen Desenberg as Trustee for TR UA 08 24 00 fbo Ryder Travis Desenberg 3,800 Karen Desenberg as Custodian for Ryder Desenberg under the Texas Uniform Gifts to Minors Act 7,400 Karen Desenberg as Custodian for Joshua Aaron Zavala under the Texas Uniform Gifts to Minors Act 200 Karen Desenberg as Custodian for Hope Marilyn Desenberg under the Uniform Gifts to Minors Act 3,500 Karen Desenberg as Custodian for Daily Megan Desenberg under the Uniform Gifts to Minors Act 3,500 *Karen Desenberg also has 6,000 Options which can be exercised. The number of shares does not include Options that are not currently exercisable. -11- EX-7.5 5 0005.txt VOTING AGREEMENT - JUDY O. MARGOLIS EXHIBIT 7.5 VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21, 2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or entity set forth on the signature page hereto (the "Stockholder"). WHEREAS, MergerSub, Gart and Oshman's Sporting Goods, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the "Merger Agreement"), which provides, among other things, for the merger of the Company with and into MergerSub, with MergerSub as the surviving corporation (the "Merger"); WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have required that the Stockholder make certain agreements with respect to all of the Stockholder's Subject Shares (as defined below), upon the terms and subject to the conditions of this Agreement; and WHEREAS, the Stockholder is willing to make certain agreements with respect to the Subject Shares, in order to induce MergerSub and Gart to enter into the Merger Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: 1. Voting Agreements. For so long as this Agreement is in effect, at ----------------- any meeting (whether annual, special or adjourned) of the stockholders of the Company, and in any action by consent of the stockholders of the Company, the Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by the Stockholder on the record date applicable to the meeting or consent (i) in favor of adoption of the Merger Agreement and approval of the Merger; (ii) against any competing Acquisition Transaction (as defined in the Merger Agreement) or other proposal inconsistent with the Merger Agreement or that may delay or adversely affect the likelihood of the completion of the transactions contemplated by the Merger Agreement; (iii) against any change in a majority of the persons who constitute the board of directors of the Company inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; (iv) against any change in the capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; and (v) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement that is considered at any such meeting or in any such consent. The Stockholder shall not enter into any agreement or understanding with any person the effect of which would be inconsistent with or violate the provisions of agreements contained in this Section 1. The Stockholder shall cast the Stockholder's vote or give the Stockholder's consent in accordance with the procedures communicated to the Stockholder by the Company relating thereto so that the vote or consent shall be duly counted for purposes of -1- determining that a quorum is present and for purposes of recording the results of that vote or consent. The Stockholder acknowledges receipt of a copy of the Merger Agreement. 2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any ----- officer of Gart), with full power of substitution, the proxy of the Stockholder with full power and authority, in the event that the Stockholder shall at any time fail to perform such Stockholder's obligations under Section 1, to vote or act by consent in respect of such Stockholder's Subject Shares and all of such Stockholder's other voting securities of the Company exclusively as provided in Section 1. The proxy hereby granted shall, for the term of this Agreement, be irrevocable and shall be deemed coupled with an interest in accordance with Section 212 of the Delaware General Corporation Law. 3. Subject Shares. The term "Subject Shares" shall mean all of the shares -------------- of Common Stock, par value $1.00 per share ("Common Stock"), owned by the Stockholder as of the date hereof, as set forth on Schedule A hereto, together ---------- with any and all shares of the Company's capital stock as to which the Stockholder acquires beneficial ownership after the date of this Agreement. For all purposes of this Agreement, "beneficial ownership" has the meaning given in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (the "Exchange Act"). 4. Stockholder Capacity. The Stockholder is not an officer or director of -------------------- the Company. The Stockholder signs this Agreement solely in such Stockholder's capacity as the beneficial owner of the Stockholder's Subject Shares. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by the Stockholder. 5. Covenants. For so long as this Agreement is in effect, except as --------- otherwise contemplated by the transactions contemplated by the Merger Agreement, the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or any shares of the Company's capital stock that the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase shares of the Company's capital stock granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents or proxies with respect to any shares of the Company's capital stock that then constitute Subject Shares (other than pursuant to this Agreement), deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the transactions contemplated by the Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) subject to Section 4, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Transaction, engage in any negotiation concerning an Acquisition Transaction, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction; and the Stockholder shall notify MergerSub immediately if any such inquiries or proposals are received by, any such information is requested from, or any -2- such negotiations or discussions are sought to be initiated or continued with, the Stockholder; or (iv) permit, cause, take any action, or fail to take any action that would make any representation, warranty, covenant or other undertaking of the Stockholder in this Agreement untrue or incorrect, or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing -------- ------- provisions of this Section 5 shall prohibit the Stockholder from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent as the Stockholder. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. 6. Waiver of Dissenters' Rights. The Stockholder hereby waives any rights ---------------------------- to dissent from the transactions contemplated by the Merger Agreement. 7. Representations and Warranties of the Stockholder. The Stockholder ------------------------------------------------- represents and warrants to Gart and MergerSub that: (a) Capacity; No Violations. The Stockholder, if such Stockholder is ----------------------- a trust, corporation or other legal entity, is duly organized and validly existing under the laws of the jurisdiction of its organization. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound, (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. The Stockholder has the power to vote or direct -------------- the voting of the Subject Shares. The Subject Shares are the only shares of any class of capital stock of the Company that the Stockholder has the right, power or authority (sole or shared) to sell or vote, and the Stockholder does not have any right to acquire, nor is the Stockholder the beneficial owner of, any other shares of any class of capital stock of the Company or any other securities of the Company or any securities convertible into, or exchangeable or exercisable for, any shares of any class of capital stock of the Company or any other securities of the Company. The Stockholder is not a party to any contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares or that conflict with the provisions of this Agreement. -3- (c) Title to Shares. The Stockholder is the sole record and beneficial --------------- owner of the Subject Shares, free and clear of any pledge, Lien, security interest, mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust or agreement, understanding, arrangement, right of first refusal, limitation on disposition, adverse claim of ownership or use or encumbrance of any kind, other than restrictions imposed by the securities laws or pursuant to this Agreement or the Merger Agreement and, with respect to any Subject Shares held by the Stockholder as trustee for the benefit of any other person, other than the rights of all beneficiaries under such trusts, which such rights are not inconsistent with the provisions of this Agreement. (d) No Finder's Fees. Except as disclosed in the Merger Agreement, no ---------------- broker, investment banker, financial advisor, or other person is entitled to any broker's, finder's, financial advisor's, or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by, or on behalf of, the Stockholder the payment of which could become the obligation of the Company or MergerSub. 8. Representations and Warranties of Gart and MergerSub. Gart and ---------------------------------------------------- MergerSub represent and warrant to the Stockholder that: (a) Binding Agreement. Each of Gart and MergerSub is a corporation ----------------- duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the Registration Rights Agreement (as defined in the Merger Agreement) and the Merger Agreement by each of Gart and MergerSub and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of Gart and MergerSub, and no other corporate proceedings on the part of Gart or MergerSub are necessary to authorize the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Merger Agreement by Gart or MergerSub and the consummation of the transactions contemplated hereby and thereby. Each of Gart and MergerSub has duly and validly executed this Agreement, and this Agreement constitutes a legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this Agreement, ----------- the consummation by MergerSub of the transactions contemplated hereby, nor the compliance by MergerSub with any of the provisions hereof will (i) conflict with or result in a breach of any provision of its Certificate of Incorporation or By-laws, (ii) require any consent, approval, authorization or permit of, registration, declaration or filing (except for filings under the Exchange Act) with, or notification to, any governmental entity, (iii) result in a default (or an event that, with notice or lapse of time or both, would become a default) or give rise to any right of termination by any third party, cancellation, amendment or acceleration under any contract, agreement, instrument, commitment, arrangement or understanding, (iv) require any material consent, authorization or approval of any person -4- other than a governmental entity, or (v) violate or conflict with any order, writ, injunction, decree or law applicable to MergerSub. (c) SEC Documents. Gart has timely filed with the SEC each report, ------------- proxy statement or information statement required to be filed by Gart for all periods ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of their respective dates, the Gart Reports (i) were prepared in all material respects in accordance with the applicable requirements of the Securities Act or the Exchange Act, as applicable, and the respective rules and regulations thereunder and (ii) did not (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such filing did not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of Gart's subsidiaries is required to file any forms, reports or other documents with the SEC. Each of the consolidated balance sheets of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including the related notes and schedules) fairly presents the consolidated financial position of Gart and its subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including any related notes and schedules) fairly presents the results of operations, retained earnings or cash flows, as the case may be, of Gart and its subsidiaries for the periods set forth therein (subject to, in the case of unaudited statements, normal year-end audit adjustments that would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods involved ("GAAP"), except as may be noted therein. There are no liabilities of Gart or any of its subsidiaries of any kind whatsoever that would be required by GAAP to be reflected on a consolidated balance sheet of Gart (including the notes thereto), other than: (x) liabilities incurred since January 29, 2000 in the ordinary course of business consistent with past practices; (y) reasonable and customary fees and expenses incurred in connection with the consummation of the transactions contemplated by the Merger Agreement; and (z) liabilities disclosed in the Gart Reports filed prior to the date hereof or reserved against on Gart's most recent balance sheet delivered to the Company prior to the date hereof. 9. Expenses. Each party hereto shall pay its own expenses incurred in -------- connection with this Agreement. 10. Specific Performance. The Stockholder acknowledges and agrees that, if -------------------- the Stockholder fails to perform any of the Stockholder's obligations under this Agreement, immediate and irreparable harm or injury would be caused to MergerSub for which money damages would not be an adequate remedy. Accordingly, the Stockholder agrees that MergerSub shall have the right, in addition to any other rights MergerSub may have, to specific performance of this Agreement. If MergerSub should institute an action or proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that MergerSub has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. -5- 11. Notices. All notices and other communications given or made pursuant ------- to this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier, or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): If to Gart or MergerSub: Gart Sports Company 1000 Broadway Denver, Colorado 80203 Attention: Nesa Hassanein Facsimile: (303) 864-2188 With a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attention: Anthony T. Iler Facsimile: (310) 203-7199 If to the Stockholder: at the address and telephone number set forth on the signature page With a copy to: Thompson Knight Brown Parker & Leahy LLP 1200 Smith Street, Suite 3600 Houston, Texas, 77002 Attention: Dallas Parker, Esq. Facsimile: (713) 654-1871 12. Parties in Interest. This Agreement shall inure to the benefit of, and ------------------- be binding upon, the parties hereto and their respective successors and permitted assigns; provided, however, that any successor in interest or assignee -------- ------- shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gart, MergerSub, the Stockholder or their successors or assigns, any rights or remedies under, or by reason of, this Agreement. 13. Entire Agreement; Amendments. Other than the Merger Agreement, the ---------------------------- Registration Rights Agreement, the Indemnification Agreement, dated as of the date hereof, between Gart and the Stockholder, and the transactions contemplated herein or therein, this Agreement contains the entire agreement between the Stockholder, Gart and MergerSub with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such subject matter. This Agreement may not be changed, amended or modified orally, but may be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 14. Assignment. No party to this Agreement may assign any of its rights or ---------- obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) MergerSub may assign its rights and obligations under this -6- Agreement to Gart or to any of Gart's or MergerSub's direct or indirect wholly owned subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject Shares to the extent permitted by Section 5 of this Agreement. 15. Headings. The section headings in this Agreement are for convenience -------- of reference only and shall not affect the construction of this Agreement. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 17. Governing Law. This Agreement shall be governed by, and construed in ------------- accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. 18. Term. This Agreement shall become effective on the date hereof and ---- shall terminate automatically and without further action on behalf of any party hereto at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date on which the Merger Agreement is terminated pursuant to, and in accordance with, its terms. -7- IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this Agreement to be duly executed and delivered on the day and year first above written. GART SPORTS COMPANY, a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO GSC ACQUISITION CORP., a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO -8- STOCKHOLDER /s/ Judy O. Margolis ------------------------ Judy O. Margolis Address: c/o Margolis Interests 1400 Post Oak Blvd., Suite 808 Houston, Texas 77056 Facsimile Number: (713) 625-3585 -9- SCHEDULE A Shares Owned ------------ All shares of Common Stock of the Company owned directly by Judy O. Margolis All shares of Common Stock of the Company owned by Judy O. Margolis as Trustee of the Gary O. Gerson Trust UA Feb 21 87 All shares of Common Stock of the Company owned by Judy O. Margolis as Trustee of the Jay Olson Gerson Trust UA Feb 21 87 All shares of Common Stock of the Company owned by Judy Margolis as Custodian for Jake Gerson, Max Gerson and Morgan Gerson -10- EX-7.6 6 0006.txt VOTING AGREEMENT - BARRY M. LEWIS EXHIBIT 7.6 VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21, 2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or entity set forth on the signature page hereto (the "Stockholder"). WHEREAS, MergerSub, Gart and Oshman's Sporting Goods, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the "Merger Agreement"), which provides, among other things, for the merger of the Company with and into MergerSub, with MergerSub as the surviving corporation (the "Merger"); WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have required that the Stockholder make certain agreements with respect to all of the Stockholder's Subject Shares (as defined below), upon the terms and subject to the conditions of this Agreement; and WHEREAS, the Stockholder is willing to make certain agreements with respect to the Subject Shares, in order to induce MergerSub and Gart to enter into the Merger Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: 1. Voting Agreements. For so long as this Agreement is in effect, at any ----------------- meeting (whether annual, special or adjourned) of the stockholders of the Company, and in any action by consent of the stockholders of the Company, the Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by the Stockholder on the record date applicable to the meeting or consent (i) in favor of adoption of the Merger Agreement and approval of the Merger; (ii) against any competing Acquisition Transaction (as defined in the Merger Agreement) or other proposal inconsistent with the Merger Agreement or that may delay or adversely affect the likelihood of the completion of the transactions contemplated by the Merger Agreement; (iii) against any change in a majority of the persons who constitute the board of directors of the Company inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; (iv) against any change in the capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; and (v) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement that is considered at any such meeting or in any such consent. The Stockholder shall not enter into any agreement or understanding with any person the effect of which would be inconsistent with or violate the provisions of agreements contained in this Section 1. The Stockholder shall cast the Stockholder's vote or give the Stockholder's consent in accordance with the procedures communicated to the Stockholder by the Company relating thereto so that the vote or consent shall be duly counted for purposes of -1- determining that a quorum is present and for purposes of recording the results of that vote or consent. The Stockholder acknowledges receipt of a copy of the Merger Agreement. 2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any ----- officer of Gart), with full power of substitution, the proxy of the Stockholder with full power and authority, in the event that the Stockholder shall at any time fail to perform such Stockholder's obligations under Section 1, to vote or act by consent in respect of such Stockholder's Subject Shares and all of such Stockholder's other voting securities of the Company exclusively as provided in Section 1. The proxy hereby granted shall, for the term of this Agreement, be irrevocable and shall be deemed coupled with an interest in accordance with Section 212 of the Delaware General Corporation Law. 3. Subject Shares. The term "Subject Shares" shall mean all of the -------------- shares of Common Stock, par value $1.00 per share ("Common Stock"), owned by the Stockholder as of the date hereof, as set forth on Schedule A hereto, together ---------- with any and all shares of the Company's capital stock as to which the Stockholder acquires beneficial ownership after the date of this Agreement. For all purposes of this Agreement, "beneficial ownership" has the meaning given in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (the "Exchange Act"). 4. Stockholder Capacity. The Stockholder is not an officer or director -------------------- of the Company. The Stockholder signs this Agreement solely in such Stockholder's capacity as the beneficial owner of the Stockholder's Subject Shares. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by the Stockholder. 5. Covenants. For so long as this Agreement is in effect, except as --------- otherwise contemplated by the transactions contemplated by the Merger Agreement, the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or any shares of the Company's capital stock that the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase shares of the Company's capital stock granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents or proxies with respect to any shares of the Company's capital stock that then constitute Subject Shares (other than pursuant to this Agreement), deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the transactions contemplated by the Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) subject to Section 4, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Transaction, engage in any negotiation concerning an Acquisition Transaction, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction; and the Stockholder shall notify MergerSub immediately if any such inquiries or proposals are received by, any such information is requested from, or any -2- such negotiations or discussions are sought to be initiated or continued with, the Stockholder; or (iv) permit, cause, take any action, or fail to take any action that would make any representation, warranty, covenant or other undertaking of the Stockholder in this Agreement untrue or incorrect, or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing -------- ------- provisions of this Section 5 shall prohibit the Stockholder from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent as the Stockholder. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. 6. Waiver of Dissenters' Rights. The Stockholder hereby waives any ---------------------------- rights to dissent from the transactions contemplated by the Merger Agreement. 7. Representations and Warranties of the Stockholder. The Stockholder ------------------------------------------------- represents and warrants to Gart and MergerSub that: (a) Capacity; No Violations. The Stockholder, if such Stockholder is ----------------------- a trust, corporation or other legal entity, is duly organized and validly existing under the laws of the jurisdiction of its organization. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound, (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. The Stockholder has the power to vote or direct -------------- the voting of the Subject Shares. The Subject Shares are the only shares of any class of capital stock of the Company that the Stockholder has the right, power or authority (sole or shared) to sell or vote, and the Stockholder does not have any right to acquire, nor is the Stockholder the beneficial owner of, any other shares of any class of capital stock of the Company or any other securities of the Company or any securities convertible into, or exchangeable or exercisable for, any shares of any class of capital stock of the Company or any other securities of the Company. The Stockholder is not a party to any contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares or that conflict with the provisions of this Agreement. -3- (c) Title to Shares. The Stockholder is the sole record and --------------- beneficial owner of the Subject Shares, free and clear of any pledge, Lien, security interest, mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust or agreement, understanding, arrangement, right of first refusal, limitation on disposition, adverse claim of ownership or use or encumbrance of any kind, other than restrictions imposed by the securities laws or pursuant to this Agreement or the Merger Agreement and, with respect to any Subject Shares held by the Stockholder as trustee for the benefit of any other person, other than the rights of all beneficiaries under such trusts, which such rights are not inconsistent with the provisions of this Agreement. (d) No Finder's Fees. Except as disclosed in the Merger Agreement, ---------------- no broker, investment banker, financial advisor, or other person is entitled to any broker's, finder's, financial advisor's, or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by, or on behalf of, the Stockholder the payment of which could become the obligation of the Company or MergerSub. 8. Representations and Warranties of Gart and MergerSub. Gart and ---------------------------------------------------- MergerSub represent and warrant to the Stockholder that: (a) Binding Agreement. Each of Gart and MergerSub is a corporation ----------------- duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the Registration Rights Agreement (as defined in the Merger Agreement) and the Merger Agreement by each of Gart and MergerSub and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of Gart and MergerSub, and no other corporate proceedings on the part of Gart or MergerSub are necessary to authorize the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Merger Agreement by Gart or MergerSub and the consummation of the transactions contemplated hereby and thereby. Each of Gart and MergerSub has duly and validly executed this Agreement, and this Agreement constitutes a legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this ----------- Agreement, the consummation by MergerSub of the transactions contemplated hereby, nor the compliance by MergerSub with any of the provisions hereof will (i) conflict with or result in a breach of any provision of its Certificate of Incorporation or By-laws, (ii) require any consent, approval, authorization or permit of, registration, declaration or filing (except for filings under the Exchange Act) with, or notification to, any governmental entity, (iii) result in a default (or an event that, with notice or lapse of time or both, would become a default) or give rise to any right of termination by any third party, cancellation, amendment or acceleration under any contract, agreement, instrument, commitment, arrangement or understanding, (iv) require any material consent, authorization or approval of any person -4- other than a governmental entity, or (v) violate or conflict with any order, writ, injunction, decree or law applicable to MergerSub. (c) SEC Documents. Gart has timely filed with the SEC each report, ------------- proxy statement or information statement required to be filed by Gart for all periods ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of their respective dates, the Gart Reports (i) were prepared in all material respects in accordance with the applicable requirements of the Securities Act or the Exchange Act, as applicable, and the respective rules and regulations thereunder and (ii) did not (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such filing did not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of Gart's subsidiaries is required to file any forms, reports or other documents with the SEC. Each of the consolidated balance sheets of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including the related notes and schedules) fairly presents the consolidated financial position of Gart and its subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including any related notes and schedules) fairly presents the results of operations, retained earnings or cash flows, as the case may be, of Gart and its subsidiaries for the periods set forth therein (subject to, in the case of unaudited statements, normal year-end audit adjustments that would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods involved ("GAAP"), except as may be noted therein. There are no liabilities of Gart or any of its subsidiaries of any kind whatsoever that would be required by GAAP to be reflected on a consolidated balance sheet of Gart (including the notes thereto), other than: (x) liabilities incurred since January 29, 2000 in the ordinary course of business consistent with past practices; (y) reasonable and customary fees and expenses incurred in connection with the consummation of the transactions contemplated by the Merger Agreement; and (z) liabilities disclosed in the Gart Reports filed prior to the date hereof or reserved against on Gart's most recent balance sheet delivered to the Company prior to the date hereof. 9. Expenses. Each party hereto shall pay its own expenses incurred in -------- connection with this Agreement. 10. Specific Performance. The Stockholder acknowledges and agrees that, -------------------- if the Stockholder fails to perform any of the Stockholder's obligations under this Agreement, immediate and irreparable harm or injury would be caused to MergerSub for which money damages would not be an adequate remedy. Accordingly, the Stockholder agrees that MergerSub shall have the right, in addition to any other rights MergerSub may have, to specific performance of this Agreement. If MergerSub should institute an action or proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that MergerSub has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. -5- 11. Notices. All notices and other communications given or made pursuant ------- to this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier, or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): If to Gart or MergerSub: Gart Sports Company 1000 Broadway Denver, Colorado 80203 Attention: Nesa Hassanein Facsimile: (303) 864-2188 With a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attention: Anthony T. Iler Facsimile: (310) 203-7199 If to the Stockholder: at the address and telephone number set forth on the signature page With a copy to: Thompson Knight Brown Parker & Leahy LLP 1200 Smith Street, Suite 3600 Houston, Texas, 77002 Attention: Dallas Parker, Esq. Facsimile: (713) 654-1871 12. Parties in Interest. This Agreement shall inure to the benefit of, ------------------- and be binding upon, the parties hereto and their respective successors and permitted assigns; provided, however, that any successor in interest or assignee -------- ------- shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gart, MergerSub, the Stockholder or their successors or assigns, any rights or remedies under, or by reason of, this Agreement. 13. Entire Agreement; Amendments. Other than the Merger Agreement, the ---------------------------- Registration Rights Agreement, the Indemnification Agreement, dated as of the date hereof, between Gart and the Stockholder, and the transactions contemplated herein or therein, this Agreement contains the entire agreement between the Stockholder, Gart and MergerSub with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such subject matter. This Agreement may not be changed, amended or modified orally, but may be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 14. Assignment. No party to this Agreement may assign any of its rights ---------- or obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) MergerSub may assign its rights and obligations under this -6- Agreement to Gart or to any of Gart's or MergerSub's direct or indirect wholly owned subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject Shares to the extent permitted by Section 5 of this Agreement. 15. Headings. The section headings in this Agreement are for convenience -------- of reference only and shall not affect the construction of this Agreement. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 17. Governing Law. This Agreement shall be governed by, and construed in ------------- accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. 18. Term. This Agreement shall become effective on the date hereof and ---- shall terminate automatically and without further action on behalf of any party hereto at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date on which the Merger Agreement is terminated pursuant to, and in accordance with, its terms. -7- IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this Agreement to be duly executed and delivered on the day and year first above written. GART SPORTS COMPANY, a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO GSC ACQUISITION CORP., a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO -8- STOCKHOLDER /s/Barry M. Lewis, Trustee -------------------------- Barry M. Lewis as Trustee of the TR fbo Judy Deanna Oshman U/A dtd 10 01 43 Address: 515 Post Oak Blvd, Suite 310 Houston, Texas 77027 Facsimile Number: (713) 622-3585 -9- SCHEDULE A Shares Held as Trustee ---------------------- Name of Holder Number of Shares - -------------- ---------------- Barry M. Lewis as Trustee for TR fbo Judy Deanna Oshman U/A dtd 10/01/43 298,432 -10- EX-7.7 7 0007.txt VOTING AGREEMENT - EDWARD C. STANTON III EXHIBIT 7.7 VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21, 2001, by and among Gart Sports Company, a Delaware corporation ("Gart"), GSC Acquisition Corp., a Delaware corporation ("MergerSub"), and the person or entity set forth on the signature page hereto (the "Stockholder"). WHEREAS, MergerSub, Gart and Oshman's Sporting Goods, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the "Merger Agreement"), which provides, among other things, for the merger of the Company with and into MergerSub, with MergerSub as the surviving corporation (the "Merger"); WHEREAS, in connection with the Merger Agreement, MergerSub and Gart have required that the Stockholder make certain agreements with respect to all of the Stockholder's Subject Shares (as defined below), upon the terms and subject to the conditions of this Agreement; and WHEREAS, the Stockholder is willing to make certain agreements with respect to the Subject Shares, in order to induce MergerSub and Gart to enter into the Merger Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: 1. Voting Agreements. For so long as this Agreement is in effect, at ----------------- any meeting (whether annual, special or adjourned) of the stockholders of the Company, and in any action by consent of the stockholders of the Company, the Stockholder shall vote, or, if applicable, give consents with respect to, all of the Subject Shares that are held by the Stockholder on the record date applicable to the meeting or consent (i) in favor of adoption of the Merger Agreement and approval of the Merger; (ii) against any competing Acquisition Transaction (as defined in the Merger Agreement) or other proposal inconsistent with the Merger Agreement or that may delay or adversely affect the likelihood of the completion of the transactions contemplated by the Merger Agreement; (iii) against any change in a majority of the persons who constitute the board of directors of the Company inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; (iv) against any change in the capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws inconsistent with the Merger Agreement or the transactions contemplated by the Merger Agreement; and (v) in favor of any other matter necessary for consummation of the transactions contemplated by the Merger Agreement that is considered at any such meeting or in any such consent. The Stockholder shall not enter into any agreement or understanding with any person the effect of which would be inconsistent with or violate the provisions of agreements contained in this Section 1. The Stockholder shall cast the Stockholder's vote or give the Stockholder's consent in accordance with the procedures communicated to the Stockholder by the Company relating thereto so that the vote or consent shall be duly counted for purposes of -1- determining that a quorum is present and for purposes of recording the results of that vote or consent. The Stockholder acknowledges receipt of a copy of the Merger Agreement. 2. Proxy. The Stockholder hereby irrevocably appoints Gart (and any ----- officer of Gart), with full power of substitution, the proxy of the Stockholder with full power and authority, in the event that the Stockholder shall at any time fail to perform such Stockholder's obligations under Section 1, to vote or act by consent in respect of such Stockholder's Subject Shares and all of such Stockholder's other voting securities of the Company exclusively as provided in Section 1. The proxy hereby granted shall, for the term of this Agreement, be irrevocable and shall be deemed coupled with an interest in accordance with Section 212 of the Delaware General Corporation Law. 3. Subject Shares. The term "Subject Shares" shall mean all of the -------------- shares of Common Stock, par value $1.00 per share ("Common Stock"), owned by the Stockholder as of the date hereof, as set forth on Schedule A hereto, together ---------- with any and all shares of the Company's capital stock as to which the Stockholder acquires beneficial ownership after the date of this Agreement. For all purposes of this Agreement, "beneficial ownership" has the meaning given in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Securities and Exchange Commission thereunder (the "Exchange Act"). 4. Stockholder Capacity. The Stockholder is not an officer or director -------------------- of the Company. The Stockholder signs this Agreement solely in such Stockholder's capacity as the beneficial owner of the Stockholder's Subject Shares. Nothing in this Agreement shall be deemed to constitute a transfer of the beneficial ownership of the Subject Shares by the Stockholder. 5. Covenants. For so long as this Agreement is in effect, except as --------- otherwise contemplated by the transactions contemplated by the Merger Agreement, the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender or otherwise dispose of, or enter into any contract with respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance, tender or other disposition of (each such disposition or contract, a "Transfer"), any Subject Shares or any shares of the Company's capital stock that the Stockholder then has or will have the right to acquire pursuant to options, warrants, convertible securities or other such rights to purchase shares of the Company's capital stock granted to the Stockholder by the Company; (ii) grant any powers of attorney, consents or proxies with respect to any shares of the Company's capital stock that then constitute Subject Shares (other than pursuant to this Agreement), deposit any of the Subject Shares into a voting trust, enter into a voting or option agreement with respect to any of the Subject Shares inconsistent with the transactions contemplated by the Merger Agreement or this Agreement, or otherwise restrict or take any action adversely affecting the ability of the Stockholder freely to exercise all voting rights with respect to the Subject Shares; (iii) subject to Section 4, directly or indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Transaction, engage in any negotiation concerning an Acquisition Transaction, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction; and the Stockholder shall notify MergerSub immediately if any such inquiries or proposals are received by, any such information is requested from, or any -2- such negotiations or discussions are sought to be initiated or continued with, the Stockholder; or (iv) permit, cause, take any action, or fail to take any action that would make any representation, warranty, covenant or other undertaking of the Stockholder in this Agreement untrue or incorrect, or prevent, burden or materially delay the consummation of the transactions contemplated by this Agreement; provided, however, that nothing in the foregoing -------- ------- provisions of this Section 5 shall prohibit the Stockholder from effecting any transfer of Subject Shares pursuant to any bona fide charitable gift or by will or applicable laws of descent and distribution, or for estate planning purposes, if the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent as the Stockholder. As used in this Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act. 6. Waiver of Dissenters' Rights. The Stockholder hereby waives any ---------------------------- rights to dissent from the transactions contemplated by the Merger Agreement. 7. Representations and Warranties of the Stockholder. The Stockholder ------------------------------------------------- represents and warrants to Gart and MergerSub that: (a) Capacity; No Violations. The Stockholder, if such Stockholder is ----------------------- a trust, corporation or other legal entity, is duly organized and validly existing under the laws of the jurisdiction of its organization. The Stockholder has the legal capacity to enter into this Agreement and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Stockholder and constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity (whether considered in a proceeding in equity or at law). The execution, delivery and performance by the Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a breach or default under, any of the terms of any contract, commitment or other obligation to which the Stockholder is a party or by which the Stockholder is bound, (ii) violate any order, writ, injunction, decree or statute, or any law, rule or regulation applicable to the Stockholder or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the creation of, or impose any obligation on the Stockholder to create, any Lien upon the Subject Shares that would prevent the Stockholder from voting the Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security interest, claim, third party right or other encumbrance. (b) Subject Shares. The Stockholder has the power to vote or direct -------------- the voting of the Subject Shares. The Subject Shares are the only shares of any class of capital stock of the Company that the Stockholder has the right, power or authority (sole or shared) to sell or vote, and the Stockholder does not have any right to acquire, nor is the Stockholder the beneficial owner of, any other shares of any class of capital stock of the Company or any other securities of the Company or any securities convertible into, or exchangeable or exercisable for, any shares of any class of capital stock of the Company or any other securities of the Company. The Stockholder is not a party to any contracts (including proxies, voting trusts or voting agreements) that would prevent the Stockholder from voting the Subject Shares or that conflict with the provisions of this Agreement. -3- (c) Title to Shares. The Stockholder is the sole record and --------------- beneficial owner of the Subject Shares, free and clear of any pledge, Lien, security interest, mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust or agreement, understanding, arrangement, right of first refusal, limitation on disposition, adverse claim of ownership or use or encumbrance of any kind, other than restrictions imposed by the securities laws or pursuant to this Agreement or the Merger Agreement and, with respect to any Subject Shares held by the Stockholder as trustee for the benefit of any other person, other than the rights of all beneficiaries under such trusts, which such rights are not inconsistent with the provisions of this Agreement. (d) No Finder's Fees. Except as disclosed in the Merger Agreement, no ---------------- broker, investment banker, financial advisor, or other person is entitled to any broker's, finder's, financial advisor's, or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by, or on behalf of, the Stockholder the payment of which could become the obligation of the Company or MergerSub. 8. Representations and Warranties of Gart and MergerSub. Gart and ---------------------------------------------------- MergerSub represent and warrant to the Stockholder that: (a) Binding Agreement. Each of Gart and MergerSub is a corporation ----------------- duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the Registration Rights Agreement (as defined in the Merger Agreement) and the Merger Agreement by each of Gart and MergerSub and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of Gart and MergerSub, and no other corporate proceedings on the part of Gart or MergerSub are necessary to authorize the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Merger Agreement by Gart or MergerSub and the consummation of the transactions contemplated hereby and thereby. Each of Gart and MergerSub has duly and validly executed this Agreement, and this Agreement constitutes a legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). (b) No Conflict. Neither the execution and delivery of this ----------- Agreement, the consummation by MergerSub of the transactions contemplated hereby, nor the compliance by MergerSub with any of the provisions hereof will (i) conflict with or result in a breach of any provision of its Certificate of Incorporation or By-laws, (ii) require any consent, approval, authorization or permit of, registration, declaration or filing (except for filings under the Exchange Act) with, or notification to, any governmental entity, (iii) result in a default (or an event that, with notice or lapse of time or both, would become a default) or give rise to any right of termination by any third party, cancellation, amendment or acceleration under any contract, agreement, instrument, commitment, arrangement or understanding, (iv) require any material consent, authorization or approval of any person -4- other than a governmental entity, or (v) violate or conflict with any order, writ, injunction, decree or law applicable to MergerSub. (c) SEC Documents. Gart has timely filed with the SEC each report, ------------- proxy statement or information statement required to be filed by Gart for all periods ending on or after December 31, 1999 (collectively, the "Gart Reports"). As of their respective dates, the Gart Reports (i) were prepared in all material respects in accordance with the applicable requirements of the Securities Act or the Exchange Act, as applicable, and the respective rules and regulations thereunder and (ii) did not (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such filing did not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. None of Gart's subsidiaries is required to file any forms, reports or other documents with the SEC. Each of the consolidated balance sheets of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including the related notes and schedules) fairly presents the consolidated financial position of Gart and its subsidiaries as of its date and each of the consolidated statements of income, retained earnings and cash flows of Gart and its subsidiaries included in or incorporated by reference into the Gart Reports (including any related notes and schedules) fairly presents the results of operations, retained earnings or cash flows, as the case may be, of Gart and its subsidiaries for the periods set forth therein (subject to, in the case of unaudited statements, normal year-end audit adjustments that would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods involved ("GAAP"), except as may be noted therein. There are no liabilities of Gart or any of its subsidiaries of any kind whatsoever that would be required by GAAP to be reflected on a consolidated balance sheet of Gart (including the notes thereto), other than: (x) liabilities incurred since January 29, 2000 in the ordinary course of business consistent with past practices; (y) reasonable and customary fees and expenses incurred in connection with the consummation of the transactions contemplated by the Merger Agreement; and (z) liabilities disclosed in the Gart Reports filed prior to the date hereof or reserved against on Gart's most recent balance sheet delivered to the Company prior to the date hereof. 9. Expenses. Each party hereto shall pay its own expenses incurred in -------- connection with this Agreement. 10. Specific Performance. The Stockholder acknowledges and agrees that, -------------------- if the Stockholder fails to perform any of the Stockholder's obligations under this Agreement, immediate and irreparable harm or injury would be caused to MergerSub for which money damages would not be an adequate remedy. Accordingly, the Stockholder agrees that MergerSub shall have the right, in addition to any other rights MergerSub may have, to specific performance of this Agreement. If MergerSub should institute an action or proceeding seeking specific enforcement of the provisions of this Agreement, the Stockholder hereby waives the claim or defense that MergerSub has an adequate remedy at law and hereby agrees not to assert in that action or proceeding the claim or defense that a remedy at law exists. The Stockholder further agrees to waive any requirements for the securing or posting of any bond in connection with obtaining any equitable relief. -5- 11. Notices. All notices and other communications given or made pursuant ------- to this Agreement shall be in writing and shall be deemed to have been duly given or made as of the date of receipt and shall be delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), sent by overnight courier, or sent by telecopy, to the applicable party at the following addresses or telecopy numbers (or at any other address or telecopy number for a party as shall be specified by like notice): If to Gart or MergerSub: Gart Sports Company 1000 Broadway Denver, Colorado 80203 Attention: Nesa Hassanein Facsimile: (303) 864-2188 With a copy to: Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attention: Anthony T. Iler Facsimile: (310) 203-7199 If to the Stockholder: at the address and telephone number set forth on the signature page With a copy to: Mayor, Day, Caldwell & Keeton, L.L.P. 700 Louisiana, Suite 1900 Houston, Texas 77023 Attention: John Clutterbuck Facsimile: (713) 225-7047 12. Parties in Interest. This Agreement shall inure to the benefit of, ------------------- and be binding upon, the parties hereto and their respective successors and permitted assigns; provided, however, that any successor in interest or assignee -------- ------- shall agree to be bound by the provisions of this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gart, MergerSub, the Stockholder or their successors or assigns, any rights or remedies under, or by reason of, this Agreement. 13. Entire Agreement; Amendments. Other than the Merger Agreement, the ---------------------------- Registration Rights Agreement, the Indemnification Agreement, dated as of the date hereof, between Gart and the Stockholder, and the transactions contemplated herein or therein, this Agreement contains the entire agreement between the Stockholder, Gart and MergerSub with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such subject matter. This Agreement may not be changed, amended or modified orally, but may be changed only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought. 14. Assignment. No party to this Agreement may assign any of its rights ---------- or obligations under this Agreement without the prior written consent of the other party to this Agreement, except that (a) MergerSub may assign its rights and obligations under this -6- Agreement to Gart or to any of Gart's or MergerSub's direct or indirect wholly owned subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject Shares to the extent permitted by Section 5 of this Agreement. 15. Headings. The section headings in this Agreement are for convenience -------- of reference only and shall not affect the construction of this Agreement. 16. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same instrument. 17. Governing Law. This Agreement shall be governed by, and construed in ------------- accordance with, the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. 18. Term. This Agreement shall become effective on the date hereof and ---- shall terminate automatically and without further action on behalf of any party hereto at the earlier of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the date on which the Merger Agreement is terminated pursuant to, and in accordance with, its terms. -7- IN WITNESS WHEREOF, Gart, MergerSub and the Stockholder have caused this Agreement to be duly executed and delivered on the day and year first above written. GART SPORTS COMPANY, a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO GSC ACQUISITION CORP., a Delaware corporation By /s/ John Douglas Morton ______________________________ Name: John Douglas Morton Title: Chairman, President and CEO -8- STOCKHOLDER /s/ Edward C. Stanton --------------------- Edward C. Stanton III as Trustee for TR U/A dtd 10 01 43 fbo Marilyn Joy Oshman Address: 1111 Hermann Drive, #7-D Houston, TX 77004 Facsimile Number: (713) 528-2441 -9- SCHEDULE A Shares Held as Trustee ---------------------- Name of Holder Number of Shares - -------------- ---------------- Edward C. Stanton III as Trustee for TR U/A dtd 10 01 43 fbo Marilyn Joy Oshman 422,300 -10- EX-7.8 8 0008.txt JOINT FILING AGREEMENT, DATED AS OF MARCH 2, 2001 EXHIBIT 7.8 AGREEMENT REGARDING JOINT FILING OF STATEMENT ON SCHEDULE 13D In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, each of the persons named below agrees to the joint filing on behalf of each of them of a Statement on Schedule 13D (including amendments thereto) with respect to the common stock, $1.00 par value per share, of Oshman's Sporting Goods, Inc., a Delaware corporation, and further agrees that this Joint Filing Agreement be included as an exhibit to such filings, provided that, as contemplated by Section 13d-1(k)(1)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other person making a filing, unless such person knows or has reason to believe that such information is inaccurate. Dated: March 2, 2001 Gart Sports Company By: /s/ John Douglas Morton Name: John Douglas Morton Title: Chairman, President and CEO GSC Acquisition Corp By: /s/ John Douglas Morton Name: John Douglas Morton Title: Chairman, President and CEO -----END PRIVACY-ENHANCED MESSAGE-----