ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of October 8,
2003, by and between Hampshire Investments, Limited, a corporation organized
under the laws of the State of Delaware ("Seller"), and K Holdings, LLC, a
limited liability company organized under the laws of the State of Delaware
("Buyer").
RECITALS
WHEREAS, Seller has determined to dispose of the assets specified on Annex
A hereto (the "Purchased Assets");
WHEREAS, Seller desires to sell the Purchased Assets to Buyer, and Buyer
desires to purchase the Purchased Assets from Seller, on the terms and subject
to the conditions set forth herein; and
WHEREAS, Buyer is the owner of 250,000 shares of common stock, par value
$0.10 per share, of Hampshire Group, Limited (the "HGL Shares"), which shares
shall be transferred to Seller as consideration for the Purchased Assets.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein, and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"Buyer" shall have the meaning given to such term in the first paragraph of
this Agreement.
"Closing" shall have the meaning given to such term in Section 2.3.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien, security interest, charge, preference,
participation interest, priority or security agreement.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union or other entity.
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"Seller" has the meaning given to such term in the first paragraph of this
Agreement.
2. PURCHASE AND SALE; ASSUMED LIABILITIES; CLOSING
2.1. PURCHASE AND SALE. On the terms and subject to the conditions hereof,
(a) Buyer hereby purchases and accepts from Seller and Seller hereby sells,
assigns, transfers and conveys to Buyer, the Purchased Assets, free and clear of
any Liens; and (b) as consideration for the Purchased Assets, Buyer hereby
sells, assigns, transfers and conveys the HGL Shares to Seller.
2.2. ASSUMED LIABILITIES. Buyer hereby assumes, and from and after the
Closing, shall perform, pay, satisfy, honor and discharge when due those
liabilities, obligations and commitments of Seller listed on Annex B hereto (the
"Assumed Liabilities"). Buyer shall not assume any other liabilities,
obligations or commitments of Seller other than the Assumed Liabilities.
2.3. CLOSING. The closing of the purchase and sale of the Purchased Assets
provided for in this Agreement (the "Closing") will take place at the offices of
Kronish Lieb Weiner & Hellman LLP, 1114 Avenue of the Americas, New York, New
York 10036, at such time as:
(a) Buyer delivers to Seller certificates representing the HGL Shares,
duly endorsed (or accompanied by duly executed stock powers), for transfer
to Seller; and
(b) Each of Seller and Buyer execute and deliver all such instruments,
documents and certificates as may be reasonably requested by the other
party to consummate the transactions contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1. ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to execute and deliver this
Agreement and perform and consummate the transactions contemplated hereby.
3.2. AUTHORITY. The execution and delivery of this Agreement by Seller and
the performance by Seller of its obligations hereunder have been duly authorized
by all necessary action by Seller. This Agreement has been duly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller
enforceable in accordance with its terms, except as may be limited by general
principles of equity and subject to applicable bankruptcy, insolvency,
moratorium or similar laws of general application related to or affecting
creditors' rights.
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3.3. TRANSFER OF TITLE TO PURCHASED ASSETS. Upon transfer of the HGL Shares
to Seller in accordance with the terms hereof, Seller will have transferred to
Buyer all of its right, title and interest in and to the Purchased Assets and
risk of loss to the Purchased Assets shall pass to Buyer as of 9:00 A.M., New
York time on October 8, 2003.
3.4. NO CONFLICTS. The execution and delivery of this Agreement by Seller
and the performance by Seller of its obligations hereunder will not (a) result
in a violation of Seller's certificate of incorporation or bylaws, each as
amended to date, (b) result in a violation of any law, judgment or order
applicable to Seller, (c) conflict with, result in a breach of, or constitute a
default, or give rise to any right of termination, acceleration or cancellation,
under any material contract to which Seller is a party or (d) result in the
creation or imposition of any Lien upon the Purchased Assets. Except as set
forth on Schedule 3.4, no consents, waivers or approvals of parties to any
material contract to which Seller is a party are required in connection with the
transactions contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1. ORGANIZATION AND GOOD STANDING. Buyer is a limited liability
corporation duly organized, validly existing and in good standing under the laws
of the state of its organization, with full power and authority to execute and
deliver this Agreement and perform and consummate the transactions contemplated
hereby.
4.2. AUTHORITY. The execution and delivery of this Agreement by Buyer and
the performance by Buyer of its obligations hereunder have been duly authorized
by all necessary action by Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes a valid and binding obligation of Buyer
enforceable in accordance with its terms, except as may be limited by general
principles of equity and subject to applicable bankruptcy, insolvency,
moratorium or similar laws of general application related to or affecting
creditors' rights.
4.3. NO CONFLICTS. The execution and delivery of this Agreement by Buyer
and the performance by Buyer of its obligations hereunder will not (a) result in
a violation of such Buyer's organizational documents, (b) result in a violation
of any law, judgment or order applicable to Buyer, (c) conflict with, result in
a breach of, or constitute a default, or give rise to any right of termination,
acceleration or cancellation, under any material contract to which Buyer is a
party or (d) result in the creation or imposition of any Lien upon the HGL
Shares to be delivered by Buyer to Seller pursuant to this Agreement. No
consents, waivers or approvals of parties to any material contract to which
Buyer is a party are required in connection with the transactions contemplated
hereby.
4.4. BUYER'S OWNERSHIP OF HGL SHARES. Buyer beneficially owns the HGL
Shares, free and clear of all Liens.
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5. GENERAL PROVISIONS
5.1. BUYER ACKNOWLEDGEMENT. Buyer hereby acknowledges that Seller makes no
express or implied representations or warranties whatsoever with respect to (a)
the Purchased Assets, which are being transferred to it on an "AS IS, WHERE IS"
basis, i.e., without representations or warranties regarding value, condition of
use, merchantability or fitness for a particular purpose or (b) the liabilities
relating to the Purchased Assets. Buyer hereby further acknowledges that it is
relying on its own familiarity with the Purchased Assets and the related
liabilities in making its decision to purchase the Purchased Assets and assume
the Assumed Liabilities and Buyer will not have any recourse against Seller
after the Closing by way of indemnification rights or claims for damages or
otherwise for any matter whatsoever relating to the Purchased Assets or the
Assumed Liabilities (other than a breach of the representation made by Seller in
Section 3.3 hereof).
5.2. EXPENSES. Except as otherwise expressly provided in this Agreement,
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated thereby, including all fees and expenses of
agents, representatives, counsel, and accountants.
5.3. PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity
with respect to this Agreement or the transactions contemplated hereby will be
issued at such time and in such manner as Seller determines. Unless consented to
by Seller in advance or required by applicable law, prior to Seller's public
announcement of the Closing, Buyer shall, and shall cause each of its affiliates
to, keep this Agreement strictly confidential and may not make any disclosure of
this Agreement to any Person.
5.4. NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by fax (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service, in
each case to the appropriate addresses and fax numbers set forth below (or to
such other addresses and fax numbers as a party may designate by notice to the
other parties):
Seller: Hampshire Investments, Limited - Hampshire Group, Limited
Special Committee of the Board of Directors
605 Park Avenue
Apartment 9D
New York, New York 10021
Attention: Irwin Winter
Facsimile: (212) 734-4045
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with a copy to: Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, N.Y. 10036
Attention: Malcolm I. Ross, Esq. and Scott L.
Kaufman, Esq.
Facsimile No.: (212) 479-6275
Buyer: Ludwig Kuttner, President
627/712 Plank Road
Keene, Virginia 22946
Facsimile No.: (434) 293-5721
with a copy to: Willkie Farr & Gallagher LLP
767 Seventh Avenue, 39th Floor
New York, New York 10019
Attention: Steven J. Gartner, Esq.
Facsimile No.: (212) 728-8111
5.5. GOVERNING LAW. This Agreement will be governed by the laws of the
State of New York without regard to conflicts of laws principles.
5.6. FURTHER ASSURANCES. The parties agree, to the extent commercially
reasonable, (a) to furnish upon request to each other such further information,
(b) to execute and deliver to each other such other documents, and (c) to do
such other acts and things, as may reasonably be requested for the purpose of
carrying out the intent of this Agreement and the transactions contemplated
hereby.
5.7. WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege.
5.8. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes a complete and exclusive statement of the terms of this Agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the parties.
5.9. ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Neither Seller nor
Buyer may assign any of its rights under this Agreement without the prior
consent of the other party. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement.
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5.10. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable through arbitration or otherwise, the other provisions of this
Agreement will remain in full force and effect. Any provision of this Agreement
held invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
5.11. SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
5.12. ARBITRATION. Any dispute or controversy arising under, out of, in
connection with, or in relation to this Agreement or any breach of this
Agreement shall be determined and settled by arbitration in New York, New York,
by a panel of three arbitrators in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect. Any award rendered
therein shall be final and binding upon the parties thereto, provided, however,
that each of the parties shall bear its own legal fees and expenses.
5.13. COUNTERPARTS. This Agreement may be executed via facsimile and in one
or more counterparts, each of which will be deemed to be an original copy of
this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
K HOLDINGS, LLC: HAMPSHIRE INVESTMENTS, LIMITED:
By: /s/ Ludwig Kuttner By: /s/ Susan C. Chu
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Name: Ludwig Kuttner Name: Susan C. Chu
Title: Managing Member Title: Vice President
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ANNEX A
Purchased Assets
1. Those certain apartments located at 33 West 67th Street, Apts. 4RE and 4RW,
New York, NY 10023.
2. That certain real property (known as the Terraces Building) located at
100-108 West Main Street, Charlottesville, VA 22902 (Tax Map 28, parcel
19).
3. That certain real property (known as the Terraces Building Parking Lot)
located adjacent to the Terraces Building.
4. 102.200 shares of the common stock of Bonton Music a.s., a corporation
incorporated under the laws of the Czech Republic.
5. 102.200 shares of the common stock of Bonton Pictures a.s., a corporation
incorporated under the laws of the Czech Republic.
6. 102.200 shares of the common stock of Bonton Book a.s., a corporation
incorporated under the laws of the Czech Republic.
7. 204.400 shares of the common stock of Bonton a.s., a corporation
incorporated under the laws of the Czech Republic.
8. 51.100 shares of the common stock of Bonton Discs a.s., a corporation
incorporated under the laws of the Czech Republic.
9. 102.200 shares of the common stock of Bonton Film Entertainment a.s., a
corporation incorporated under the laws of the Czech Republic.
10. 15,938 shares of Einbecker Brauhaus a.g., a corporation incorporated under
the laws of the Czech Republic.
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ANNEX B
Assumed Liabilities
1. Security deposits and prepaid rents in the amount of $89,288.00 related to
the Terraces Building.
2. All contractual obligations relating to the Purchased Assets.
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