DATED 9 NOVEMBER 2022 BY AND AMONG REITAR LOGTECH HOLDINGS LIMITED KIN CHUNG CHAN (陳建中) AND HAU LIM CHUNG (鍾孝廉) SHARE TRANSFER AGREEMENT
Exhibit 10.5
DATED 9 NOVEMBER 2022
BY AND AMONG
REITAR LOGTECH HOLDINGS LIMITED
域塔物流科技控股有限公司
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (陳建中)
AND
▇▇▇ ▇▇▇ ▇▇▇▇▇ (鍾孝廉)
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Suites 1902-09, 19th Floor Edinburgh Tower, The Landmark ▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇.▇▇▇▇.▇▇▇▇
▇▇▇▇.▇▇▇▇.▇▇▇▇
THIS AGREEMENT is made on 9 November 2022
BY AND AMONG:
| (1) | REITAR LOGTECH HOLDINGS LIMITED 域塔物流科技控股有限公司 (Company Number: 394013), an exempted company incorporated under the laws of the Cayman Islands and having its registered office at Ogier Global (Cayman) Limited, ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇-▇▇▇▇, ▇▇▇▇▇▇ Islands (the “Purchaser”); |
| (2) | ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (陳建中) of Flat SA, 7/F., Block 2, Phase 3 Festival City, Tai Wai, Sha Tin, N.T., Hong Kong (“▇▇. ▇▇▇▇”); and |
| (3) | ▇▇▇ ▇▇▇ ▇▇▇▇▇ (鍾孝廉) of Flat F, 23/F, Block 7, Double Cove Grandview, ▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, Double Cove Phase 4, Ma On Shan, N.T., Hong Kong (“▇▇. ▇▇▇▇▇”). |
(collectively, the “Parties” and each, a “Party”)
WHEREAS:
| (I) | Reitar Capital Partners Limited (Company Number: 2036003) is a company incorporated in the British Virgin Islands (the “Company”). As at the date hereof, ▇▇. ▇▇▇▇ holds seventy-eight (78) ordinary shares of the Company and ▇▇. ▇▇▇▇▇ holds twenty-two (22) ordinary shares of the Company, collectively constituting the entire issued share capital of the Company (“the Sale Shares”). |
| (II) | ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ intend to sell and transfer to the Purchaser, and the Purchaser intends to purchase from ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇, the Sale Shares in accordance with the terms and conditions of this Agreement. |
NOW IT IS HEREBY AGREED as follows:
| 1. | DEFINITIONS |
In this Agreement, unless the context otherwise requires, the following terms shall have the following meanings:
| “BVI-D” | has the meaning ascribed to it in Clause 3.2 |
| “Company” | has the meaning ascribed to it in Recital (I) |
| “Completion” | completion of the transactions contemplated under this Agreement as provided in Clause 4 below; |
| “Completion Date” | the date of this Agreement or such later date as shall be agreed among the Parties hereto in writing |
| “Consideration Shares” | ordinary shares of the Purchaser of US$0.0001 par value each to be allotted and issued to Star Capital and BVI-D, respectively, in consideration of ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ selling and transferring the Sale Shares to the Purchaser |
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| “Encumbrances” | any mortgage, assignment of receivables, debenture, lien, charge, pledge, security interest, title retention, right to acquire, options, restriction on transfer and any other encumbrance or condition whatsoever and any other arrangement having substantially the same or similar economic effect over or in respect of the relevant asset, security or right of the use thereof |
| “Hong Kong” | Hong Kong Special Administrative Region of the People’s Republic of China |
| “Insolvency Proceedings” | proceedings under, or actions taken in connection with, any applicable insolvency, reorganisation or similar laws in any jurisdiction, including but not limited to petitions presented or meetings convened for winding up or actions taken in relation to the appointment of an administrator, liquidator, receiver, administrative receiver, special manager or any provisional liquidator (or their equivalent(s) in any jurisdiction) |
| “Sale Shares” | has the meaning ascribed to it in Recital (I) |
| “Star Capital” | has the meaning ascribed to it in Clause 3.1 |
| 2. | AGREEMENT TO SELL AND PURCHASE |
On and subject to the terms and conditions of this Agreement, ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇, as the legal and beneficial owners of the Sale Shares, shall sell and transfer to the Purchaser, and the Purchaser shall purchase from ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇, the Sale Shares, free from any Encumbrances and together with all rights, benefits and entitlements now and hereafter attaching thereto as at the Completion Date and thereafter.
| 3. | CONSIDERATION |
| 3.1 | In consideration for ▇▇. ▇▇▇▇ selling and transferring seventy-eight (78) ordinary shares of the Company to the Purchaser, the Purchaser shall allot and issue 7,800 Consideration Shares, free from any Encumbrances and together with all rights, benefits and entitlements now and hereafter attaching thereto as at the Completion Date and thereafter, to Star Capital Asset Management Limited (“Star Capital”), a company incorporated in the British Virgin Islands which is wholly owned and the allotee of the Consideration Shares designated by ▇▇. ▇▇▇▇. |
| 3.2 | In consideration for ▇▇. ▇▇▇▇▇ selling and transferring twenty-two (22) ordinary shares of the Company to the Purchaser, the Purchaser shall allot and issue 2,200 Consideration Shares, free from any Encumbrances and together with all rights, benefits and entitlements now and hereafter attaching thereto as at the Completion Date and thereafter, to Smart Logtech Holdings Limited (“BVI-D”), a company incorporated in the British Virgin Islands which is wholly owned and the allotee of the Consideration Shares designated by ▇▇. ▇▇▇▇▇. |
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| 4. | COMPLETION |
| 4.1 | Unless otherwise agreed, Completion shall take place on the Completion Date. |
| 4.2 | At Completion: |
| (a) | ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ shall deliver to the Purchaser: |
| (i) | a duly executed instrument of transfer by ▇▇. ▇▇▇▇ with respect to seventy-eight (78) ordinary shares of the Company in favour of the Purchaser; |
| (ii) | a duly executed instrument of transfer by ▇▇. ▇▇▇▇▇ with respect to twenty-two (22) ordinary shares of the Company in favour of the Purchaser; |
| (iii) | a duly executed consent to act as a director and chairman of the board of directors of the Purchaser by ▇▇. ▇▇▇▇; |
| (iv) | an application letter for 7,800 Consideration Shares from Star Capital to the Purchaser; |
| (v) | an application letter for 2,200 Consideration Shares from BVI-D to the Purchaser; and |
| (vi) | a copy of the board resolutions of the Company approving: |
| (1) | the entry of the name of the Purchaser into the register of members of the Company; |
| (2) | the issue of new share certificates to the Purchaser with respect to the Sale Shares; and |
| (3) | the cancellation of share certificates previously issued to ▇▇. ▇▇▇▇ and ▇▇. ▇▇▇▇▇ with respect to the Sale Shares. |
| (vii) | original copies of the new share certificates issued by the Company to the Purchaser with respect to the Sale Shares. |
| (b) | the Purchaser shall deliver to ▇▇. ▇▇▇▇: |
| (i) | a copy of the board resolutions of the Purchaser approving: |
| (1) | the execution and performance of this Agreement; |
| (2) | the allotment and issue of 7,800 Consideration Shares to Star Capital; |
| (3) | the entry of the name of Star Capital into the register of members of the Purchaser; and |
| (4) | the appointment of ▇▇. ▇▇▇▇ as a director and chairman of the board of directors of the Purchaser, and the entry of the name of ▇▇. ▇▇▇▇ into the register of directors and officers of the Purchaser. |
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| (c) | the Purchaser shall deliver to ▇▇. ▇▇▇▇▇: |
| (i) | a copy of the board resolutions of the Purchaser approving: |
| (1) | the execution and performance of this Agreement; |
| (2) | the allotment and issue of 2,200 Consideration Shares to BVI-D; and |
| (3) | the entry of the name of BVI-D into the register of members of the Purchaser. |
| 5. | REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS |
| 5.1 | ▇▇. ▇▇▇▇ hereby represents and warrants to each other Party: |
| (a) | ▇▇. ▇▇▇▇ has full power, authority and capacity to enter into this Agreement and to perform his obligations hereunder, and this Agreement will constitute valid and legally binding obligations on him; |
| (b) | the execution, delivery and performance of this Agreement by ▇▇. ▇▇▇▇ will not: |
| (i) | result in any breach of any provision of any agreement or arrangement to which he is a party or by which he is bound; and |
| (ii) | result in a breach of any order, judgment or decree of, or undertaking to, any court, government or statutory authority, agency or regulatory body or its equivalent (including, without limitation, any relevant stock exchange or securities commission) to which he is bound. |
| (c) | the execution, delivery and performance of this Agreement by ▇▇. ▇▇▇▇ does not require any material action, or consent or approval by, or any material filing with, any governmental body; |
| (d) | ▇▇. ▇▇▇▇ is, and will be on the Completion Date, the legal and beneficial owner of seventy-eight (78) ordinary shares of the Company, and, on the Completion Date, is and will be entitled to sell and transfer the full legal and beneficial ownership of the aforesaid ordinary shares of the Company in accordance with the terms of this Agreement, free from any Encumbrances and together with all rights, benefits and entitlements now and hereafter attaching thereto as at the Completion Date and thereafter; |
| (e) | no person has the right, whether exercisable now or in the future and whether contingent or not, to call for the sale or transfer of the seventy-eight (78) ordinary shares of the Company held by ▇▇. ▇▇▇▇ under any option or other agreement (including conversion rights and rights of pre-emption) and there are no Encumbrances and agreement or commitment to give or create any such Encumbrance on the aforesaid ordinary shares of the Company held by ▇▇. ▇▇▇▇; |
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| (f) | the Company is duly incorporated and validly existing under the laws of the British Virgin Islands and has full power, authority, and legal rights to own its assets and carry on its business; |
| (g) | the Company is not insolvent or bankrupt under the laws of its jurisdiction of incorporation, is not unable to pay its debts as they fall due, and has not proposed or is liable to any arrangement (whether by court process or otherwise) under which its creditors (if any) (or any group of them) would receive less than the amounts due to them, and there are no Insolvency Proceedings in respect of the Company and no events have occurred which would justify such Insolvency Proceedings being commenced; and |
| (h) | the Company is not engaged in any material litigation or arbitration proceedings, whether as plaintiff or defendant, and there are no proceedings, pending or threatened, either by or against the Company, nor are there any circumstances which are likely to give rise to any litigation or arbitration proceedings. |
(collectively, “▇▇ ▇▇▇▇’▇ Warranties”)
| 5.2 | ▇▇. ▇▇▇▇▇ hereby represents and warrants to the Purchaser: |
| (a) | ▇▇. ▇▇▇▇▇ has full power, authority and capacity to enter into this Agreement and to perform his obligations hereunder, and this Agreement will constitute valid and legally binding obligations on him; |
| (b) | the execution, delivery and performance of this Agreement by ▇▇. ▇▇▇▇▇ will not: |
| (i) | result in any breach of any provision of any agreement or arrangement to which he is a party or by which he is bound; and |
| (ii) | result in a breach of any order, judgment or decree of, or undertaking to, any court, government or statutory authority, agency or regulatory body or its equivalent (including, without limitation, any relevant stock exchange or securities commission) to which he is bound. |
| (c) | the execution, delivery and performance of this Agreement by ▇▇. ▇▇▇▇▇ does not require any material action, or consent or approval by, or any material filing with, any governmental body; |
| (d) | ▇▇. ▇▇▇▇▇ is, and will be on the Completion Date, the legal and beneficial owner of twenty-two (22) ordinary shares of the Company, and, on the Completion Date, is and will be legally and beneficially entitled to sell and transfer the full legal and beneficial ownership of the aforesaid ordinary shares of the Company in accordance with the terms of this Agreement, free from any Encumbrances and together with all rights, benefits and entitlements now and hereafter attaching thereto as at the Completion Date and thereafter; |
| (e) | no person has the right, whether exercisable now or in the future and whether contingent or not, to call for the sale or transfer of the twenty-two (22) ordinary shares of the Company held by ▇▇. ▇▇▇▇▇ under any option or other agreement (including conversion rights and rights of pre-emption) and there are no Encumbrances and agreement or commitment to give or create any such Encumbrance on the aforesaid ordinary shares of the Company held by ▇▇. ▇▇▇▇▇; |
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| (f) | the Company is duly incorporated and validly existing under the laws of the British Virgin Islands and has full power, authority, and legal rights to own its assets and carry on its business; |
| (g) | the Company is not insolvent or bankrupt under the laws of its jurisdiction of incorporation, is not unable to pay its debts as they fall due, and has not proposed or is liable to any arrangement (whether by court process or otherwise) under which its creditors (if any) (or any group of them) would receive less than the amounts due to them, and there are no Insolvency Proceedings in respect of the Company and no events have occurred which would justify such Insolvency Proceedings being commenced; and |
| (h) | the Company is not engaged in any material litigation or arbitration proceedings, whether as plaintiff or defendant, and there are no proceedings, pending or threatened, either by or against the Company, nor are there any circumstances which are likely to give rise to any litigation or arbitration proceedings. |
(collectively, “▇▇ ▇▇▇▇▇’▇ Warranties”)
| 5.3 | The Purchaser hereby represents and warrants to the Sellers: |
| (a) | the Purchaser is duly incorporated and validly existing under the laws of the Cayman Islands and has full power, authority and legal rights to own its assets and carry on its business; |
| (b) | the Purchaser has full power, authority and capacity to enter into this Agreement and to perform its obligations hereunder, and this Agreement will constitute valid and legally binding obligations on it; |
| (c) | the execution, delivery and performance of this Agreement by the Purchaser will not: |
| (i) | result in any breach of any provision of its constitutional documents or of any agreement or arrangement to which it is a party or by which it is bound; or |
| (ii) | result in a breach of any order, judgment or decree of, or undertaking to, any court, government or statutory authority, agency or regulatory body or its equivalent (including, without limitation, any relevant stock exchange or securities commission) to which it is bound; and |
| (d) | the execution, delivery and performance of this Agreement by the Purchaser does not require any material action, or consent or approval by, or any material filing with, any governmental body. |
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(collectively, the “Purchaser’s Warranties”)
| 5.4 | ▇▇. ▇▇▇▇’▇ Warranties, ▇▇. ▇▇▇▇▇’▇ Warranties, and the Purchaser’s Warranties are given at the date hereof and shall be deemed to be repeated immediately before and at Completion with reference to the facts and circumstances subsisting at that time. |
| 5.5 | ▇▇. ▇▇▇▇’▇ Warranties, ▇▇. ▇▇▇▇▇’▇ Warranties, and the Purchaser’s Warranties shall be separate and independent, and shall not be limited by reference to any other provision of this Agreement. |
| 5.6 | Each Party acknowledges and accepts that they have entered into this Agreement in reliance upon ▇▇. ▇▇▇▇’▇ Warranties, ▇▇. ▇▇▇▇▇’▇ Warranties and/or the Purchaser’s Warranties (as the case may be). |
| 6. | NOTICES |
All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post addressed to the intended recipient thereof or by electronic mail at its address or electronic mail address set out below (or to such other address or electronic mail address as any Party may notify the other Parties from time to time):
| The Purchaser | ||
| Address: | c/o ▇▇▇▇ ▇▇▇, ▇/▇, ▇▇▇▇▇ ▇, The Quayside, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ | |
| Email: | ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇ | |
| Attention: | ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ | |
| ▇▇. ▇▇▇▇ | ||
| Address: | Flat SA, ▇/▇., ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇ | |
| Email: | ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇ | |
| Attention: | ▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ | |
| ▇▇. ▇▇▇▇▇ | ||
| Address: | Flat F, 23/F, Block 7, Double Cove Grandview, ▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇ ▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇ | |
| Email: | ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇ | |
| Attention: | ▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇ |
| 7. | SURVIVAL OF AGREEMENT |
This Agreement shall, insofar as the terms hereof remain to be performed or are capable of subsisting, remain and continue in full force and effect after and notwithstanding Completion except in respect of those matters already performed.
| 8. | COSTS AND EXPENSES |
Each Party shall bear its own costs and expenses (including legal costs) incurred by it in connection with this Agreement and the transactions contemplated thereby.
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| 9. | GOVERNING LAW AND JURISDICTION |
| 9.1 | This Agreement and all matters arising from or connected with it shall be governed by, and construed in accordance with, the laws of the British Virgin Islands. |
| 9.2 | Any and all disputes, controversies or conflicts arising from or in relation to this Agreement, including disputes on its validity, conclusion, binding effect, breach, amendment, expiration and termination shall, as far as possible, be settled amicably by the Parties. If any such dispute is not settled amicably within the thirty (30) days as from the date any Party informs the other Parties that any dispute has arisen, the Parties agree to irrevocably submit to the non-exclusive jurisdiction of the courts of the British Virgin Islands. |
| 10. | GENERAL |
| 10.1 | Entire Agreement |
The terms and provisions contained in this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes and terminates all previous undertakings, representations and agreements, both oral and written, between the Parties with respect to the subject matter hereof.
| 10.2 | Variation |
No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each Party.
| 10.3 | Partial Invalidity |
The illegality, invalidity or unenforceability of any provision of this Agreement under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction nor the legality, validity or enforceability of any other provision.
| 10.4 | Remedies and Waivers |
| (a) | Except where expressly provided to the contrary, the rights and remedies reserved to the Parties, or any of them under any provision of this Agreement or in any document to be executed pursuant hereto, shall be in addition and without prejudice to any other rights or remedies available to such Parties, whether under this Agreement or any such document by statute, common law or otherwise. |
| (b) | The failure by any Party at any time to exercise any right or to require performance by any other Party or to claim a breach of any term of this Agreement shall not be deemed to be a waiver of such or any other rights or remedies available to it. The Completion shall not constitute a waiver by any of the Parties of their respective rights in relation to any breach of any provision of this Agreement whether or not known to it at the Completion Date. |
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| 10.5 | Time is of the Essence |
Any time or period mentioned in any provision of this Agreement may be extended by mutual agreement between the Parties but as regards any time, date or period originally fixed or any time, date or period so extended as aforesaid, time shall be of the essence.
| 10.6 | Further Assurance |
The Parties shall do and execute, or procure to be done and executed, all such further acts, deeds, things and documents as may be necessary to give effect to the terms of this Agreement.
| 10.7 | Execution in Counterparts |
This Agreement may be executed in any number of counterparts, each of which when so signed and delievered shall be deemed to be an original, and all of which shall together constitute one and the same instrument and shall be binding on the Parties as if they had executed this Agreement in a single document.
| 10.8 | Rights and Obligations Several |
Save as otherwise provided in this Agreement, the rights and obligations of each Party herein shall be several and the failure of a Party to perform its obligations under this Agreement shall not result in any other Party incurring any liability whatsoever or relieve any other Party from its obligations under this Agreement.
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IN WITNESS WHEREOF the Parties hereto have duly executed this Agreement as of the day and year first before written.
| SIGNED by ▇▇▇ ▇▇▇ ▇▇▇▇▇ | ) | /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇ |
| ) | ||
| for and on behalf of | ) | |
| REITAR LOGTECH HOLDINGS LIMITED | ) | |
| 域塔物流科技控股有限公司 | ) | |
| in the presence of: | ) | /s/ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ |
| ) | ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ | |
| SIGNED by ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (陳建中) | ) | /s/ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ |
| ) | ||
| ) | ||
| in the presence of: | ) | /s/ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ |
| ) | ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ | |
| ) | ||
| ) | ||
| SIGNED by ▇▇▇ ▇▇▇ ▇▇▇▇▇ (▇▇▇) | ) | /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇ |
| ) | ||
| ) | ||
| in the presence of: | ) | /s/ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ |
| ) | ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ | |
| ) | ||
| ) |
[Signature page to the Share Transfer Agreement (Acquisition of Reitar Capital)]