Compromise and Settlement Agreement

8/6/2019 Compromise and Settlement Agreement

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COMPROMISE AND SETTLEMENT AGREEMENT

This Compromise And Settlement Agreement is made on thisBETWEEN:

A. WONG CHOO SWEE @ NG KONG SWEE (NRIC No.

2834936)of .................................... ............................................. (Wong Choo

Swee) of the first part;

AND

NG AIK SWEE HOLDINGS SDN BHD a company incorporated in Malaysia and

having its principal address at ............................................. (the NASHSB) of of the

second part.

[hereinafter collectively referred to as the Parties]

B. In the matter of the following:-

(i) Wong Choo Swee had agreed to transfer his share holdings of............shares

in XYYX Sdn Bhd (the said Shares) to NASHSB and NASHSB had agreed

to receive the said Shares in consideration of NASHSB transferring a property

known as ................................................................. in favour of XYYYX

Sdn Bhd ;

(ii) Wong Choo Swee had on ........... effectively transferred the said Shares to

NASHSB pursuant to the Agreement.;

(iii) However, NASHSB until to date did not transfer the Property in favour of

XYYX Sdn Bhd in breach of the Agreement.;

(iv) NASHSB hereby acknowledge that the Property is sold to a 3rd party and the

proceed of the sale has been received by NASHSB. NASHSB hereby acknowledge

that it is indebted to Wong Choo Swee to the par value of RM 1-00 per share of

the ............ of the said Shares


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C. NOW THE PARTIES AGREE as follows.

2. COMPROMISE AND TRANSFER

2.1 NASHSB hereby covenant, undertake and agree to transfer the said Shares in favour

of Wong Choo Swee (hereafter referred to as the Settlement ) in the following

manner and based upon the following terms and conditions as full and final settlement

and compromise of the matters hereinbeforementioned in Part B.

2.2 In consideration and upon completion of the Settlement above in accordance with the

terms and conditions hereinafter contained, Wong Choo Swee agrees to waive ,

forgo and relinquish his rights to claim, institute legal proceedings or any form of

claim against NASHSB as full and final settlement and compromise with regard to

the above mentioned maters hereinbeforementioned in Part B

4. Release of Documents

4.1 Within fourteen (14) Business Days from the date hereof, the Vendor shallcause the following documents to be lodged with Skrine, Unit No. 50-8-1, 8th

Floor, Wisma UOA Damansara, Jalan Dungun, Damansara Heights, 50490Kuala Lumpur (hereinafter referred to as "the Stakeholder") as stakeholder:-

(i) original share certificates in respect of the Sale Shares (hereinaftercollectively referred to as "the Share Certificates");

(ii) duly executed, valid and registrable transfers (FORM 32A) by theVendor in respect of the Sale Shares (hereinafter referred to as the"Transfers") board resolution of the Company approving the transferand registration of the Sale Shares to the Purchaser and/or itsnominee(s); and

(iii) letters of resignation of the only director nominated by the Vendor tothe Company and the Group Companies, namely Mr. Garfield StephenSamuel and confirming that he has no claim whatsoever against therespective companies;

[hereinafter collectively referred to as the "Documents"]

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4.2 The Vendor shall cause the Stakeholder to grant access to and permit thePurchaser to inspect the Documents forwarded by the Vendor to theStakeholder pursuant to clause 4.1 above at anytime after their lodgment.

4.3 The Stakeholder is hereby irrevocably authorized to release the Documents to

the Purchaser on the Completion Date.

4.4 In the event of any dispute arising between the parties hereto for whatsoeverreasons, the parties agree that the Stakeholder shall not be held liable in anyway and are hereby authorised to release the Documents held by it to theVendor without prejudice to any of the Purchasers right to take such action asmay be available to the Purchaser at law..

5. Conditional Agreement

5.1 The parties hereto expressly acknowledge and agree that the completion of

the sale and purchase of the Sale Shares is subject to and conditional uponthe fulfilment and or procurement of the following matters being satisfied:-

(ii) the delivery by the Vendor of its shareholders approval and/or othernecessary corporate authorisations, if so required, for the sale of theSale Shares pursuant and subject to the terms and conditions hereinstated;

((vii) the Vendor shall cause the rectification of the register and books of the

Pyxis Group Limited, specifically the undated share transfer formtransferring one (1) share in the capital of Pyxis Group Limited from theCovenantor to Dalton Technologies Inc and the related minutes ofresolution by the Covenantor as sole director dated 14/05/2002approving the said share transfer in accordance with the Purchasersdirections and to the satisfaction of the Purchaser;

(h) CallTime Solutions Ltd shall cause:-

1. a resolution of the Board of Directors of the company tobe duly passed to approve CallTime Solutions Ltd toenter into the deed of lease for the premises at 8Dundonald St, Newton, Auckland ("Auckland Deed ofLease"") and two (2) of its directors to sign the AucklandDeed of Lease;

2. two (2) authorised directors of CallTime Solutions Ltd tosign and date the Auckland Deed of Lease; and

3. the duly executed Auckland Deed of Lease to beforwarded to Youth for Christ New Zealand Inc.

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(p) Pyxis Australia Pty Ltd and/or CallTime Solutions Pty Ltd shallrectify all employment agreement(s) to the satisfaction of the

[hereinafter collectively referred to as the Conditions Precedent].

Provided Always that the Purchaser may at its sole and absolute discretionwaive the compliance or fulfilment of any Conditions Precedent for the purposesof completing this Agreement or permit for the Conditions Precedent to befulfilled or complied with after the Completion Date in which case such aCondition Precedent shall be regarded as a post completion term and obligationon the party whose responsibility it is to fulfil or procure the said ConditionPrecedent.

5.4 The Purchaser shall be entitled to deem and the Vendor shall represent andconfirm that all documentation submitted by the Vendor to the Purchaser insatisfaction of Clause 5.1(iii) herein shall be valid, final and conclusive withoutthe need for any further enquiry into the affairs of the Vendor.

5.5 Each party hereto covenant with the other to extend all such co-operation andassistance to the other party as is necessary or required by the other party inorder to timely secure the Conditions Precedent. Each party hereto shall keepthe other fully informed of the progress of the application to the Authorities(Applications) and shall inform the other in writing immediately when any ofthe Applications is obtained or refused, as the case may be and enclosecopies of the letters of approval or refusal as the case may be, for the perusaland record of the other party hereto.

5.6 The parties shall secure all the Conditions Precedent within four (4) weeksfrom the date hereof (hereinafter referred to as the Expiry Date) ProvidedAlways that the Expiry Date may be extended by the Purchaser at its sole andabsolute discretion from time to time in writing by the Purchaser to the Vendorto such later date as it shall deem expedient up to a period of two (2) months

from the date of this Agreement (hereinafter referred to as the ExtendedExpiry Date). Provided Further That any further extension of the ExtendedExpiry Date beyond the said two (2) months shall require the mutual consentof both parties hereto.

5.9 The date the last of the Conditions Precedent referred to in Clause 5.1 isfulfilled and or procured shall be known as the Effective Date.

6. Completion Date

6.1 This Agreement shall be completed within fourteen (14) days from the EffectiveDate [hereinafter referred to as the "Completion Date"]. The time, date and

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place of the Completion Date shall be determined by the Purchaser and notifiedto the Vendor with a minimum notice period of seven (7) Business Days.

6.2 On the Completion Date the following shall take place:-

(i) the Stakeholder shall release the Documents to Wong Choo Swee;

(ii) the Vendor shall deliver to the Purchaser a signed circular resolution ofthe Board of Directors of the Company and the Group Companieseffecting the following:-

10 Vendor and Covenantors Undertakings

10.1 As from the date of this Agreement until the Completion Date, the Covenantorshall procure the Vendor and the Vendor shall use its voting powers to the fullextent of its shareholdings in the Company to ensure that the Companymaintains and carries on its business in the ordinary and usual course andthat no material act or omission other than in such ordinary and usual courseof business be effected without the prior consent in writing of the Purchaser( which consent shall not be unreasonably withheld) and in particular butwithout prejudice to the generality of the foregoing, the Covenantor andVendor shall use their best endeavours to procure that from the date hereof toCompletion Date:-

(a) no resolution of the directors or members of the Company shall bepassed except in the ordinary course of business of the Company orpursuant to this Agreement and certified true copies of all resolutionspassed shall promptly be supplied to the Purchaser;

(b) the Company will not pay, declare or make any dividend or otherdistribution or agree to do so;

(c) no shares or debentures in the Company shall be issued, transferred

or approved other than pursuant to this Agreement and no options andrights or warrants shall be created in respect of any shares in theCompany;

(d) the business of the Company will continue to be carried on andmanaged in the same manner as at the present time and inaccordance with all regulations applicable to the Company or theVendor;

(e) the Company will not enter into any material contracts or incur anymaterial liabilities or obligations except in the ordinary course of its

business;

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(f) the Company will not enter into any long term or abnormal contract orcapital commitment;

(g) the Company will not do anything other than acts in the ordinarycourse of its business whereby its financial position shall be rendered

materially less favourable than at the date hereof;

(h) no alteration to the provisions of the Memorandum and Articles ofAssociation of the Company will be made;

(i) the Company will not make any changes to the remuneration orbenefits which are now payable to its directors or officers or any ofthem;

(j) the Company will not create, extend grant or permit any charges, liensor encumbrances to arise on any of its assets or shares except such

charges, liens or encumbrances arising in the ordinary course of busi-ness or by law;

(k) the Company will not enter into any contracts to dispose of anymaterial part of its fixed assets, except in the ordinary course of itsbusiness;

(l) the Company will not knowingly allow or permit any of its normalinsurance policies to lapse or to be void or voidable; and

(m) the Company will not do or permit to be done any act or grant anyaccommodation which might reasonably be considered to adverselyaffect the value of the Sale Shares or the decision of the Purchaser toacquire the Sale Shares.

10.2 The Vendor hereby undertakes to the Purchaser and the Company not to beengaged directly or indirectly in any activity in the territory of Malaysia,Australia, New Zealand, Thailand, Philippines, China, Taiwan, Korea, Vietnam,Laos, Cambodia, Singapore, Burma, Brunei, Indonesia, and India similar to thebusiness of the Company and the Group Companies for a period of twenty-four (24) months from the date of the completion of this Agreement. In this

regard, the Vendor shall execute all necessary letters of undertakings asdeemed necessary by the Purchaser.

10.3 The Covenantor hereby undertakes to the Purchaser and the Company not tobe engaged directly or indirectly in any activity in the territory of Malaysia,Australia, New Zealand, Thailand, Philippines, China, Taiwan, Korea, Vietnam,Laos, Cambodia, Singapore, Burma, Brunei, Indonesia, and India similar to thebusiness of the Company and the Group Companies for a period of twenty-four(24) months from the date of the completion of this Agreement. In this regard,the Vendor shall execute all necessary letters of undertakings as deemednecessary by the Purchaser.

10.4 The parties hereto agree that the restrictions in the above Clauses 10.2 and10.3 are considered to be reasonable in the circumstances and if any one or

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more of the restrictions shall either by itself or themselves together be adjudgedto be unreasonable for the protection of the Company and/or any of the GroupCompanies and would otherwise be adjudged reasonable only if any particularrestriction or restrictions were deleted, restricted or limited in a particularmanner then the restrictions shall apply with such deletions, restrictions or

limitations as the case may be.

10. 5 The Vendor and Covenantor hereby jointly and severally undertake with thePurchaser that it will hold the Purchaser fully indemnified from and againstany and all losses, liabilities, costs, claims, charges, actions, proceedings,damages, expenses and demands which the Purchaser may incur or whichmay be made against the Purchaser as a result of or arising out of or inrelation to:-

(i) any breach by the Vendor of any provisions of this Agreement; and

(ii) any suits, actions or proceedings which may be taken against the Company inrespect of any breach which occurred prior to the Completion Date.

10.6 The Vendor and Covenantor shall at all reasonable times permit or procurethat the Group Companies will allow the Purchaser, its servants and/or itsagents to inspect all records of the Group Companies at any office, branch orplace of business of the Group Companies or elsewhere and all records keptby any other persons save and except customers of the Group Companies inso far as such records relate to or affect the business of the GroupCompanies and for purposes of such inspection, give to the Purchaser andany of its servants and/or agents such written authorisations as may berequired by the Purchaser.

11. Effect Of Representations, Warranties and Undertakings

11.1 The representations and warranties set out in this Agreement shallnotwithstanding the completion of the sale and purchase herein remain in

force and effect.

11.2 In the event that any of the parties hereto become aware, on or before theCompletion Date, that the other party is in material breach of any of therepresentations, warranties and undertakings contained herein or any otherterm of this Agreement, the party not in breach (save for the Covenantor),may at its absolute discretion, terminate this Agreement forthwith by notice inwriting or proceed to completion but without prejudice to its right to claimdamages or any other rights or remedies whatsoever.

11.3 The amount of any claim for breach of the representations, warranties and

undertaking contained in this Agreement may (at the option of the Purchaseror Vendor, as the case may be) be determined as and be deemed to be:-

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(a) the amount of all loss, damage, liability and expense and/or theamount of any depletion or diminution in the value of any assets of theVendor or Purchaser in each case directly or indirectly suffered orincurred by the Vendor or Purchaser in connection with or in relation tosuch breach; or

(b) the amount of any decrease in the value of the Sale Shares as thecase may be, and of any other loss or damage directly or indirectlysuffered or incurred by the Vendor or Purchaser in consequence of orin relation to such breach.

12. Specific Performance

12.1 Subject to this Agreement becoming unconditional, any party hereto shall beentitled to the rights of specific performance against the other under theprovisions of this Agreement and it is hereby mutually agreed that in the event

of any party hereto exercising its right to specific performance of thisAgreement an alternative remedy of monetary compensation shall not beregarded as compensation or sufficient compensation for the other party'sdefault in the performance of the terms and conditions of this Agreement.

13 Indemnity by Vendor

13.1 Notwithstanding any provisions herein, the Vendor and the Covenantor herebyagree to indemnify the Purchaser and hold the Purchaser harmless from andagainst any damages, deficiencies, losses, costs, liabilities and expenses(including legal fees and disbursements) and in particular, but without prejudiceto the generality of the foregoing, from and against any depletion or diminutionof the assets of the Company and or the Group Companies, resulting directly orindirectly from or arising out of any breach of any of the representations,warranties, covenants and agreements made by the Vendor and theCovenantor herein.

14. Costs

14.1 Each party shall bear its own costs in relation to the preparation and executionof this Agreement and the Purchaser shall bear the costs of stamp duty payable

for the transfer of the Sale Shares.

15. Merger

15.1 As to any of the provisions of this Agreement remaining to be performed orcapable of having effect after the Completion Date, this Agreement shall remainin full force and effect notwithstanding completion of the sale and purchase ofthe Sale Shares.

16 Assignment

16.1 No party to this Agreement shall assign or purport to assign any of that partysrights under this Agreement without the prior written consent of the other party.

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17. Further Assurances

17.1 Each party agrees to do all such things and execute all such deeds,instruments, transfers or other documents as may be necessary or desirable togive full effect to the provisions of this Agreement and the transactions

contemplated by it.

18. Entire Agreement

18.1 This Agreement constitutes the entire agreement between the parties pertainingto this subject matter and supersedes all prior agreements and understandingsof the parties in connection with it.

19. Waiver19.1 No waiver or indulgence by any party to this Agreement shall be binding upon

the other unless in writing and in any event, no waiver of one breach of any term

or condition of this Agreement shall operate as a continuing waiver unless soexpressed nor operate as a waiver of another breach of the same or any otherterm or condition of this Agreement.

20. Notices20.1 Any notice or other document to be given hereunder shall be in writing.

20.2 Any notice sent in the manner prescribed in Clause 20.1 shall be deemed tohave been served as follows:-

(a) if sent by telex, facsimile transmission, it shall be deemed to bereceived on the day of the transmission if transmitted during normalbusiness hours of a Business day or in any other case on the nextsucceeding Business day provided that the relevant acknowledgement ofthe addressee shall have been received upon completion of thetransmission of the message;

(b) if sent by prepaid A.R Registered or certified post shall be deemed tohave been given seven (7) Business days after the same shall havebeen delivered to the postal authorities for delivery; or

(c) if delivered by hand during normal business hours (being the hours of9.00am to 5.00pm) on a Business day shall be deemed to have beenserved on the day, or in any other case of hand delivery shall bedeemed to have been given on the Business day following the date ofdelivery.

20.3 The address and facsimile number of each party for the service of any noticeshereunder are as follows:-

Vendor:Address: c/o Home Wilkinson Lowry

Home Wilkinson LowryLevel 21,570 Bourke St.Melbourne Vic 300

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Facsimile No: 613 8615 4300Attention: Mr W.J. Abbott

Purchaser:

Address: Level 11, Bangunan Bank Industri, 1016, Jalan SultanIsmail, 50250 Kuala Lumpur.

Facsimile No: 603 2698 3800Attention: Encik Nagib Gopal Abdullah

Covenantor:Address: c/o Home Wilkinson Lowry

Home Wilkinson LowryLevel 21,570 Bourke St.Melbourne Vic 300

Facsimile No: 613 8615 4300Attention: Mr W.J. Abbott

20.4 The service of any legal process (including but not limited to, any writ ofsummons, or other originating process of any third or other party notice) shall beserved by hand, PROVIDED THAT in respect of the Vendor and theCovenantor, the Vendor and the Covenantor hereby agree that the service oflegal process upon them in Malaysia may be effected by serving the same uponthe person appointed by the Vendor and the Covenantor jointly as the Vendorand the Covenantors agent for the purpose of receiving on Vendor and theCovenantors behalf service of legal process in Malaysia (hereinafter referred toas the Process Agent). For this purpose, the Vendor and the Covenantorhereby jointly appoints Skrine whose address for service shall be at Skrine, UnitNo. 50-8-1, 8th Floor, Wisma UOA Damansara, Jalan Dungun, DamansaraHeights, 50490 Kuala Lumpur as its process agent and the Vendor and theCovenantor hereby undertake to deliver to the Purchaser at the time ofexecution of this Agreement, a copy of a letter from the Process Agentconfirming the Process Agents acceptance of the appointment. No revocationof the appointment of the Process Agent shall be made unless the Vendor and

the Covenantor have appointed a new process agent and the particulars havebeen delivered to the Purchaser. Service of such legal process shall bedeemed to have been delivered in accordance with Clause 20.2.

21. Governing Law

21.1 This Agreement is governed by, and shall be construed in accordance with, thelaws of Malaysia and each party hereby irrevocably submits to the exclusivejurisdiction of the High Court of Malaya.

22. Severability

22.1 Each of the Clauses of this Agreement is severable from the others of suchclauses and if at any time any provision hereof is or becomes illegal, invalid or

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unenforceable in any respect the remaining provisions hereof shall in no way beaffected or impaired thereby.

23 Binding Effect of Agreement

23.1 This Agreement shall enure for the benefit of and bind the respectivesuccessors in title of the parties hereto.

24. Schedule

24.1 The Schedules annexed hereto constitute a part of the Agreement.

25. Counterparts

25.1 This Agreement may be executed in any number of counterparts or duplicateseach of which shall be an original, but such counterparts or duplicates shall

together constitute but one and the same agreement and shall come intoeffect on the date first hereinabove mentioned irrespective of the diversedates upon which the parties may have executed this Agreement.

26. Authentication

26.1 Any amendment or variation made upon any written copy of this Agreementand any copy or form of this Agreement including any page, provision orclause, may be authenticated or certified as being true, valid and correct, bythe signature or endorsement of the solicitor preparing this Agreement, or, ifmore than one solicitor, by the solicitors preparing this Agreement.

27. Amendment

27.1 No amendment, variation, revocation, cancellation, substitution or waiver of,or addition or supplement to, any of the provisions of this Agreement shall beeffective unless it is in writing and signed by all the parties hereto.

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1. COMMENCEMENT DATE

1.1 This Agreement shall come into force upon the date of this agreement.

2. PAYMENT AND SETTLEMENT

2.1 The 1st and 2nd Defendants hereby covenant, undertake and agree to pay a sum of

RM350,000-00 inclusive of interest and cost (hereafter referred to as the Settlement

Sum) to the Plaintiff in the following manner and based upon the following terms and

conditions as full and final settlement of the matters hereinbeforementioned in Part B.

This global settlement sum includes all outstanding costs awarded to the Plaintiff

arising from the suits hereinbeforementioned in Part B:

(a) that the 1st and 2nd Defendants pay the Plaintiff the Settlement Sum of

RM350,000-00 in ten (10) monthly installments;

(b) the 1st installment in the sum of RM71,000-00 payable on 31.5.2008;

(c) the nine (9) subsequent monthly installments shall be payable on the

28th of each month in the amount of RM31,000-00 each;

(d) All cheques in the above amounts to be handed to the Plaintiffs solicitors

on or before 20th of May 2008 together with the Agreement duly executed.

2.2 In the event for whatever reasons, the 1st and 2nd Defendants shall fail to make the

payments strictly in accordance to the provisions set out in paragraph 2.1, then the

Plaintiff is entitled to claim the entire Settlement Sum or any outstanding amount of the

Settlement Sum remaining unpaid immediately, wherein the Plaintiff shall also be

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entitled to claim for interest at 8% per annum on the Settlement sum or outstanding

unpaid balance calculated from 21.9.2004 until the date of full payment of all

outstanding amount. In the event that legal proceedings has to be commenced by the

Plaintiff against the 1st and 2nd Defendants to recover any and/or all outstanding

amount, it is hereby agreed by all parties that this Agreement and a letter signed by the

Plaintiffs Solicitors and confirmed in writing by the 1st and 2nd Defendants

solicitors upon the instructions of their respective clients, within fourteen (14)

working days from the date the 1st and 2nd Defendants solicitors received the letter

from the Plaintiffs solicitors, certifying the amount (or balance thereof) owing, shall be

conclusive proof of the outstanding (or balance) amount owing by the 1st and 2nd

Defendants to the Plaintiff. The 1st and 2nd Defendants solicitors shall be deemed to

have confirmed the Plaintiffs solicitors certification if the said solicitors failed to confirm

in writing within the time stipulated. The cost of all legal proceedings arising thereto

shall be borne by the 1st and 2nd Defendants.

2.3 In consideration of the 1st and 2nd Defendants agreeing to pay the Plaintiff the

Settlement Sum in the manner and at the times provided in paragraph 2.1 above, the

Plaintiff hereby irrevocably agrees, accepts and undertakes to withdraw the Suit No. 1

with no order as to costs upon the clearance of the 1st instalment cheque by the 1st and

2nd Defendants and the receipt of all the nine (9) subsequent monthly instalments

cheques by the Plaintiff or by the Plaintiffs solicitors.

2.4 In consideration of the 1st and 2nd Defendants agreeing to pay the Plaintiff the

Settlement Sum in the manner and at the times provided in paragraph 2.1 above, the

Plaintiff hereby irrevocably agrees, accepts and undertakes to remove or caused to be

removed any encumbrances on the Properties (including but not limited to any

caveats) if any which are attributable to the Plaintiff within 14 days from the payment of

the 1st instalment.

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D. TIME OF ESSENCE

Any time or period mentioned in this agreement shall be of the essence.

E. REVISION OF THIS AGREEMENT

Any modification, amendment or alteration of this Agreement shall be made only with

the written consent duly signed by all parties hereto and shall be effective from the

date of the revision.

F. RIGHTS UNDER THIS AGREEMENT

In amplification and not in derogation of Clause 2.2 herein, In the event of default in

any of the payments specified in Part C herein, the Plaintiff has full and irrevocable

rights to commence action to enforce this Compromise and Settlement Agreement

and sue on this Compromise and Settlement Agreement including but not limited to

suing on the cheques so issued by the Defendants to the exclusion of any of the

matters set out in Part B herein.

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IN WITNESS WHEREOF the parties hereto have hereunto set the hands on the day and

year first above written.

SIGNED by )

on behalf ofEmporium LP Sdn Bhd )

in the presence of solicitors for the Plaintiff ) 1. ________________________

Name of Director :

Nric No.:

2. ________________________

Name of Director :

NRIC No. :

SIGNED by )

Puan Esah @ Wan Rohani bt. Hj. Wan Zin )

(NRIC No.2834936) )

in the presence of solicitors for the Defendant )

SIGNED by )

on behalf ofLiga Warisan Sdn Bhd )

in the presence of solicitors for the Defendant ) 1. ______________________

Name of Director :

NRIC No. :

2. ______________________

Name of Director :

NRIC No.:

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