DEED OF COMPROMISE AND MUTUAL EXCHANGE OF SHARES AND PROPERTIES
This DEED made on this day of , ……
BETWEEN
……… (NRIC No. …..), ….. (NRIC No. ….) and ….. (NRIC No. …..) all of No. …… (hereinafter referred to as “First Party”) of the one part
AND
…………. (NRIC No. ………….) and ……… (NRIC No. …) both of (herereinafter referred to as “Second Party”) of the other part.
WHEREAS:
1. Both First Party and Second Party (hereinafter collectively referred to as the “Parties”) are joint registered and beneficial owners of immovable properties, details of which are as stated in the First Schedule herein (hereinafter referred to as “the Properties”), and are also common shareholders holding shares in several companies (hereinafter referred to as “the Companies”) registered in Malaysia and managed by the Parties (hereinafter referred to as “the Shares”), details of which are as stated in the Second Schedule herein.
2. The Parties have mutually agreed to resolve all present and past claims, disputes and differences in respect of the Properties and the control of the Companies by transferring to and exchanging with each other, their respective shares in the Companies and the Properties jointly held by the Parties so that the control of each the Companies and the registered and beneficial ownership of each of the Properties shall vest with any one of the Parties solely and absolutely in the manners hereinafter provided and upon the terms and subject to the conditions hereinafter contained.
NOW IT IS HEREBY AGREED THAT:-
1. In consideration of the mutual agreements, covenants and undertakings of the Parties hereto and in further consideration of the premises herein contained, the Parties hereto hereby irrevocably agree and undertake to transfer their respective shares and ownerships in the Companies and the Properties respectively to the other as follows:-
1) The First Party shall forthwith upon the execution of this Deed, transfer or procure the transfer of the following Properties in favour of Second Party or their nominees absolutely, free from encumbrance and with vacant possession but subject to all conditions, express or implied in the documents of title of the Properties, viz., :-
a) all that piece of industrial land held under P.T. (**), Lot No. .., Mukim and District of ……, State of …….;
b) all that piece of vacant land in …. held under HS(M) …, Lot No. .., Mukim and District of …, State of …;
c) all that unit of a corner shop in ………. held under Grant No. …, Lot No. Daerah …., ……….; and
d) all that unit of an intermediate shop in …., held under Grant No…., Lot No. …, Daerah ………….
2) The Second Party shall forthwith upon the execution of this Deed, transfer or procure the transfer of the following Properties in favour of First Party or their nominees absolutely, free from encumbrance and with vacant possession but subject to all conditions, express or implied in the documents of title of the Properties, viz., :-
a) all that piece of industrial land held under Lot No. …, Mukim and District of …, State of …. (Inclusive of machineries in ………. Sdn. Bhd.);
b) all that piece of industrial land held under Grant No. …, Lot No. .., Mukim and District of …, State of ……;
c) all that unit of a intermediate shop in …, held under Grant No. .., Lot …, Daerah ……; and
d) all that piece of land in …. held under HS(D) …, PT No. .., Daerah …..
3) The First Party shall also forthwith upon the execution of this Deed, transfer or procure the transfer of their respective ordinary shares in the following Companies in favour of Second Party or their nominees absolutely, free from all charges or liens or any other encumbrances and with all rights attaching thereto, viz., :-
1) ……….. Sdn. Bhd. (Company No. )
2) ………. Sdn. Bhd. (Company No. )
4) The Second Party shall also forthwith upon the execution of this Deed, transfer or procure the transfer of their respective ordinary shares in the following Companies in favour of First Party or their nominees absolutely, free from all charges or liens or any other encumbrances and with all rights attaching thereto, viz., :-
1) …………. Sdn. Bhd. (Company No. )
2) ………….. Sdn. Bhd. (Company No. )
3) ……………. Sdn. Bhd. (Company No. )
2. The Parties hereby mutually and irrevocably agree and covenant with each other that they shall jointly and severally guarantee undertake with each other that they shall indemnify the Company in respect of the transfer of their shares against any depletion of the assets of the Company resulting from:-
(a) any claim for payment by the Company of any taxation under any of the provisions of the Income Tax Act 1967 in respect of or consequent upon any transactions in securities effected at or before the date of this Deed hereunder;
(b) any amount already assessed or which may hereafter be assessed on the Company for any period ending on or before the day of ;
(c) any claim for income tax in respect of any dividend paid or any distribution or any loan made by the Company before the date of this Deed;
(d) any claim for income tax in respect of any interest annuity or annual payment or rent or royalty paid by the Company at any time prior to the date of this Deed;
(e) any claim for real property gains tax in respect of any disposal of any immovable property or assets by the Company before the date of this Deed.
3. The Parties hereby irrevocably agree covenant and undertake with each other that:
(i) they shall not institute or cause the institution of any disputes, legal or otherwise in respect of the transfer and exchange of the Shares and the Properties made pursuant to the agreement and provisions of this Deed.
(ii) upon the registration of the Properties in favour of the Parties respectively, each of the Parties shall NOT lay any further claims or demands whatsoever on or from the other party for any further claims interest title and/or share in the other party’s Properties and/or Shares.
(iii) the Parties have fully understood the contents and essence of this Deed and shall voluntarily and freely abide by all the necessary procedures to do, carry out and complete all their respective covenants agreements and undertakings hereby created to give full effect of the purposes and intent of this Deed.
(iv) to do execute and perform such acts, deeds, documents and things as the transferee of the Shares and/or Properties may require to effectively vest the registered and beneficial ownership of the Shares and/or Properties in the transferees and or their nominees.
(v) This Deed shall not include the other properties or shareholdings in companies not mentioned in this Deed.
(vi) This Deed shall not in any way influence or affect the distribution or exchange of the other properties or shareholdings in companies jointly owned by the Parties not mentioned in this Deed.
4. The Parties hereto hereby agree and undertake that they shall within the period prescribed by the Real Property Gains Tax Act 1979 [hereinafter called “the Act”] submit to the Director-General of Inland Revenue in the prescribed forms information relating to the transfers of the Shares and Properties.
5. It is hereby mutually and irrevocably agreed upon that all taxes payable including income and real property gains taxes arising out of and/or from the transfers of the Shares and Properties pursuant to this Deed shall be borne equally by …. (NRIC No. ……..), …. (NRIC No. …), …. (NRIC No. …..), and … (NRIC No. …) irrespective of their quantum of share in the Shares and Properties.
6. The stamp duty and all other costs including legal fees on the transfer of the Shares and Properties are to be borne by the transferees of the respective conveyances.
7. Time wherever mentioned is of the essence of this Deed.
8. This Deed shall be binding upon all their heirs, personal and/or legal representatives and assigns of the Parties.
9. Any terms, conditions, stipulations, provisions, covenants or undertakings contained herein which are illegal, void, prohibited or unenforceable shall be ineffective to the extent of such illegality, voidness, prohibition or unenforceability without invalidating the remaining provisions hereof and such illegality, voidness, prohibition or unenforceability shall not invalidate or render illegal, void or unenforceable any other terms, conditions, stipulations, provisions, covenants or undertakings contained herein.
10. Any notice or request referred to in this Deed which is required to be served upon the Parties hereto shall be in writing and shall be deemed to have been sufficiently served on or given to the respective Parties if left by hand or sent by prepaid registered post to the party to whom it is addressed at their respective addresses above stated or to their respective solicitors and shall be deemed to be served when it would in the ordinary course of post be received.
11. Knowledge or acquiescence by either party hereto of or in breach of any of the conditions or covenant herein contained shall not operate or be deemed to be waiver of such conditions or covenants or any of them and notwithstanding such knowledge or acquiescence each party hereto shall be entitled to exercise their respective rights under this Deed and to require strict performance by the other of the terms and conditions herein.
12. All previous, representations, warranties express or implied, oral or in writing or by conduct between the parties hereto are hereby superseded and are of no further effect. It is hereby declared and agreed that this Deed constitutes the whole and complete agreement between the Parties hereto in respect of matters dealt with herein and no variations shall be effective unless made by the Parties hereto in writing.
13. All stamp duty and other incidental costs including Solicitors’ fees in respect of this Deed shall be borne and paid by the Parties in equal share.
14. The Parties hereto shall do all acts and things within their power to procure the full and complete implementation of the provisions of this Deed.
15. In entering into this Deed, the Parties hereto recognise that it is impracticable to make provision for every contingency that may arise in the course of the performance hereof. Accordingly, the Parties hereto declare it to be their intention that this Agreement shall operate between them with fairness and without detriment to the interests of any of them and if, in the course of the performance of this Deed, unfairness to any party is disclosed or anticipated then the Parties hereto shall use their best endeavours to agree upon such action as may be necessary and equitable to remove the cause or causes of the same.
16. No announcement circular or other publicity relating to any matters referred to in this Deed shall be made or issued without the prior written consent of the other Party
17. In this Agreement, unless there is something in the subject or context inconsistent with such construction and unless it is expressly provided :-
(i) words importing the masculine gender shall be deemed and taken to include the feminine and neuter genders;
(ii) words in the singular number only include the plural number and vice-versa.
IN WITNESS WHEREOF the parties hereto have hereunto caused this Deed to be executed on the day and year first above written.
SIGNED by the First Party )
in the presence of:- )
………………………………..
……………………………….
……………………………….
SIGNED by the Second Party )
in the presence of:- )
…………………………………
………………………………….
