Tune Group Sdn Bhd v 1. ) TUNE TALK SDN BHD (WA-24NCC-2-01/2023)

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Schedule 3 of the SHA on the directors’ and shareholders’ reserved matters; (c) Clause 7.3 of the SHA on the appointment of company secretary; and (d) Clause 6A of the SHA on the rights of the Board pertaining to the performance of CEO. [37] Each of the matters complained of by Tune Group amounts to a “controversy, claim or dispute arising out of or in relation to [the SHA]” which ought to be resolved in accordance with Clause 16.1 of the SHA. Accordingly, the proceedings herein must therefore be stayed for the disputes against the parties concerned to be referred to arbitration. [38] Counsel for all parties are in agreement that a dispute relating to minority oppression or unfair prejudice arising from the SHA is not one that is of a nature which makes it contrary to public policy to be adjudicated by an arbitral tribunal. In this regard, the Singapore’s Court of Appeal judgment in Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57 (“Tomolugen Holdings”) was cited in support where in relation to a provision in section 216 of the Singapore Companies Act that is in pari materia with Section 346 CA 2016, Sundaresh Menon CJ held that: [84] In our judgment, a claim for relief under s 216 of the Companies Act stands on a different footing from the liquidation of an insolvent company or avoidance claims that arise upon insolvency because the former generally does not engage the public policy considerations involved in the latter two situations. There is certainly nothing in the text of s 216 to suggest an express or implied preclusion of arbitration. Nor does the legislative history and statutory purpose of the provision suggest that a dispute over minority oppression or unfair prejudice is of a nature which makes it contrary to public policy for the dispute to be adjudicated by an arbitral tribunal. … [88] … Section 216 is concerned with protecting the commercial expectations of the parties to such an association. It seems to us that if those persons choose to have their differences resolved by an arbitral tribunal, they should be entitled to do so. There is, in general, no public element in disputes of this nature which mandate the conclusion that it would be contrary to public policy for them to be determined by an arbitral tribunal rather than by a court. … [90] We are fortified in this conclusion by the decision of the English Court of Appeal in Fulham FC v Richards, where it held that a dispute giving rise to a claim for relief under s 994 of the Companies Act 2006 (UK) (‘the UK Companies Act 2006’) was arbitrable. … [94] Disputes over oppressive or unfairly prejudicial conduct towards minority shareholders have also been held to be arbitrable in: (a) New South Wales and Victoria in Australia (see, respectively, ACD Tridon v Tridon Australia [2002] NSWSC 896 and Brazis v Rosati [2014] VSC 385 (‘Re Form 700’)); (b) the British Virgin Islands (see Ennio Zanotti v Interlog Finance Corp (8 February 2010, Claim No BVIHCV 2009/0394, unreported)); and (c) British Columbia in Canada (see ABOP LLC v Qtrade Canada Inc (2007) 284 DLR (4th) 171). In fact, our attention was not drawn to any jurisdiction which regarded such a dispute as non-arbitrable. [39] The Applicants for the Stay Applications therefore contended that Section 10(1) AA 2005 requires any action in Court in respect of a dispute falling within the scope of an arbitration agreement between the plaintiff and one or more of the defendants to be stayed in favour of arbitration unless: (a) the exceptions in section 10(1) itself apply, or (b) the subject matter of the dispute is incapable of being determined by arbitration within the meaning of section 4(1) of the AA. [40] In this case, it is contended that neither of the aforesaid exceptions are applicable and since all the conditions required under Section 10(1) of the AA 2005 are satisfied i.e (a) that there is in existence an arbitration agreement between the parties; (b) that the party applying for stay has not taken any other steps in the proceedings; and (c) that the agreement is not null and void, inoperative or incapable of being performed, a mandatory stay is warranted. [41] For completeness, in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417, the Federal Court held: “[32] The clear effect of the present s 10(1) of the 2005 Act is to render a stay mandatory if the court finds that all the relevant requirements have been fulfilled; while under s 6 of the repealed 1952 Act, the court had a discretion whether to order a stay or otherwise. [33] What the court needs to consider in determining whether to grant a stay order under the present s 10(1) (after the 2011 Amendment) is whether there is in existence a binding arbitration agreement or clause between the parties, which agreement is not null and void, inoperative or incapable of being performed. The court is no longer required to delve into the details of the dispute or difference (see TNB Fuel Services Sdn Bhd). In fact the question as to whether there is a dispute in existence or not is no longer a requirement to be considered in granting a stay under s 10(1). It is an issue to be decided by the arbitral tribunal.” [emphasis added] [42] As regards the Striking Out Applications: (a) Axiata Group and Digi contended that the OS discloses no reasonable cause of action against them for the following reasons: (i) Axiata Group and Digi are neither a shareholder of Tune Talk nor a party and or privy to the SHA; (ii) Axiata Group and Digi have no control over the affairs of Tune Talk and or the Celcom Mobile Tune Talk Shares; (iii) Axiata Group owes no duty towards Tune Group to disclose any Alleged Private Settlement Discussions on Arbitration No.3 and OS No. 41; (iv) Digi is not a party to Arbitration No.3 and OS No. 41 and was not aware and not a party to the Alleged Private Settlement Discussions; (v) The allegations on intention to dispose of the Celcom Mobile Tune Talk Shares is speculative and without basis; (vi) Tune Group’s action herein is premature as there is no disposition of the Celcom Mobile Tune Talk Shares at this juncture; (vii) The OS is scandalous, frivolous or vexatious and designed to embarrass Axiata Group as the Tune Talk Carve-Out has been disclosed to Tune Group and other shareholders of Tune Talk; (viii) The OS is an abuse of Court process as it is a fishing expedition on the part of Tune Group to uncover the particulars of the Alleged Private Settlement Discussions. (b) Idham and Erik contended that the OS discloses no reasonable cause of action and is frivolous and vexatious for the following reasons: (i) The only relief sought by Tune Group against them is for disclosures of the Alleged Private Settlement Discussions between the Celcom Bloc and the Gurtaj Group. In this regard, Tune Group has sought similar disclosures from the Celcom Bloc and Gurtaj Group themselves. This renders the action against Idham and Erik redundant; (ii) There is no plea that Idham and Erik had acted in any way resulting in oppression against Tune Group nor is there any plea that they are so connected to the alleged oppressive and or prejudicial conduct that it would be fair and just to warrant imposing liability against them as nominee directors. [43] As alluded to above, Tune Group is not disputing that disputes relating to minority oppression or unfair prejudice among the shareholders to the SHA can come within Clause 16.1 of the SHA and thus capable of being adjudicated by an arbitral tribunal. In other words, there is no dispute as regards the arbitrability of the oppression claims in the OS. [44] Tune Group is also not disputing that if the subject matter of the OS involves “controversy, claim or dispute arises out of or in relation” to the SHA, the OS ought to be stayed for the parties to refer the matters to arbitration. Put it in another way, Tune Group agrees that if the oppression claims come within the scope of the arbitration agreement, the OS ought to be stayed. In this regard, it is Tune Group’s position that the matters in the OS in fact and in law falls outside the scope of Clause 16.1. [45] Tune Group relied on Section 10(1) of the AA 2005 which stipulates that a stay of civil proceedings will be mandatory where such “proceedings are brought in respect of a matter which is the subject of an arbitration agreement” and contended that the matters raised in the OS relied upon to mount a claim for the oppression claims do not come within the subject of the arbitration agreement in Clause 16.1 of the SHA. [46] What Tune Group is asserting in the OS as grounds for its oppression claims under Section 346 of the CA 2016 is that arising from the Alleged Private Settlement Discussions, there is a ‘re-aligned majority’ among some of the shareholders and this ‘re-aligned majority’ has acted in complete disregard of the interest and legitimate expectation of Tune Group as a shareholder of Tune Talk. Tune Group has also sought to rely on the Subsequent Events as further support for the ‘re-aligned majority’. [47] According to learned counsel for Tune Group, this ‘re-aligned majority’ arrangement amounts to an agreement that falls outside of the existing SHA and thus not subject to the said arbitration clause thereto. [48] With regards to the Striking Out Applications, the only contention by Tune Group is that these non-parties have “put into play an arrangement to sidestep the said Shareholders’ Agreement” without specifying any details thereto. [49] It is on the determination of these issues that the Stay Applications and the Striking Out Applications will rest. Court’s Deliberations The Stay Applications [50] Following Tomolugen Holdings, the approach to take in considering whether the disputes in the OS pertains to a “matter” that is subject to the arbitration agreement involves two sub-questions: (a) the court “must first determine what the matter or matters are” in the oppression claim. The Court in construing the “matter” should not do so “in either an overtly broad or an unduly narrow way”. The Court should identify the “substance of the controversy”; and (b) the court “must then ascertain whether the matter(s) fall within the scope of the arbitration clause on its true construction”; [51] In the present case, the ‘substance of the controversy’ as I see it amounts to this: (a) The Celcom Digi Merger Exercise involved the sale of the Celcom Axiata Shares to a newly emerged entity jointly owned by Axiata Group and Digi; (b) Gurtaj had objected to the sale on the ground that the same, which results in Digi, a competitor of Tune Talk, indirectly in control of the Celcom Mobile Tune Talk Shares, is a breach of the terms of the SHA. This led to the Arbitration No. 3 and the OS No. 41; (c) The Celcom Bloc then entered into the Alleged Private Settlement Discussions with Gurtaj which resulted in the termination of the legal proceedings in the Arbitration No. 3 and the OS No. 41; (d) Tune Group, not being privy to the Alleged Private Settlement Discussions, claimed that a new re-aligned majority is formed from the said settlement discussions and wish to known the status of the Celcom Mobile Tune Talk Shares and or the Celcom Axiata Shares; (e) Tune Group, relying on announcements made by the Celcom Bloc and the Subsequent Events, claimed that the re-aligned majority has acted in a manner oppressive to Tune Group or in disregard of its interests as shareholders of Tune Talk or otherwise prejudicial to its interests; (f) Tune Group claimed that the complaints aforesaid falls outside of the SHA as they are matters arising from an understanding reached from the Alleged Private Settlement Discussions and not the SHA and it is these matters that have given rise to its oppressive action against the Defendants in the OS. [52] It must be noted that when Axiata Group entered into the Celcom Digi Merger Exercise which involved the sale of the Celcom Axiata Shares to Digi, Tune Group did not raise any objection to the same but was content to stay out of the legal disputes between Gurtaj and the Celcom Bloc. This remains so even after the Arbitration No. 3 and the OS No. 41 were terminated. Being a shareholder and a party to the SHA, Tune Group was equally entitled to take the same objection that Gurtaj had taken in OS No. 41 and the Arbitration No. 3. [53] Returning to the substance of the controversy in the OS, the analysis must begin with the premise that it is not uncommon for shareholders in a company to align themselves towards a common objective on the affairs of the company. In forming such an alliance, other shareholders not privy to the same have no legal right to seek disclosures of the arrangement reached by the aligned parties. [54] It is also not uncommon for shareholders in a company to come to an agreement by way of shareholders’ agreement to regulate their relationship as shareholders of the company and to govern the affairs of and their dealings with the company. [55] Where the arrangement reached by aligned shareholders either directly or indirectly, results in the breach or breaches of the obligations under the shareholders’ agreement, the innocent shareholders are entitled to protect their interests in reliance on the terms of the shareholders’ agreement. Thus, the arrangement of the aligned shareholders which ordinarily would not be subject to scrutiny from the other shareholders, may, in such a case give rise to obligations enforceable against the aligned shareholders. [56] In this case, Tune Group is asserting that its rights to seek the disclosures of the arrangement reached under the Alleged Private Settlement Discussions, in particular on the re-aligned majority and to seek reliefs against the Subsequent Events, do not arise from the SHA or are not matters governed by the SHA but under Section 346 of the CA 2016. [57] With respect, I do not agree. I find Tune Group’s contention that this Court should adopt a closeted view of the matters in the oppression claims in the OS as being a subject matter that is independent and capable of being divorced from the SHA to be untenable. [58] As stated, in order for Tune Group to complain of the ‘re-aligned majority’, such a right, if at all, must necessarily be premised upon some existing obligations that the re-aligned shareholders of Tune Talk purportedly owed to Tune Group as to how the affairs of Tune Talk ought to be conducted under the terms of the SHA. Independent of the SHA, Tune Group does not have any such rights at all. [59] Section 346 of the CA 2016 does not confer such rights of disclosures to Tune Group. The said section deals with the circumstances where the majority shareholders’ actions (as opposed to an agreement to align) result in a disregard or prejudice to the minority interest. Where there is a shareholders’ agreement that the parties have agreed to be the foundation and basis for regulating their respective conduct and the affairs of the company, the claims for oppressive conduct under Section 346, if any, would be matters that come within the subject matter of the said agreement. [60] Whether Tune Group’s complaints constitute mere breaches of the SHA or whether such breaches under the SHA may also give rise to a right under Section 346 of the CA 2016 [See: Dato’ Gue See Sew & Ors v. Heng Tang Hai & Ors [2020] MLRHU 202] is a matter that the parties have by agreement provided for determination by the arbitral tribunal. In other words, Tune Group has not shown that the complaints in the OS are matters falling outside of the subject matters stipulated in the SHA. [61] The Alleged Private Settlement Discussions as framed by Tune Group deals with either a disposition of the Celcom Mobile Tune Talk Shares, the Celcom Axiata Shares or the exercise of voting power by the Celcom Bloc or the Gurtaj Group, culminating in an alleged re-alignment of the majority in Tune Talk. These are in fact issues governed by the SHA. [62] More specifically, Clauses 10.1(j) deals with a transfer of shares or other interests of a shareholder which would result in a change in control of a shareholder. Any allegation of realignment has to start from here and does not arise in isolation outside the SHA. Further, Clause 14.1(b) relates to the obligation of the shareholders of Tune Talk to cooperate in good faith to give full effect to the provisions and intents of the SHA. This again provides the framework for performance of the parties’ obligations in relation to any alleged re-alignment. [63] In fact, just looking at the reliefs sought by Tune Group in the OS, in particular, the declaration sought on the actual status of the shareholding interest had by Celcom Mobile in Tune Talk in the run up to the time of the completion of the subject merger exercise and the further prayer for an order requiring the parties (save for Tune Talk and Jason Lo) to give full and frank disclosures of all and every aspect of any private settlement or agreement, including all and any intentions, of whatever nature, relating to any disposal and or acquisition of the registered shareholding of Celcom Mobile in Tune Talk, it is plain to see that Tune Group can only be seeking such reliefs in reliance of its rights under the SHA. [64] I agree with the submission by learned counsel for Celcom Axiata and Celcom Mobile that the alleged acts of oppression in truth concern the relationship of the shareholders as well as the affairs of Tune Talk, all of which are governed by the terms of the SHA, including inter alia: (a) Recital C of the SHA where parties agreed to rely on the SHA to regulate their relationship as shareholders and the affairs of and their dealings with Tune Talk; (b) Clause 9 of the SHA on the pre-emptive provisions for transfer of shares; and (c) Clause 14.1 of the SHA where parties agreed to cooperate in good faith and take such other action as may be reasonably required to give full effect to the provisions and intent of the [65] Similarly, the Subsequent Events are also clearly matters which concern the rights of shareholders and affairs of Tune Talk, which are governed by the SHA, inter alia: (a) Clause 6.3 of the SHA on the rights of shareholders pertaining to circular resolution; (b)

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Schedule 3 of the SHA on the directors’ and shareholders’ reserved matters; (c) Clause 7.3 of the SHA on the appointment of company secretary; and (d) Clause 6A of the SHA on the rights of the Board pertaining to the performance of Chief Executive Officer. [66] Essentially, Tune Group is complaining that it has been kept in the dark as regards the Alleged Private Settlement Discussions between the Celcom Bloc and the Gurtaj Group. This, however is a matter between the two parties and if Tune Group is aggrieved, it must be on the basis that the Alleged Private Settlement Discussions have in some form breached the obligations by the parties to Tune Group under the SHA. The Alleged Private Settlement Discussions between the Celcom Bloc and the Gurtaj Group being a transaction between the two parties, in the ordinary course, can have no bearing on Tune Group and the claims by Tune Group for discovery of the terms of the Alleged Private Settlement Discussions, if at all, can only be in reliance on the SHA. Indeed, Tune Group has not been able to point to any other source in asserting the claims. [67] Accordingly, it is my judgment that the matters complained of by Tune Group in the OS amount to a “controversy, claim or dispute arising out of or in relation to [the SHA]” which ought to be referred and resolved in an arbitration in accordance with Clause 16.1 of the [68] The proceedings herein must therefore be stayed given that all the conditions stipulated in section 10(1) of the AA 2005 have been satisfied. The Striking Out Applications [69] As regards the Striking Out Applications, Tune Group has premised its claims against Axiata Group, Digi, Idham and Erik on the Alleged Private Settlement Discussions and the Subsequent Events. [70] As a start, there is no express averments that Idham and Erik were involved in the Alleged Private Settlement Discussions. The thrust of Tune Group’s case is that the Alleged Private Settlement Discussions have given rise to a ‘re-aligned majority’ and this re- ‘aligned majority’ has acted in complete disregard of its interest and legitimate expectation. [71] However, apart from making the claims, Tune Group has not identified the acts or for that matters omissions, if any, perpetrated by the ‘re-aligned majority’ which amounts to ‘complete disregard of the interest and legitimate expectations’ of Tune Group. More specifically, Tune Group has not even identified who are parties to the ‘re-aligned majority’. Further, ‘majority’ in this case must necessarily mean majority shareholders of Tune Talk. In this connection, neither Digi nor Axiata Group are shareholders of Tune Talk. [72] Tune Group has also failed to demonstrate how its interest as a shareholder of Tune Talk has been prejudiced and if so, how Axiata Group and or Digi has played any role at all in prejudicing its interests as a shareholder. [73] The fact that Axiata Group and Digi were involved in the Celcom Digi Merger Exercise and the fact that the disputes between Gurtaj and the Axiata Group relating to the propriety or otherwise of the Celcom Digi Merger Exercise via-a-vis the SHA in Arbitration No. 3 and OS No. 41 have been settled between the parties thereto cannot, without more, form a cause of action for oppression under Section 346 of the CA 2016. [74] Significantly, Tune Group can avail itself of the provisions under the SHA if it is of the view that the proposed transfer of Celcom Axiata Shares to Digi via the Axiata Group’s sale of the same to Digi is a breach of the SHA (as was the case with Gurtaj). There is nothing to restrain Tune Group from commencing such a claim and seeking discovery from Celcom Mobile or even Celcom Axiata on the status of Celcom Axiata Shares and or the Celcom Mobile Tune Talk Shares. [75] Without making a claim for breach of the SHA but instead seeking to launch a claim for oppression, the prayers for discovery of the terms of the Alleged Private Settlement Discussions under the guise of a claim for oppression tantamount to a clear fishing expedition. As I have alluded to above, Section 346 of the CA 2016 does not create such a right to Tune Group. [76] Similarly, Tune Group has not demonstrated any cause of action for oppression against Idham and Erik at all. Quite apart from the aforesaid, Tune Group has also prayed for similar order for discovery against Celcom Mobile and Celcom Axiata, being the primary parties to the claims. Both Idham and Erik being merely agents of these parties are not necessary parties to the action. The claim for discovery against Idham and Erik also amounts to a fishing expedition. [77] Accordingly, it is my judgment that that this is indeed a plain and obvious case where the claims against Axiata Group, Digi, Idham and Erik are simply unsustainable and wholly without any merits. The claims against them ought to be struck out. Conclusion [78] For the above reasons, this Court hereby makes the following orders: (a) Court grants the applications under Enclosures 18, 26 and 30 on terms that all further proceedings in this action be stayed pending the final determination of the matters stated in the arbitration agreement stipulated in Clause 16.1 of the SHA with costs; (b) Court grants the applications under Enclosures 28, 29, 31 and 32 that the actions herein against Idham, Erik, Axiata Group and Digi be struck out with costs. Dated the 5th day of September 2023 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel: 1. Mr. Logan Sabapathy together with Ms. Vivian Oh for Plaintiff Messrs. Logan Sabapathy & Co. (Kuala Lumpur) 2. Ms. Tasha Lim Yi Chien for 1st Defendant Messrs. Gan Partnership (Kuala Lumpur) 3. Mr. Rabindra S. Nathan together with Mr. Nadchatiram Thiruchelvasegaram, Mr. Gary Yap Vern Chieh and Ms. Hoo Kit Yee for 2nd to 5th Defendants Messrs. Ramesh Dipendra Jeremiah Law (Kuala Lumpur) 4. Mr. Tang Choon Hao together with Mr. Fahri Azzat and Ms. Natasha (PD) for 6th Defendant Messrs. Fahri, Azzat & Co. (Petaling Jaya) 5. Ms. Foo Siew Yin together with Mr. Teoh Jo Vi for 7th Defendant Messrs. Shaikh David & Co. (Kuala Lumpur) 6. Mr. Arvind Dhanesha for 8th Defendant Messrs. Fawwaz & Co. (Petaling Jaya) 7. Mr. Alfred Chong for 9th Defendant Messrs. A. Chong & Co. (Shah Alam) 8. Mr. Gopal Sreenevasan together Ms. Himahlini A/P M. Ramalingam with for 10th and 11th Defendants Messrs. Himahlini & Co. (Kuala Lumpur) Case Reference: 1. Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57 2. Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 Legislation Reference: 1. Section 346 of the Companies Act 2016 2. Section 10(1) of the Arbitration Act 2012 3. Section 216 of the Singapore Companies Act 4. Order 18 Rule 19 (1) (a), (b), (c) and/or (d); Order 69 Rule 10; and Order 92 Rule 4 of the Rules of Court 2012 Appendix A Recital C of the SHA stipulates as follows: “Accordingly, the Parties have agreed to enter into this Agreement to regulate their relationship as shareholders of the Company and the affairs of and their dealings with the Company.” Clause 6A of the SHA stipulates as follows: 6A EXECUTIVE COMMITTEE (a) The Company will operate in accordance with the operation plans and policies such as investment policy, risk management policy, accounting policy and procurement policy approved by the Board. (b) The operations of the Company, including overseeing the implementation of these plans and policies and, when necessary, revising the operation plans and polices will be managed by an executive committee (the "Executive Committee" comprising four (4) persons appointed by the Board from time to time who shall at all times be responsible and subject to the control of the Board. (c) The Executive Committee shall include: (i) the chief executive officer (*CEO"); (ii) the chief financial officer ("CFO"); (iii) the executive director; and (iv) a Celcom's nominee as agreed by the Board, who are, subject to the authority granted by the Board, responsible for the day to day running of the Business (d) In the event the Board is not satisfied with the performance of the CEO or the CFO, or with both, the Board has the right to request, from the respective Shareholder who nominated the CEO or the CFO, for a replacement of the CEO or the CFO, or both. (e) The Parties agree to procure and ensure that the Board accepts and approves the terms of engagement of the CEO and CFO respectively. Clause 6.3 of the SHA stipulates as follows: 6.3 Voting (a) Save as otherwise provided in the Articles, the Act and/or this Agreement, all matters arising at any Shareholders' meeting shall be decided by simple majority votes cast by the Shareholders present save and except for reserved matters specified in

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Schedule 3 which shall not be taken by the Company without prior approval of Celcom and TVSB respectively provided that Celcom and TVSB each hold not less than 20% of the issued and paid-up capital of the Company. (b) Each Shareholder shall exercise or refrain from exercising any voting rights or other powers of control so as to ensure the passing of any and every resolution necessary or desirable to procure that the affairs of the Company are conducted in accordance with the provisions of this Agreement and otherwise to give full effect to the provisions of, this Agreement and likewise to ensure that no resolution is passed which does not accord with such provisions. (c) The Shareholders' resolutions may be adopted by circular resolution signed by the Shareholders on similar terms as they were voting in person in accordance with Clause 6.3(a), without convening a physical general meeting and may consist of several documents in the like form, each signed by one or more of the Shareholders. Resolutions may be circulated and passed by facsimile or by electronic mail. (d) None of the shareholders reserved matters specified in Schedule 3 will be taken by the Company without prior approval of Celcom and TVSB provided that Celcom and TVSB each hold not less than 20% of the issued and paid-up capital of the Company. (e) Save and except as required by applicable Malaysian law, any resolutions or corporate action dealing with the specific matters set out in Schedule 4 herein requiring shareholders approval shall be subject to the Limits of Authority set out in Schedule 4 herein. Clause 7.3 of the SHA stipulates as follows: 7.3 Secretary The secretary of the Company shall be a company secretary nominated by Jaschin Management Consultants Sdr Bhd (Company No. 277650-A) of 25-5, Block H, Jalan PJU 1/37, Dataran Prima, 47301 Petaling Jaya, Selangor or such other person(s) as shall from time to lime be determined by the Board. The majority of shareholders shall have the right to nominate the company secretary and the Board shall appoint such nominated person. Clause 9 of the SHA stipulates as follows: 9 TRANSFER OF SHARES 9.1 Subject to the provisions hereof no transfer of any Shares shall be made by a Shareholder unless the provisions contained in Clauses 9 or 10 are complied with. 9.2 Before transferring or disposing of its Shares or any interest in its Shares, a Shareholder proposing to transfer or dispose of the same (the "Transferor") shall give a notice in writing (the "Transfer Notice") (in accordance with the Transfer Notice Form set out in Appendix 4 herein) to the Company, with a copy to the other Shareholders, that the Transferor desires to transfer or dispose of the same. The Transfer Notice shall specify the number of Shares which the Transferor wishes to transfer or dispose (the "Relevant Shares") which may be all or part only of the Shares then held by the Transferor and shall specify the sale price per Share of the Relevant Shares which shall not exceed the Fair Market Value determined in Clause 10.6 ("Sale Price") and the terms and conditions of sale. The Transfer Notice shall constitute the Company the agent of the Transferor for the sale of the Relevant Shares as hereinafter provided: (a) Upon receipt of the Transfer Notice, the Company shall promptly, by notice in writing to the other Shareholders, offer the sale of the Relevant Shares at the Sale Price to the Shareholders in accordance with the ratio that is reflective of their respective proportions of the Issued capital of the Company held by them at the material time (which in the case of GS, the aforesaid reference to the respective proportions of the issued share capital held by him shall also include the shares subject to the Option held by him at the material time). Such offer shall be open for acceptance at any time within a period of 45 days from the date of notice by the Company (the "Prescribed Period"). (b) If the other Shareholders desire to accept the offer so made, it shall deliver a notice of acceptance of the offer in writing specifying the number of Shares it wishes to purchase to the Company within the Prescribed Period. Upon receipt of the notice of acceptance, the Company shall give notice in writing thereof to the Transferor and the Transferor shall be bound upon payment of the Sale Price to transfer the Relevant Shares to such Shareholders. The purchase shall be completed at a place and time to be appointed by the Board not being less than three (3) Business Days nor more than 45 days after the date of such notice. (c) If, by the foregoing procedure and after the expiry of the forty fifth day-period, the Company shall not have received acceptance of the other Shareholders in respect of all the Relevant Shares, then the Company shall be entitled to offer the remaining Relevant Shares to those Shareholders who wish to purchase the remaining Relevant Shares in accordance with a ratio that is reflective of their respective proportions of the issued capital of the Company held by them at the material time. Such offer shall be open for acceptance at any time within a period of 45 days from the date of notice by the Company (the "Extended Prescribed Period"). (d) If, by the foregoing procedure and after the expiry of the Extended Prescribed Period, the Company shall not have received acceptance of any Shareholder in respect of all the remaining Relevant Shares, then subject to Clauses 9.4 and 9.6 the Transferor shall be entitled to offer the remaining Relevant Shares on a bona fide sale on the same terms and conditions and at a price not being less than the Sale Price to any person ("Third Party") with the simple majority approval of the Shareholders of the Company (provided that this includes the approval of Celcom and TVSB). 9.3 It shall be a condition precedent to the right of a Shareholder to any transfer or dispose of any Shares in the Company for the time being legally or beneficially owned by him or of any interest therein in favour of any person who is not a Party (“transferee”) to this Agreement that the sale, transfer or other disposition shall not be effected unless: (a) the transferee (if not already bound by the provisions of this Agreement) undertakes with all the Parties to this Agreement, by executing a deed of ratification and accession as set out in Appendix 5 hereto or other suitable documentation under which the transferee shall agree to be bound by and to comply with all the provisions of this Agreement binding upon his transferor: and (b) the transferor transfers and the transferee undertakes all or, in the case of a transfer of part of the Shares of a Shareholder, a proportionate part of the loans or guarantees made to or given on behalf of the Company by the transferor and for the time being outstanding. Tag-Along rights 9.4 Subject to Clause 9.6 and notwithstanding Clause 9.2(d), no transfer of any Shares shall be made by the Transferor to any Third Party unless before a transfer is made, the Third Party makes a binding and irrevocable offer (the "Tag-Along Offer") in writing to the Shareholders of the Company to purchase from such Shareholders such number of Shares in the ratio that is reflective of their respective proportions of the issued capital of the Company held by them at the material time, on the same terms and conditions as the proposed sale to the Third Party (“Proportional Tag-Along Right”). By way of illustration only, if a Third Party intends to acquire ten percent (10%) of the Shares held by a Shareholder in the Company, then the Third Party must also make a Tag-Along Offer to the other Shareholders to acquire ten percent (10%) each of their respective Shares held in the Company. 9.5 Any Shareholder wishing to exercise their Proportional Tag-Along Right shall, within 45 days of receipt of the Tag-Along Offer, inform the Third Party that It intends to exercise its Proportional Tag-Along Right. In the event any Shareholder does not receive an offer from the Third Party as aforesaid or if any Shareholder accepts the Tag-Along Offer and the sale by the other Shareholders is not completed for any reason, the Transferor shall not proceed with the sale of their Shares to the Third Party. If within 45 days of receipt of the Tag-Along Offer, a Shareholder has not Informed the Third Party of its intention to accept the Tag-Along Offer, it shall be deemed to have rejected the Tag-Along Offer. 9.6 Notwithstanding Clause 9.2(d) and Clause 9.4, no Transferor whether acting alone or with other Shareholders (together referred to in this clause as "Transferor") may, acting in pursuance of an agreement or understanding (whether formal or informal) and whether by means of a single transaction or series of transactions or a scheme of whatever form, transfer Shares representing 50% or more of the then current issued ordinary share capital of the Company to any person (in this clause referred to as a Third Party) unless before the Transfer is made, the Third Party makes a binding and irrevocable offer (in this clause the "Tag-Along Offer) to any Shareholders who are not a Transferor ("Non-Participating Shareholders") to purchase from such Non-Participating Shareholders all remaining Shares in the Company on the same terms and conditions as the proposed sale to the Third Party (the "Outright Sale Tag-Along Right”) and Clause 9.5 shall apply, mutatis mutandis, to this clause save that references in Clause 9.5 to Proportional Tag-Along Right shall be deemed to refer to the Outright Sale Tag-Along Right and references to Shareholders shall be deemed to refer to the Non-Participating Shareholders. 9.7 Any proposed sale under Clause 9.4 or 9.6 to a Third Party is subject to the simple majority approval of the Shareholders of the Company. The Parties hereby agree that the Third Party shall not be a Competitor. 9.8 The Shareholders shall procure that the Directors shall register any transfer of Shares which complies with the provisions of this Agreement. 9.9 All transfers between the Shareholders, whether pursuant to this Clause or any other provisions of this Agreement, shall be effected by the Transferor selling as beneficial owner free and clear of all liens, charges and encumbrances and together with all rights attaching thereto. Upon completion, the Transferor shall deliver to the transferee duly executed transfers in respect of the Shares transferred in favour of the transferee together with the relevant share certificates against payment by the transferee of the price due in respect thereof. If the Transferor shall fail duly to deliver such transfers, it hereby irrevocably appoints the transferee its attorney with full power to execute, complete and deliver in its name, and on its behalf, the necessary transfers upon terms that forthwith upon execution and registration, the transferee shall make the payment or payments due in respect thereof to the Transferor. 9.10 Notwithstanding Clauses 9.2, 9.4, 9.6 and Clause 14.9 (but subject to Clause 9.3): (a) a Shareholder who is a natural person is allowed to transfer his entire shareholding (and not a portion only) to his Own Corporation; and (b) a Shareholder who is a corporate entity is allowed to transfer its entire shareholding (and not a portion only) to its wholly owned subsidiary, Provided always that in the event of a transfer of Shares to a Permitted Transferee, the Permitted Transferee shall be deemed to have issued a Transfer Notice where there is any change in the shareholding of the Permitted Transferee, whereupon the provisions of Clause 9.2 shall apply. 9.11 The parties agree that this Clause 9 does not apply to the Call Option granted to Celcom to acquire up to 51% of the issued and paid up capital of the Company. 9.12 All Shareholders, being corporate entities, agree that no person being a Competitor shall hold shares directly or indirectly in that Shareholder. Clause 14.1 of the SHA stipulates as follows: 14.1 Implementation of Agreement Each Shareholder agrees that he will at all times: (a) use all means reasonably available to him (including his voting power, direct or indirect, in relation to the Company) so as to ensure that the Company and any Director nominated or appointed by it (and any alternate to such Director) shall implement the provisions of this Agreement relating to the Company; (b) cooperate in good faith and execute or procure to be done and executed such further acts, deeds, documents and things and take such other action as may be reasonably required to give full effect to the provisions and intent of this Agreement; and (c) use all reasonable endeavours to promote the business and profitability of the Company. Clause 16 of the SHA expressly provides as follows: “Clause 16 – ARBITRATION 16.1 If any controversy, claim or dispute arises out of or in relation to this Agreement (including any question regarding its existence, validity or termination) or with respect to any breach thereof, the Parties shall seek to resolve the matter amicably through discussions between the Parties or by way of mediation. Only if the Parties fail to or compromise within sixty (60) days from the date of written notice of the dispute, the aggrieved Party shall seek arbitration as set forth in this Clause 16. 16.2 … 16.3 Any such controversy, claim or dispute shall be finally settled by arbitration by the Regional Centre for Arbitration Kuala Lumpur ("RCAKL") in accordance with the UNCITRAL Rules. The number of arbitrator shall be one (1), to be mutually agreed upon by the parties, failing which the arbitrator shall be appointed by the Director of the RCAKL. 16.5 All arbitration proceedings shall take place at the RCAKL, in accordance with the Rules of the RCAKL and the language to be used in the arbitral proceedings shall be English. The decision of the arbitrators is final and is binding on the Parties and the Parties agree to exclude any right of application or appeal to any courts of competent jurisdiction in connection with any question of law arising in the course of the arbitration or in respect of any award made.”

Schedule

Schedule 3 of the SHA stipulates as follows:

Schedule

SCHEDULE 3 Directors' and Shareholders' Reserved Matters A. Directors' Reserved Matters The following matters require the affirmative vote of the Directors representing both Celcom and TVSB: 1. Rights Issue: Any proposed undertaking by the Company of rights issue; 2. Finance: Any financing in excess of RM500,000 such financing of which includes: a) debt: the acceptance of any borrowing or the provision of any loan or guarantee by the Company; b) security: offering the Company's properties or assets (tangible or intangible) as security for any loans or indebtedness; c) lease: the procurement of any leasing facility or enter into any leasing agreement; 3. Guarantee: Giving of any guarantee or indemnity by the Company_ for or otherwise to secure the liabilities or obligations of any person; 4. Accounts and auditors: Approval of the Company's audlted accounts and any change to the Company's financial year or the material alteration of any of the Company's accounting policies; 5. Disposal: The sale, transfer, lease, assignment or disposal of any material part of the undertaking, property and/or assets of the Company which value exceeds 10% of the Net Tangible Asset of the Company including any asset, intellectual property, subsidiary of the Company or of any shares in any subsidiary of the Company; 6. Acquisition: Acquisition of any share or loan capital of anybody corporate or investment of money in the acquisition by purchase or otherwise shares, stock, debenture stock and securities in any company where the value of such investment exceeds ten per cent (10%) of the Net Tangible Asset of the Company; 7. Restructuring: Any reconstruction, amalgamation or engagement in a partnership or joint venture involving the Company with any other person; 8. Creditors: The making of any composition or arrangement with creditors because the Company is unable to pay the debts of such creditors when it falls due, including entering into or resolving to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them. For the avoidance of doubt, this excludes any credit arrangements the Company enters into with its suppliers in the ordinary course of business; 9. Related Party Transactions: Any third-party transactions or undertakings in which the shareholders have an interest; 10. ESOS: The payment, to any employee of any benefits, including bonuses, whether in cash or kind, introduction of any executive or employee stock or share option or profit sharing or bonus scheme of any nature; 11. New subsidiary: The formation of new subsidiary companies or Investment in other companies by the Company; 12. Contracts outside ordinary course of business: The entering into by the Company of any unusual or abnormal contract or commitment whereby its financial position shall be rendered less favourable; 13. Material Litigation: The institution of any legal proceedings and submission to arbitration of any material dispute affecting the Company; 14. Insurance: Any matter relating to Tune Talk obtaining insurance in respect of directors' liabilities; 15. Limit of Authority: Make any change to the Limit of Authority; 16. MVNO Service Provider: Make any change to the MVNO service provider; 17. Annual Business Plan: The annual business plan and budget of the Company (including making amendments to such annual business plan). 18. Price for IDD Retail: the variation of the Company's MVNO retail rate for IDD calls resulting in the MVNO retail price which is greater/lower than 10% of Celcom's current lowest published retail price for IDD calls for the same destination. B. Shareholders' Reserved Matters The following matters require the affirmative vote of the Shareholders' representing both Celcom and TVSB: 1. Business operations a) Expansion of the Business outside Malaysia; b) Cessation of Business operations of Tune Talk: c) Consolidation or merger of the business of Tune Talk; d) Change the nature or scope of its Business or commence any new business not ancillary or incidental to its Business or enter into contracts outside ordinary course of business 2. Shareholder issues a) Any proposed increases and the amount of any call to be made upon the Shareholders for the contribution of any equity or debt capital beyond an aggregate amount of RM7,500,000; b) Issuance of any debentures or other securities (other than Shares) convertible into shares or debentures; c) Issuance and redemption of any redeemable convertible preference shares: d) Grant of any option or interest over the share capital of the Company or right to acquire any additional Shares other than as provided for in this Agreement; e) Application for listing or quotation of the Company on any stock exchange; f) Recommendation, declaration and payment of dividend or other distribution whether payable in cash or otherwise; g) Issuance and distribution of bonus issue to the shareholders; h) Make any change to the Company's Memorandum or Articles of Association or the constitution of its board of directors. 3. Directors a) Increase or reduce the quorum and number of Directors to be appointed to the Board to a number which is different to that specified in the Agreement or of any subsidiary of the Company; b) Any matter referred to by the Board as a result of a deadlock at Board level; c) Enter into or vary the terms of any contract, agreement or arrangement with any of the directors or senior executives of any member of the Company; [End]