Common use of Termination by the Buyer Clause in Contracts

Termination by the Buyer. This Agreement may be terminated by the Buyer at any time prior to the Effective Time if: (a) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company under this Agreement occurs that would cause any condition in Section 6.02(a) or Section 6.02(b) not to be satisfied and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 6.04; provided that, any wilful breach shall be deemed to be incapable of being cured and the Buyer is not then in breach of this Agreement so as to cause any of the conditions in Section 6.03(a) or Section 6.03(b) not to be satisfied; (b) prior to the approval by the Company Shareholders of the Arrangement Resolution: (i) the Company Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Buyer, acting reasonably, the approval or recommendation of the Arrangement or the Arrangement Resolution (a “Company Change in Recommendation”); (ii) the Company Board approves, recommends or authorizes the Company to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) concerning an Acquisition Proposal; or (iii) the Company breaches ARTICLE VII in any material respect; (c) prior to the approval of the Arrangement Resolution by the Company Shareholders, the Buyer Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Company, acting reasonably, the approval or recommendation of the Arrangement or the Arrangement Resolution (a “Buyer Change in Recommendation”) or the Buyer enters into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) with respect to a Competing Transaction; provided that, the Buyer is then in compliance with ARTICLE VII and that prior to or concurrent with such termination the Buyer pays the Buyer Termination Fee in accordance with Section 7.07; or (d) there has occurred a Company Material Adverse Effect which is incapable of being cured on or before the Outside Date.

Termination by the Buyer. This (a) The Buyer may terminate this Agreement may be terminated by notice in writing to the Seller if: (i) prior to or at Completion, the Buyer becomes aware of a breach of Seller Warranty or the Seller’s obligations under clause 5.1 that is likely to result in Claim for more than three hundred million U.S. dollars (US$300,000,000) and such breach remains subsisting and is not waived by the Buyer at Completion or in the Buyer’s reasonable opinion is not likely to cease to subsist at Completion; (ii) at any time prior to Completion, if the Effective Time if:Seller becomes Insolvent; (aiii) at any time prior to Completion, if the PRL 15 Title is revoked or for any reason the Seller no longer holds sufficient interest in the PRL 15 Title to transfer the Assigned Interest to the Buyer as contemplated by this Agreement; (iv) at any time prior to Completion, if there is a Material Adverse Effect; or (v) at Completion, a Fundamental Warranty that has been breached remains subsisting at Completion and that breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company under this Agreement occurs that would cause any condition in Section 6.02(a) or Section 6.02(b) not to be satisfied and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 6.04; provided that, any wilful breach shall be deemed to be incapable of being cured and waived by the Buyer is not then in breach of this Agreement so as at or prior to cause any of the conditions in Section 6.03(a) or Section 6.03(b) not to be satisfied;Completion. (b) prior If the Buyer exercises its rights under clause 6.2 to terminate this Agreement in respect of a breach of Seller Warranty, the approval by the Company Shareholders of the Arrangement Resolution: Buyer acknowledges and agrees that: (i) it does not have the Company Board fails right to unanimously recommend, withdraws, amends, modifies make any Claims in relation to a breach of such Seller Warranty against the Seller under this Agreement or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Buyer, acting reasonably, the approval or recommendation of the Arrangement or the Arrangement Resolution (a “Company Change in Recommendation”)otherwise; and (ii) it irrevocably releases the Company Board approves, recommends or authorizes Seller from any Claims in relation to a breach of such Seller Warranty it may otherwise have in the Company future in relation to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) concerning an Acquisition Proposal; or (iii) the Company breaches ARTICLE VII in any material respect;such matters. (c) prior If the Buyer does not exercise its rights under clause 6.2 to the approval terminate this Agreement in respect of the Arrangement Resolution by the Company Shareholdersa breach of Seller Warranty and Completion occurs, the Buyer Board fails acknowledges and agrees that: (i) it does not have the right to unanimously recommend, withdraws, amends, modifies make any Claims in relation to a breach of such Seller Warranty against the Seller or qualifies any Seller Group Member under this Agreement or otherwise in a manner that has substantially relation to the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Company, acting reasonably, the approval or recommendation relevant breach of the Arrangement or the Arrangement Resolution (a “Buyer Change in Recommendation”) or such Seller Warranties of which the Buyer enters into a written agreement was aware at the time of Completion which gave rise to the Buyer’s rights under clause 6.2; and (other than a confidentiality agreement permitted by ii) it irrevocably releases the Seller and each Seller Group Member from any Claims in accordance with Section 7.03(a)(iv) with respect relation to a Competing Transaction; provided that, breach of such Seller Warranty it may otherwise have in the future in relation to those matters of which the Buyer is then in compliance with ARTICLE VII and that prior was aware at the time of Completion which gave rise to or concurrent with such termination the Buyer pays the Buyer Termination Fee in accordance with Section 7.07; or (d) there has occurred a Company Material Adverse Effect which is incapable of being cured on or before the Outside DateBuyer’s rights under clause 6.2.

Termination by the Buyer. This Agreement (a) The Buyer may be terminated by the Buyer terminate this deed at any time prior before Completion by notice in writing to the Effective Time Seller if: (a1) a breach of any representation or warranty or failure to perform any covenant or agreement a Seller’s Warranty occurs before Completion, and following the lesser of: (A) 30 days after the date on which the part Buyer has gives a written notice of the Company under this Agreement occurs that would cause any condition in Section 6.02(abreach of the Seller’s Warranty (Buyer Notice Date); and (B) or Section 6.02(b) not to be satisfied the number of days between the Buyer Notice Date and such the date immediately before Completion, the breach or failure is incapable of being cured or remains subsisting and is not cured in accordance with waived at Completion and constitutes grounds for a Claim where the terms reasonable estimate of Section 6.04; provided that, any wilful breach shall be deemed to be incapable of being cured and the Buyer Loss is not then in breach of this Agreement so as to cause any of less than A$10 million; or (2) the conditions in Section 6.03(a) or Section 6.03(b) not to be satisfied;Seller becomes Insolvent. (b) prior to In the approval by event that the Company Shareholders of the Arrangement Resolution: (i) the Company Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Buyer, acting reasonablyBuyer exercises its rights under clause 6.2(a), the approval Buyer acknowledges and agrees that: (1) it does not have the right to make any Claims against the Seller under this deed or recommendation of otherwise; and (2) it must irrevocably release the Arrangement or Seller from any Claims it may otherwise have in the Arrangement Resolution (a “Company Change future in Recommendation”); (ii) the Company Board approves, recommends or authorizes the Company relation to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) concerning an Acquisition Proposal; or (iii) the Company breaches ARTICLE VII in any material respect;such matters. (c) prior In the event that the Buyer does not exercise its rights under clause 6.2(a) and Completion occurs or the Buyer is deemed not to the approval of the Arrangement Resolution by the Company Shareholdershave exercised its rights under clause 6.2(a) and Completion occurs, the Buyer Board fails acknowledges and agrees that: (1) the aggregate amount of all Claims it may make against the Seller under this deed or otherwise in relation to unanimously recommend, withdraws, amends, modifies or qualifies in the relevant breach of a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Company, acting reasonably, the approval or recommendation Seller’s Warranty of the Arrangement or the Arrangement Resolution (a “Buyer Change in Recommendation”) or which the Buyer enters into a written agreement was aware at the time of Completion which gave rise to the Buyer’s rights under clause 6.2(a) (other than a confidentiality agreement permitted by and Completion Breach) is limited to A$10 million; and (2) to the extent that the aggregate amount of all Claims it makes in accordance with Section 7.03(a)(iv) with respect relation to a Competing Transaction; provided thatCompletion Breach exceeds $A10 million, it must irrevocably release the Buyer is then in compliance with ARTICLE VII and that prior to or concurrent with Seller from any such termination the Buyer pays the Buyer Termination Fee in accordance with Section 7.07; orexcess Claim amount. (d) there has occurred a Company Material Adverse Effect which The right of the Buyer to terminate this deed pursuant to clause 6.2(a) if any of the events referred to in clauses 6.2(a)(1) and 6.2(a)(2) occurs is incapable without prejudice to the ability of being cured on or before the Outside DateParties to agree amendments to the Transaction Agreements to address such event. In the event that such agreement is breached, clause 6.2(c) will operate subject to the terms of such agreement.

Termination by the Buyer. This The Buyer may terminate its obligations to purchase Shares under this Agreement may be terminated by upon one (1) Trading Day's notice if any of the Buyer at any time prior to the Effective Time iffollowing events (each, an "Event of Default") shall occur: (a) a breach of any representation The Company fails to fulfill its obligations pursuant to Sections 5.3, 5.4, 5.5, 5.6 or warranty or failure to perform any covenant or agreement on the part of the Company under this Agreement occurs that would cause any condition in Section 6.02(a) or Section 6.02(b) not to be satisfied and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 6.04; provided that, any wilful breach shall be deemed to be incapable of being cured and the Buyer is not then in breach 5.9 of this Agreement so as (or makes any announcement, statement or threat that it does not intend to cause honor the obligations described in this paragraph), and any of the conditions in Section 6.03(a) such failure shall continue uncured (or Section 6.03(b) any announcement, statement or threat not to honor its obligations shall not be satisfiedrescinded in writing) for ten (10) days after the Company shall have been notified thereof in writing by Buyer; (b) The Company fails to obtain effectiveness with the SEC prior to the approval by the Company Shareholders June 30, 2001 of the Arrangement Resolution: (iRegistration Statement required to be filed pursuant to Section 2(a) the Company Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Buyer, acting reasonably, the approval or recommendation of the Arrangement Registration Rights Agreement or any such Registration Statement, after its initial effectiveness and during the Arrangement Resolution Registration Period (a “Company Change as defined in Recommendation”the Registration Rights Agreement); , lapses in effect or sales of all of the Registrable Securities otherwise cannot be made thereunder (ii) whether by reason of the Company Board approves, recommends Company's failure to amend or authorizes supplement the Company to enter into a written agreement (other than a confidentiality agreement permitted by and prospectus included therein in accordance with the Registration Rights Agreement, the Company's failure to file and obtain effectiveness with the SEC of an additional Registration Statement required pursuant to Section 7.03(a)(iv3(b) concerning an Acquisition Proposal; of the Registration Rights Agreement or otherwise) for more than forty-five (iii45) the Company breaches ARTICLE VII consecutive Trading Days or more than ninety (90) Trading Days in any material respecttwelve (12) month period after such Registration Statement becomes effective; (c) prior The Company or any Subsidiary shall make an assignment for the benefit of creditors, or apply for or consent to the approval appointment of a receiver or trustee for it or for all or substantially all of its property or business; or such a receiver or trustee shall otherwise be appointed; (d) Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Company or any subsidiary of the Arrangement Resolution Company; (e) The Company shall fail to maintain the listing of the Common Stock on Nasdaq or trading in such Common Stock shall otherwise be halted or suspended for a period of ten (10) consecutive Trading Days; (f) The sale, conveyance or disposition of all or substantially all of the assets of the Company, the effectuation by the Company Shareholders, of a transaction or series of related transactions in which more than 50% of the Buyer Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially voting power of the same effectCompany is disposed of, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Companyconsolidation, acting reasonably, the approval merger or recommendation other business combination of the Arrangement Company with or into any other Person or Persons when the Arrangement Resolution Company is not the survivor; (a “Buyer Change g) The Company breaches any material representation or warranty contained in Recommendation”) or the Buyer enters into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) with respect to a Competing Transaction; provided that, the Buyer is then in compliance with ARTICLE VII and that prior to or concurrent with such termination the Buyer pays the Buyer Termination Fee in accordance with Section 7.07this Agreement; or (dh) there has occurred Since the date hereof, an event that had a Company Material Adverse Effect which is incapable of being cured on shall have occurred (provided that any changes resulting from general economic conditions or before the Outside Datetelecommunications industry in general shall not be deemed to constitute a "Material Adverse Effect" for purposes hereof).

Termination by the Buyer. This Agreement The Buyer may be terminated by the Buyer terminate this agreement at any time prior before Completion by notice in writing to the Effective Time Sellers if: (a) a breach an order is made or an effective resolution is passed for the winding up or dissolution without winding up (otherwise than for the purposes of any representation reconstruction or warranty or failure to perform any covenant or agreement on the part amalgamation) of the Company under this Agreement occurs that would cause any condition in Section 6.02(a) or Section 6.02(b) not to be satisfied and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 6.04; provided that, any wilful breach shall be deemed to be incapable of being cured and the Buyer is not then in breach of this Agreement so as to cause any of the conditions in Section 6.03(a) or Section 6.03(b) not to be satisfieda Seller; (b) prior to a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed over the approval by whole or a substantial part of the undertaking or property of the Company Shareholders of the Arrangement Resolution: (i) the Company Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Buyer, acting reasonably, the approval or recommendation of the Arrangement or the Arrangement Resolution (a “Company Change in Recommendation”); (ii) the Company Board approves, recommends or authorizes the Company to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) concerning an Acquisition Proposal; or (iii) the Company breaches ARTICLE VII in any material respectSeller; (c) prior to the approval a holder of an Encumbrance takes possession of the Arrangement Resolution by whole or any substantial part of the undertaking and property of the Company Shareholders, the Buyer Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Company, acting reasonably, the approval or recommendation of the Arrangement or the Arrangement Resolution (a “Buyer Change in Recommendation”) or the Buyer enters into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) with respect to a Competing Transaction; provided that, the Buyer is then in compliance with ARTICLE VII and that prior to or concurrent with such termination the Buyer pays the Buyer Termination Fee in accordance with Section 7.07; orSeller; (d) there is a breach of the AFSL Licence which would reasonably be expected to give rise to a cancellation of that licence and which breach is not cured prior to Completion; (e) there is a material investigation undertaken by a financial services industry regulator in the United States, the United Kingdom or Australia, where that regulatory body has occurred commenced court proceedings to prosecute or has delivered notice in writing to the Company indicating that it intends to commence court proceedings to prosecute the Company, the Sellers or the Founders; (f) this agreement and the transactions contemplated by this agreement conflict with or result in a breach of any material provision of any writ, order, injunction, judgment, law, rule or regulation to which any of the Sellers, the Founders, the Company or the Buyer are subject to or bound; (g) there is a material breach of any of the Material Adverse Effect Warranties or any provision of clause 6.1 (as qualified by clause 6.2), which is incapable not capable of being cured on prior to Completion. If the Sellers notify the Buyers in writing prior to Completion that there is a material breach of the Material Warranties or before any breach of clause 6.1 and provides notice of that breach and the Outside Datebreach is not remedied prior to Completion, the Buyer’s sole remedy in respect of that breach is to elect to terminate the agreement; or (h) any of the Founders cease to be employed by the Company, other than as a result of death or disability.

Termination by the Buyer. This The Buyer may terminate the right of the Company to effect any Draw Downs under this Agreement may be terminated by upon one (1) Trading Day's notice if any of the Buyer at any time prior to the Effective Time iffollowing events (each, an "Event of Default") shall occur: (a) a breach The Company (i) fails to issue shares of Common Stock to the Buyer on any representation Settlement Date, (ii) fails to remove any restrictive legend (or warranty to withdraw any stop transfer instructions in respect thereof) on any certificate or failure any shares of Common Stock issued to perform any covenant or agreement on the part of the Company under Buyer as and when required by this Agreement occurs that would cause any condition in Section 6.02(aor the Registration Rights Agreement, or (iii) fails to fulfill its obligations pursuant to Sections 5.3, 5.4, 5.6, 5.8, 5.9, 5.13, 5.14 or Section 6.02(b) not to be satisfied and such breach or failure is incapable of being cured or is not cured in accordance with the terms of Section 6.04; provided that, any wilful breach shall be deemed to be incapable of being cured and the Buyer is not then in breach Article IX of this Agreement so as (or makes any announcement, statement or threat that it does not intend to cause honor the obligations described in this paragraph), and any of the conditions in Section 6.03(a) such failure shall continue uncured (or Section 6.03(b) any announcement, statement or threat not to honor its obligations shall not be satisfiedrescinded in writing) for ten (10) days after the Company shall have been notified thereof in writing by any Buyer; (b) The Company fails to obtain effectiveness with the SEC prior to the approval by the Company Shareholders April 7, 2001 of the Arrangement Resolution: (iRegistration Statement required to be filed pursuant to Section 2(a) of the Company Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effectRegistration Rights Agreement, or fails to publicly reaffirm within five obtain the effectiveness of any additional Registration Statement (5required to be filed pursuant to Section 3(b) Business Days after having been requested to do so by the Buyer, acting reasonably, the approval or recommendation of the Arrangement Registration Rights Agreement) within ninety (90) days after the Registration Trigger Date (as defined in the Registration Rights Agreement), or any such Registration Statement, after its initial effectiveness and during the Arrangement Resolution Registration Period (a “Company Change as defined in Recommendation”the Registration Rights Agreement); , lapses in effect or sales of all of the Registrable Securities otherwise cannot be made thereunder (ii) whether by reason of the Company Board approves, recommends Company's failure to amend or authorizes supplement the Company to enter into a written agreement (other than a confidentiality agreement permitted by and prospectus included therein in accordance with the Registration Rights Agreement, the Company's failure to file and obtain effectiveness with the SEC of an additional Registration Statement required pursuant to Section 7.03(a)(iv3(b) concerning an Acquisition Proposal; of the Registration Rights Agreement or otherwise) for more than twenty (iii20) the Company breaches ARTICLE VII consecutive Trading Days or more than sixty (60) Trading Days in any material respecttwelve (12) month period after such Registration Statement becomes effective; (c) prior The Company or any Subsidiary shall make an assignment for the benefit of creditors, or apply for or consent to the approval appointment of a receiver or trustee for it or for all or substantially all of its property or business; or such a receiver or trustee shall otherwise be appointed; (d) Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Company or any subsidiary of the Arrangement Resolution Company; (e) The Company shall fail to maintain the listing of the Common Stock on a Principal Market or trading in such Common Stock shall otherwise be halted or suspended for a period of ten (10) consecutive Trading Days; (f) The sale, conveyance or disposition of all or substantially all of the assets of the Company, the effectuation by the Company Shareholders, of a transaction or series of related transactions in which more than 50% of the Buyer Board fails to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially voting power of the same effectCompany is disposed of, or fails to publicly reaffirm within five (5) Business Days after having been requested to do so by the Companyconsolidation, acting reasonably, the approval merger or recommendation other business combination of the Arrangement Company with or into any other Person or Persons when the Arrangement Resolution Company is not the survivor; (a “Buyer Change g) The Company breaches any material representation or warranty contained in Recommendation”) or the Buyer enters into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.03(a)(iv) with respect to a Competing Transaction; provided that, the Buyer is then in compliance with ARTICLE VII and that prior to or concurrent with such termination the Buyer pays the Buyer Termination Fee in accordance with Section 7.07this Agreement; or (dh) there has occurred Since the date hereof, an event that had a Company Material Adverse Effect which is incapable of being cured on shall have occurred (provided that any changes resulting from general economic conditions or before the Outside Datetelecommunications industry in general shall not be deemed to constitute a "Material Adverse Effect" for purposes hereof).