Exhibit 10.1


 


Execution
Copy


 


SETTLEMENT
AGREEMENT


 


dated
as of


 


November 23,
2009


 


among


 


iBasis, Inc.,


 


KPN
B.V.,


 


Celtic
ICS Inc.,


 


and


 


Koninklijke
KPN N.V.


 

















 


SETTLEMENT
AGREEMENT


 


SETTLEMENT AGREEMENT (this “Agreement”)
dated as of November 23, 2009 among iBasis, Inc., a Delaware
corporation (the “Company”),
Koninklijke KPN N.V, a public company incorporated under the laws of The
Netherlands (“Parent”), KPN B.V., a private
limited liability company organized under the laws of The Netherlands and a wholly
owned subsidiary of Parent (“Purchaser”),
and Celtic ICS Inc., a Delaware corporation and a wholly owned subsidiary
of Purchaser (“Merger Subsidiary”).


 


W I T N E S S E T H :


 


WHEREAS, on July 28, 2009 Parent, Purchaser and Merger Subsidiary
filed a combined Tender Offer Statement and Rule 13E-3 Transaction
Statement under cover of Schedule TO (together with any amendments or
supplements thereto, the “Schedule TO”)
with respect to the tender offer by Purchaser (as such offer has been amended
from time to time prior to the date hereof, the “Existing
Offer”) to purchase all outstanding shares of common stock, par
value $0.001 per share, of the Company not already owned by Purchaser (the
Company’s outstanding shares of common stock are hereinafter referred to as the
“Shares”);


 


WHEREAS, the Board of Directors of the Company (the “Company Board”) has established a special committee of the
Company Board consisting solely of independent directors (the “Special Committee”) to consider, review, evaluate, negotiate
and approve or reject the terms and conditions of the Existing Offer and any
modification thereto, and to determine whether such offer is fair to, and in
the best interests of, the stockholders of the Company (other than Parent and
its Affiliates);


 


WHEREAS, the Company, Parent and Purchaser desire that all claims in
the Delaware Litigation and New York Federal Litigation be dismissed with
prejudice, subject to the other terms and conditions of this Agreement;


 


WHEREAS, the Special Committee has determined to terminate the Rights
Agreement, subject to the other terms and conditions of this Agreement;


 


WHEREAS, the Special Committee has resolved to recommend that the
Company’s stockholders tender their Shares in the Offer; and


 


WHEREAS, Parent, Purchaser and Merger Subsidiary have agreed to amend
the Existing Offer to reflect such agreement (the Existing Offer as so amended
and as it may be amended from time to time in accordance with this Agreement,
the “Offer”).


 


NOW, THEREFORE, the parties hereto agree as follows:


 

















 


ARTICLE 1

THE OFFER


 


Section 1.01.  The Offer,
the Dismissal of the Litigation and the Termination of the Rights Agreement.   (a)  Substantially concurrently
with the execution and delivery of this Agreement, Parent, Purchaser and Merger
Subsidiary shall amend the Offer to (i) increase the purchase price to
$3.00 per Share, net to the seller in cash (the “Offer Price”); (ii)  provide that the conditions to the
Offer shall be as set forth in Annex I and no others; (iii) provide that
the expiration date of the Offer shall be December 8, 2009 (the “Initial Expiration Date”); and (iv) make
such other amendments as are necessary or appropriate to conform to the
requirements of this Agreement.


 


(b)       Purchaser expressly reserves the right to
waive any of the conditions to the Offer other than the Majority of the
Minority Condition, and to make any other changes in the terms of or conditions
to the Offer; provided that without the prior
consent of the Company (provided that such consent has been approved by the
Special Committee), Parent, Purchaser and Merger Subsidiary shall not:


 


(i)    reduce the amount of the consideration to be paid or the number
of Shares sought in the Offer or change the form of the consideration to be
paid in the Offer;


 


(ii)   amend or waive satisfaction of the Majority of the Minority
Condition;


 


(iii)  impose additional conditions to the Offer;


 


(iv)  amend, modify, supplement or otherwise change any of the conditions
to the Offer set forth in Annex I;


 


(v)   amend any other term of the Offer in any manner (A) adverse
to the stockholders of the Company (other than Parent and its Affiliates) or (B) that
would reasonably be expected to, individually or in the aggregate, prevent,
materially delay or materially impede the consummation of the Offer; or


 


(vi)  extend the expiration date of the Offer except as otherwise
provided herein.


 


Notwithstanding clause (vi) above, Parent, Purchaser and Merger
Subsidiary (x) may extend the Offer for two successive periods not to
exceed 10 business days each following the Initial Expiration Date (each such
additional period, an “Additional Offer Period”)
if any of the conditions is not satisfied or waived on the Initial Expiration
Date (the later of the Initial Expiration Date and the expiration date of the final
Additional Offer Period, if any, is referred to herein as the “Final Expiration Date”), and (y) shall extend the Offer
for the minimum period required by any rule, regulation, interpretation or
position of the Securities and Exchange Commission (“SEC”)
or the staff thereof applicable to the Offer or any period otherwise required
by applicable Law; provided that in no event shall Parent, Purchaser and Merger
Subsidiary be required or permitted to 


 


2

















 


extend the Offer beyond the End Date. 
Following expiration of the Offer, Parent, Purchaser and Merger
Subsidiary may, in their sole discretion, provide a subsequent offering period
(“Subsequent Offering Period”) in
accordance with Rule 14d-11 of the 1934 Act.  Purchaser shall not terminate or withdraw the
Offer other than in connection with the effective termination of this Agreement
in accordance with Section 7.01 hereof.


 


(c)       Subject to the terms and conditions set
forth in this Agreement and to the satisfaction or waiver of the conditions to
the Offer, Purchaser shall, and Parent shall cause it to, accept for payment
and pay for, promptly after the expiration of the Offer, all Shares (i) validly
tendered and not withdrawn pursuant to the Offer and (ii) validly tendered
in any Subsequent Offering Period (the date on which Shares are first accepted
for payment, the “Acceptance Date”).


 


(d)       Substantially concurrently with the
execution and delivery of this Agreement, Parent, Purchaser and Merger
Subsidiary shall file with the SEC an amendment to the Schedule TO, which shall
include a supplement to the offer to purchase and a revised form of letter of
transmittal reflecting the terms and conditions set forth in this Agreement
(collectively, together with any amendments or supplements thereto, the “Offer Documents”), and to the extent
required by applicable U.S. federal securities laws, Parent, Purchaser and
Merger Subsidiary shall cause the Offer Documents to be promptly disseminated
to holders of Shares.  Each of Parent,
Purchaser, Merger Subsidiary and the Company agrees promptly to correct any
information provided by it or any of its Affiliates for use in the Schedule TO
and the Offer Documents if and to the extent that such information shall have
become false or misleading in any material respect.  Parent, Purchaser and Merger Subsidiary shall
use reasonable best efforts to cause the Schedule TO as so corrected to be
filed with the SEC and the Offer Documents as so corrected to be disseminated
to holders of Shares, in each case as and to the extent required by applicable
U.S. federal securities laws.  The
Company, the Special Committee and their respective counsel shall be given a
reasonable opportunity to review and comment on any amendment to the Schedule
TO and the Offer Documents each time before any such document is filed with the
SEC, and Parent, Purchaser and Merger Subsidiary shall give good faith
consideration to any comments made by the Company, the Special Committee and
their respective counsel.  Parent,
Purchaser and Merger Subsidiary shall provide the Company, the Special
Committee and their respective counsel with (i) any comments or other
communications, whether written or oral, that Parent, Purchaser, Merger
Subsidiary or their respective Affiliates or counsel may receive from time to
time from the SEC or its staff with respect to the Schedule TO or the Offer
Documents promptly after receipt of those comments or other communications and (ii) a
reasonable opportunity to participate in the response of Parent, Purchaser and
Merger Subsidiary to those comments and to provide comments on that response
(to which good faith consideration shall be given), including by participating
with Parent, Purchaser and Merger Subsidiary or their counsel in any discussions
or meetings with the SEC.  Parent,
Purchaser and Merger Subsidiary agree to use reasonable best efforts to respond
promptly to any comments of the SEC or its staff with respect to the Schedule
TO or the Offer Documents.


 


3

















 


(e)       Substantially concurrently with the
execution and delivery of this Agreement, the Company, Parent and Purchaser
shall cause to be executed and filed with the Court of Chancery of the State of
Delaware a Stipulation and Order of Dismissal with prejudice in the Delaware
Litigation in the form attached as Exhibit A hereto.  All claims and counterclaims in the Delaware
Litigation shall be dismissed with prejudice. 
Any of the parties hereto and any of their affiliates, directors, employees,
officers, successors, agents, representatives or assigns may plead this
Agreement as a complete bar to any such dismissed claim brought in derogation
of this Section 1.01(e).


 


(f)        Substantially concurrently with the
execution and delivery of this Agreement, the Company, Parent and Purchaser
shall cause to be executed and filed with the United States District Court for
the Southern District of New York a Stipulation of Dismissal with prejudice in
the New York Federal Litigation in the form attached as Exhibit B
hereto.  All claims in the New York
Federal Litigation shall be dismissed with prejudice.  Any of the parties hereto and any of their
affiliates, directors, employees, officers, successors, agents, representatives
or assigns may plead this Agreement as a complete bar to any such dismissed
claim brought in derogation of this Section 1.01(f).


 


(g)       Concurrently with the dismissal with
prejudice of all claims in the Delaware Litigation and the New York Federal
Litigation, each of the Company, Parent, and Purchaser, on behalf of itself and
each of its affiliates, directors, employees, officers, successors, agents,
representatives and assigns (the “Releasing
Parties”), shall release, discharge and covenant not to sue each of
the other Releasing Parties from all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims, complaints and
demands whatsoever, in law or equity, including any and all claims, rights or
causes of action for contribution, indemnification or reimbursement (“Claims”), that any of the Releasing Parties
now has or hereafter can, shall or may have, whether individually,
representatively, derivatively or in any other capacity, to the extent such
Claims arise out of or are directly related to the allegations made by any
party in the Delaware Litigation or the New York Federal Litigation.  Notwithstanding the aforesaid, nothing herein
shall prevent legal action by any of the Releasing Parties to enforce any term
or provision of this Agreement or to prevent legal action by any of the
Releasing Parties for actions or inactions taken by any party after the date of
this Agreement.


 


(h)       Within four business days following the
execution and delivery of this Agreement, the Company and the Special Committee
shall take all action necessary to terminate the Rights Agreement by entering
into an amendment to the Rights Agreement substantially in the form of Exhibit C
hereto (the “Amendment”).  In furtherance of the foregoing, the Company
Board (including the two Purchaser designees thereon) shall ratify such
Amendment within such four business day period. 
Purchaser shall cause its designees on the Company Board to take all
actions necessary to effect the provisions of this paragraph (h), including by
attending and voting in favor of such Amendment at any duly called meeting of
the Company Board or signing any action by written consent approving such
Amendment.


 


4

















 


Section 1.02.  Other
Company Action.  (a)  The
Company hereby consents to the Offer and represents that the Special Committee,
at a meeting duly called and held, has (i) approved this Agreement and the
transactions contemplated hereby, including the Offer, and (ii) resolved
(subject to Section 4.01) to recommend that the Company’s stockholders
tender their Shares in the Offer.


 


(b)       The Company shall, or shall cause its transfer
agent to, as promptly as practicable furnish Parent with (i) a list of its
stockholders and computer disk and layout containing the names and addresses of
all record holders of Shares, (ii) a NOBO list and computer disk
containing the stockholder information on the NOBO list as of the most recent
practicable date, (iii) a current securities participant list from DTC and
a copy in electronic form of any such list for all dates in the Company’s or
its transfer agent’s possession since December 31, 2008, (iv) online
access to the DTC system for Parent’s Information Agent for the Offer, Okapi
Partners, to obtain on a daily basis going forward DTC participant lists in
electronic form and (v) such additional information (including updated
information on any Shares held in any employee plans, transfer sheets address
corrections) and such other assistance as Parent or its Information Agent for
the Offer may reasonably request in connection with the Offer.


 


(c)       Substantially concurrently with the
execution and delivery of this Agreement, the Company (i) shall file with
the SEC and, to the extent required by applicable U.S. federal securities laws,
disseminate to holders of Shares an amendment to the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on
July 30, 2009 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that shall reflect
the recommendations of the Special Committee referred to above and (ii) 
shall join as a Rule 13E-3 filing person with Parent, Purchaser and Merger
Subsidiary on the Schedule TO (and each amendment thereto).  Each of the Company, Parent, Purchaser and
Merger Subsidiary agrees promptly to correct any information provided by it for
use in the Schedule 14D-9 if and to the extent that such information shall have
become false or misleading in any material respect.  The Company shall use reasonable best efforts
to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be
disseminated to holders of Shares, in each case as and to the extent required
by applicable U.S. federal securities laws. 
Parent, Purchaser, Merger Subsidiary and their counsel shall be given a
reasonable opportunity to review and comment on any amendment to the Schedule
14D-9 each time before it is filed with the SEC, and the Company shall give
reasonable and good faith consideration to any comments made by Parent,
Purchaser, Merger Subsidiary and their counsel. 
The Company shall provide Parent, Purchaser, Merger Subsidiary and their
counsel with (x) any comments or other communications, whether written or
oral, that the Company, the Special Committee or their respective counsel may
receive from time to time from the SEC or its staff with respect to the
Schedule 14D-9 promptly after receipt of those comments or other communications
and (y) a reasonable opportunity to participate in the Company’s response
to those comments and to provide comments on that response (to which good faith
consideration shall be given), including by participating with the Company, the
Special Committee or their counsel in any discussions or meetings with the
SEC.  The Company agrees to use
reasonable best efforts to respond promptly to any comments of the SEC or its
staff with respect to the Schedule 14D-9.


 


5

















 


ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE COMPANY


 


The Company represents and
warrants to Parent, Purchaser and Merger Subsidiary that:


 


Section 2.01.  Corporate
Authorization.  (a)  The
execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby are within
the Company’s corporate powers and have been duly authorized by all necessary
corporate action on the part of the Company. 
This Agreement has been duly executed and delivered by the Company and,
assuming the due authorization, execution and delivery by Parent, Purchaser and
Merger Subsidiary, constitutes a valid and binding agreement of the Company,
enforceable against it in accordance with its terms.


 


(b)       The Special Committee has been duly
authorized and constituted and at a meeting duly called and held has
unanimously adopted resolutions recommending (subject to Section 4.01)
that the Company’s stockholders tender their Shares in the Offer (the “Special Committee Recommendation”), and
such resolutions have not been amended or withdrawn.


 


Section 2.02.  Disclosure
Documents.  The information
with respect to the Company or any of its Subsidiaries that the Company
supplies to Parent, Purchaser and Merger Subsidiary specifically for use in the
Schedule TO and the Offer Documents, at the time of the filing of the Schedule
TO or any amendment or supplement thereto, at the time of any distribution or
dissemination of the Offer Documents and at the time of the consummation of the
Offer, will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.


 


Section 2.03.  Finders’
Fees.  Except for the Company
Financial Advisor, there is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act on behalf of the
Company or any of its Subsidiaries or any of their respective officers or
directors who might be entitled to any fee or commission from the Company or
any of its Subsidiaries in connection with the transactions contemplated by
this Agreement.


 


Section 2.04.  Opinion of
Financial Advisor.  The
Special Committee has received an opinion of Jefferies & Company, Inc.,
financial advisor to the Special Committee (the “Company Financial Advisor”), to the effect that, as of November 22,
2009, the consideration to be paid pursuant to the Offer and the Short Form Merger
is fair to the Company’s stockholders (other than Parent or its Affiliates)
from a financial point of view.


 


6

















 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF PARENT


 


Parent represents and
warrants to the Company that:


 


Section 3.01.  Corporate
Authorization.  The execution,
delivery and performance by Parent, Purchaser and Merger Subsidiary of this
Agreement and the consummation by Parent, Purchaser and Merger Subsidiary of
the transactions contemplated hereby are within the corporate powers of Parent,
Purchaser and Merger Subsidiary and have been duly authorized by all necessary
corporate action.  This Agreement has
been duly executed and delivered by each of Parent, Purchaser and Merger
Subsidiary and, assuming the due authorization, execution and delivery by the
Company, constitutes a valid and binding agreement of each of Parent, Purchaser
and Merger Subsidiary, enforceable against it in accordance with its terms.


 


Section 3.02.  Disclosure
Documents.  The information
with respect to Parent and any of its Affiliates that Parent supplies to the
Company specifically for use in any document to be filed by the Company with
the SEC in connection with the Offer will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading at the time of the filing
of such Company Disclosure Document or any supplement or amendment thereto and
at the time of any distribution or dissemination thereof.


 


Section 3.03.  Funds.  Parent has, or will have at the Acceptance
Date, sufficient funds to perform its obligations under this Agreement,
including consummating the Offer and the other transactions contemplated by
this Agreement and paying all fees and expenses relating to such transactions.


 


ARTICLE 4

COVENANTS OF THE COMPANY


 


Section 4.01.  Adverse
Recommendation Change.  The
Special Committee shall (a) recommend that the Company’s stockholders,
other than Parent and its Affiliates, tender their Shares in the Offer and (b) not
withhold, withdraw, qualify or modify in a manner adverse to Parent or fail to
make the Special Committee Recommendation or publicly recommend or announce its
intention to take any action or make any statement inconsistent with the
Special Committee Recommendation (collectively, an “Adverse Recommendation Change”).  However, if the Special Committee determines
in good faith (after considering the advice of its outside legal and financial
advisors) that continuing to recommend that the Company’s stockholders tender
their Shares in the Offer could be reasonably determined to be inconsistent
with its fiduciary duties under Delaware Law, then the Special Committee may
make an Adverse Recommendation Change, in which case the obligations of the
Special Committee and the Company Board under this Section 4.01 shall
cease; provided that the Special
Committee may not make an Adverse Recommendation Change until after at least 48
hours following Parent’s receipt of written notice from the Company advising
Parent that the Special Committee 


 


7

















 


intends
to make such an Adverse Recommendation Change and the reasons therefor and the
Special Committee considers any modifications proposed by Parent during such
48-hour period in order to eliminate the need for such Adverse Recommendation
Change.


 


Section 4.02.  Other Actions.  None of the Company, the Company Board or the
Special Committee, or any members thereof, shall (a) adopt or propose to
adopt any stockholder rights plan prior to the termination of this Agreement
pursuant to Section 7.01 hereof or (b) commence or threaten to
commence any action, suit or other proceeding against Parent, Purchaser, Merger
Subsidiary, any of their respective Affiliates, directors or officers or any
other Person seeking to, or that would reasonably be expected to, impede,
frustrate, prevent, enjoin, alter or materially delay the Offer or any other
transactions contemplated hereby, but only to the extent that any such action,
suit or other proceeding is based primarily on facts known to the members of
the Special Committee as of the date of this Agreement.


 


Section 4.03.  Board
Resignations.  At or prior to
the Acceptance Date, (1) the Company Board shall amend the bylaws of the
Company to delete Section 3.2 of such bylaws in its entirety and to amend Section 8.1(i)(B) of
such bylaws to read, in its entirety, “by resolution of the Board of Directors”
(the “Specified Bylaw Amendments”); provided that Parent
shall cause its designees on the Company Board to approve such amendments, and (2) the
Company shall obtain the resignation of each of its current directors (other
than Purchaser’s designees), effective as of the Acceptance Date, and take all
other action necessary to cause Purchaser’s designees to be elected or
appointed to the Company Board effective as of the Acceptance Date.  The Company’s obligations to appoint
Purchaser’s designees to the Company Board shall be subject to Section 14(f) of
the 1934 Act and Rule 14f-1 thereunder. 
Subject to Purchaser’s obligations set forth in the last sentence of
this Section 4.03, the Company shall use reasonable best efforts to
promptly take all actions required pursuant to Section 14(f) and Rule 14f-1
in order to fulfill its obligations under this Section 4.03, including
mailing to stockholders the information required under Section 14(f) and
Rule 14f-1 as is necessary to enable Parent’s designees to be elected or
appointed to the Company Board.  Without
limiting the foregoing, the Company shall (subject to the last sentence of this
Section 4.03) file with the SEC and mail to stockholders of the Company no
later than 10 calendar days prior to the Initial Expiration Date (unless a
shorter period is permitted by the SEC) the information required under Section 14(f) and
Rule 14f-1 as is necessary to enable Parent’s designees to be elected or
appointed to the Company Board.  Parent shall supply to the Company any
information with respect to itself and its designees, officers, directors and
Affiliates to the extent required by Section 14(f) and Rule 14f-1
no later than 12:00 noon, New York time, on November 25, 2009.


 


Section 4.04.  Compensation
Arrangements.  Prior to the Acceptance Date, the Company (acting through
its Special Committee) will take all steps that may be necessary or advisable
to cause each Change in Control Arrangement entered into by the Company or any
of its Subsidiaries prior to, on or after the date hereof to be approved by the
Special Committee (comprised solely of “independent directors”) in accordance
with the requirements of Rule 14d-10(d)(2) under the 1934 Act and the
instructions thereto as an “employment compensation, severance or other
employee benefit arrangement” within 


 


8

















 


the meaning of Rule 14d-10(d)(2) under
the 1934 Act and to satisfy the requirements of the non-exclusive safe harbor
set forth in Rule 14d-10(d) of the 1934 Act.  “Change in Control Arrangement” means each
plan, program, agreement, arrangement or understanding of the Company or any of
its Subsidiaries pursuant to which any holder of Shares could become entitled
to (i) any additional compensation, enhanced severance or other benefits
or any acceleration of the time of payment or vesting of any compensation,
severance or other benefits or any funding of any compensation or benefits by
the Company or any of its Subsidiaries, in each case as a result of the Offer,
the Merger or any of the other transactions contemplated by this Agreement
(alone or in combination with any other event), or (ii) any other
compensation or benefits from the Company or any of its Subsidiaries related to
or contingent upon or the value of which would be calculated on the basis of
the Offer, the Merger or any of the other transactions contemplated by this
Agreement (alone or in combination with any other event).


 


ARTICLE 5

COVENANTS OF PARENT


 


Section 5.01.  Obligations
of Merger Subsidiary.  Parent
shall take all action necessary to cause each of Purchaser and Merger
Subsidiary to perform its obligations under this Agreement and to consummate
the Offer on the terms and conditions set forth in this Agreement.


 


ARTICLE 6

COVENANTS OF PARENT AND THE COMPANY


 


The parties hereto agree
that:


 


Section 6.01.  Public
Announcements.  Parent and the
Company shall consult with each other before issuing any press release or
making any other public statement with respect to this Agreement or the
transactions contemplated hereby and except as may be required by Law or any
listing agreement with or rule of any national securities exchange, shall
not issue any such press release or make any such other public statement or
schedule any such press conference or conference call before such consultation;
provided that the foregoing shall
not prohibit (x) Parent or the Company from making any statement relating
to this Agreement or the transactions contemplated hereby in any press
interview so long as (i) such interview is conducted in the ordinary
course of business, (ii)  the discussion of this Agreement or the
transactions contemplated hereby are incidental to, and not the primary topic
of, such interview and (iii) such statement is consistent with (including
in scope) a mutually agreed set of questions and answers or (y) the
Company or the Special Committee from issuing any press release or making any
other public statement, upon the Special Committee making an Adverse
Recommendation Change in accordance with the terms of this Agreement.


 


Section 6.02.  Director
Options.  On the Acceptance
Date, each unvested Company Stock Option (as defined in Section 6.03(b))
held by a member of the


 


9




















 


Company Board shall fully vest and become exercisable, and, to the
extent not previously exercised, shall be treated upon the Effective Time in
the same manner as other Company Stock Options pursuant to Section 6.03(b).  Prior to the Acceptance Date, the Company
shall take all actions as are necessary to give effect to the transactions
contemplated by this Section 6.02.


 


Section 6.03.  Merger Without Meeting of Stockholders.  (a) If as a result of the consummation
of the Offer (including any Subsequent Offering Period), Parent and its
Affiliates shall collectively own at least 90% of the outstanding Shares, then
Parent and its Affiliates shall cause all Shares owned by them to be
contributed to Merger Subsidiary and the parties shall take all necessary and appropriate
action to cause the merger of Merger Subsidiary with and into the Company (the “Short Form Merger”) to become
effective as soon as practicable, as contemplated in the Offer without a
meeting of stockholders of the Company in accordance with Section 253 of
the DGCL.


 


(b)       At or immediately prior
to the effective time of the Short Form Merger (the “Effective Time”), each option to purchase
Shares outstanding under the iBasis Amended and Restated 1997 Stock Incentive
Plan or the iBasis 2007 Stock Plan (the “Company
Stock Plans”) or otherwise (each such option, a “Company Stock Option”), whether or not
vested or exercisable, shall vest and be canceled, and the Company shall pay
the holder of any such Company Stock Option at or promptly after the Effective
Time an amount in cash equal to the product of (i) the excess, if any, of
the Offer Price over the applicable exercise price per Share of such option and
(ii) the number of Shares subject to such Company Stock Option immediately
prior to the Effective Time.  Prior to
the Effective Time, the Company shall take all actions as are necessary to give
effect to the transactions contemplated by this Section 6.02(b).


 


ARTICLE 7


TERMINATION


 


Section 7.01.  Termination.  This Agreement may be terminated and the Offer
may be abandoned:


 


(a)       At any time prior to the Effective Time
by mutual written agreement of the Company (provided that
such termination has been approved by the Special Committee) and Parent;


 


(b)       by either the Company (provided that such termination has been approved by the
Special Committee) or Parent prior to the Acceptance Date, if:


 


(i)           the Acceptance Date
shall not have occurred on or before January 8, 2010 (the “End Date”); provided
that the right to terminate this Agreement pursuant to this Section 7.01(b)(i) shall
not be available to any party whose breach of any provision of this Agreement
results in the failure of the Offer to be consummated by such time; or


 


10

















 


(ii)          there is a Law or final
non-appealable judgment, injunction, order or decree of any Governmental
Authority with competent jurisdiction restraining, prohibiting or otherwise
making illegal the consummation of the Offer;


 


(c)       by Parent prior to the
Acceptance Date if, prior to the Acceptance Date the Special Committee shall
have made an Adverse Recommendation Change that remains in effect; or


 


(d)       by the Company if (A) Purchaser
shall have terminated the Offer (other than in connection with a valid
termination of this Agreement in accordance with this Section 7.01), or (B) Purchaser
shall fail to accept for payment and pay for Shares validly tendered and not
withdrawn in the Offer at the expiration thereof subject to and in accordance
with Article 1 hereof.


 


The party desiring to terminate this
Agreement pursuant to this Section 7.01 (other than pursuant to Section 7.01(a))
shall give written notice of such termination to the other party, which notice
shall identify the specific section and subsection of this Agreement pursuant
to which such termination is being effected.


 


Section 7.02.  Effect of Termination.  If this Agreement is terminated pursuant to Section 7.01,
this Agreement shall become void and of no effect with no liability on the part
of any party (or any stockholder, director, officer, employee, agent or advisor
of such party) to the other party hereto; provided
that if such termination shall result from a material breach of this Agreement,
such party shall be fully liable for any and all liabilities and damages
incurred or suffered by the other party as a result of such breach.  The provisions of Section 1.01(e), Section 1.01(f),
Section 1.01(g), Section 1.01(h), Section 4.02(b) and Article 8
shall survive any termination hereof pursuant to Section 7.01.


 


ARTICLE 8


MISCELLANEOUS


 


Section 8.01.  Notices. 
All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission and electronic mail
transmission, so long as a receipt of such e-mail is requested and received)
and shall be given,


 


if to Parent, Purchaser or Merger Subsidiary,
to:


 


Koninklijke
KPN N.V.

Maanplein 55

2516 CK, The Hague, The Netherlands


Attention:  Michel
Hoekstra

Facsimile No.: 
31 70 4460675


e-mail:  michel.hoekstra@kpn.com


 


11

















 


with
a copy to:


 


Cravath,
Swaine & Moore LLP


Worldwide
Plaza


825
Eighth Avenue


New
York, New York 10019


Attention: 
Mark I. Greene, Esq.


Facsimile No.: 
(212) 474-3700


e-mail: 
mgreene@cravath.com


 


if to the Company, to:


 


Special
Committee of the Board of Directors


c/o
iBasis, Inc. 
 20 Second Avenue

Burlington, MA 01803


Attention:  Chairman of the Special Committee of the
Board of Directors


Facsimile
No.:  781-505-7300


 


with copies to:


 


iBasis, Inc.

 20 Second Avenue

Burlington, MA 01803


Attention:  Mark S. Flynn


Facsimile No.: 
(781) 505-7970


e-mail: 
mflynn@ibasis.net


 


and


 


Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo P.C.


One
Financial Center


Boston,
Massachusetts 02111


Attention: 
Michael L. Fantozzi, Esq.


Facsimile No.: 
(617) 542-2241


e-mail : 
MLFantozzi@mintz.com


 


and


 


	
  Gibson,
  Dunn & Crutcher LLP

  
	
  200
  Park Avenue

  
	
  New
  York, New York 10166

  
	
  Attention:

  	
  Dennis J. Friedman, Esq.

  
	
   

  	
  Eduardo
  Gallardo, Esq.

  
	
  Facsimile No.: (212) 351-6201

  
	
  e-mail:

  	
  dfriedman@gibsondunn.com

  
	
   

  	
  egallardo@gibsondunn.com

  
			



 


or to such other address or facsimile number
as such party may hereafter specify for the purpose by notice to the other
parties hereto.  All such notices,
requests and other 


 


12

















 


communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m.
on a business day in the place of receipt. 
Otherwise, any such notice, request or communication shall be deemed to
have been received on the next succeeding business day in the place of receipt.


 


Section 8.02.  Survival of Representations, Warranties and Covenants.  The representations, warranties and covenants
contained herein and in any certificate or other writing delivered pursuant
hereto shall not survive the Acceptance Date, except for those covenants
contained herein to the extent that by their terms apply or are to be performed
after the Acceptance Date.


 


Section 8.03.  Amendments and Waivers.  (a)  Any provision of this
Agreement may be amended or waived prior to the Effective Time if, but only if,
such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective; provided that any such amendment or waiver by the Company
shall require the approval of the Special Committee.


 


(b)       No failure or delay by
any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege.  The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by Law.


 


Section 8.04.  Expenses. 
All costs and expenses incurred in connection with this Agreement shall
be paid by the party incurring such cost or expense.


 


Section 8.05.  Binding Effect; Benefit; Assignment.  (a)  The provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.  No provision of this Agreement is intended to
confer any rights, benefits, remedies, obligations or liabilities hereunder
upon any Person other than the parties hereto and their respective successors
and assigns.


 


(b)       No party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.


 


Section 8.06.  Governing Law.  This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware, without regard
to the conflicts of law rules of such state.


 


Section 8.07.  Jurisdiction.  The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with or relating to, this Agreement or
the transactions contemplated hereby shall be brought in the Court of Chancery
of the State of Delaware in and for New Castle County, Delaware, and each of
the parties hereby irrevocably consents to the exclusive jurisdiction of such
court (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such 


 


13





















 


suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.  To the extent the
Chancery Court determines that it lacks subject matter jurisdiction over
any such court proceeding contemplated herein, the parties hereby
agree that such proceeding can and then shall be brought only in any
other appropriate Delaware state court or federal court sitting in
Delaware and the parties will not challenge the venue as described
herein.  Process in any such suit, action or proceeding may be served on
any party anywhere in the world, whether within or without the jurisdiction of
any such court.  Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 8.01 shall be deemed effective service of process on such
party.


 


Section 8.08.  WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 8.09.  Counterparts; Effectiveness.  This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by all of the
other parties hereto.  Until and unless
each party has received a counterpart hereof signed by the other party hereto,
this Agreement shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).


 


Section 8.10.  Entire Agreement.  This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both oral and written,
among the parties with respect to the subject matter hereof.


 


Section 8.11.  Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court or other Governmental
Authority of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party.  Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent
possible.


 


Section 8.12.  Specific Performance.  The parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with the specific terms hereof and that monetary damages, even if
available, would not be an adequate remedy therefor.  It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the performance of the terms and
provisions hereof in any court 


 


14





















 


specified in Section 8.07, in addition to any other remedy to
which they are entitled at law or in equity. 
The parties further agree not to assert that a remedy for specific
performance is unenforceable, invalid, contrary to Law or inequitable for any
reason, nor to assert that a remedy of monetary damages would provide an
adequate remedy for any such breach.


 


ARTICLE 9


DEFINITIONS


 


Section 9.01.  Definitions.  (a)  As used herein, the following
terms have the following meanings:


 


“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person; provided that none of the Company or any of its Subsidiaries
shall be deemed an Affiliate of Parent or any of its Subsidiaries for purposes
of this Agreement, and none of Parent or any of its Subsidiaries (other than
the Company and its Subsidiaries) shall be deemed to be an Affiliate of the
Company or any of its Subsidiaries.


 


“Delaware Litigation” means the litigation entitled iBasis, Inc.
v. Koninklijke KPN N.V., et al.,; KPN B.V. and Koninklijke KPN N.V. v.
IBasis, Inc., et al., Civil Action No. 4774-VCS, pending in the
Chancery Court of the State of Delaware.


 


“Governmental
Authority” means any government, court, regulatory or administrative
agency, commission or authority or other governmental instrumentality, whether
domestic or foreign, federal, state or local, multinational or supranational.


 


“Law”
means all laws (including common law), statutes, ordinances, codes, rules and
regulations of any Governmental Authorities.


 


“New York Federal Litigation” means the
litigation entitled iBasis, Inc. v. Koninklijke KPN N.V., et al.,
Civil Action No. 09-7288 (AKH), pending in the United States District
Court for the Southern District of New York.


 


“1933 Act” means
the Securities Act of 1933, as amended.


 


“1934 Act” means the Securities Exchange Act of 1934, as
amended.


 


“Person” means
an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including a Governmental
Authority.


 


“Right” has the
meaning set forth for such term in the Rights Agreement.


 


“Rights Agreement”
means the Rights Agreement dated July 30, 2009 between the Company and Computershare
Trust Company, N.A., as rights agent, as amended to the date of this Agreement.


 


15

















 


“Subsidiary”
means, with respect to any Person, any entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at any
time directly or indirectly owned by such Person.


 


Section 9.02.  Other Definitional and Interpretative Provisions.  The words “hereof”, “herein” and “hereunder”
and words of like import used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement.  The captions herein are included for
reference purposes only and shall be ignored in the construction or
interpretation hereof.  References to
Articles, Sections, Exhibits, Annexes and Schedules are to Articles, Sections,
Exhibits, Annexes and Schedules of this Agreement unless otherwise specified.  All Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein.  All terms defined
in this Agreement and used but not otherwise defined in any Schedule or any
other document made or delivered pursuant hereto shall have the meaning as
defined in this Agreement.  The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms.  Whenever
the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”.  “Writing”, “written” and comparable terms
refer to printing, typing and other means of reproducing words (including
electronic media) in a visible form. 
References to any statute shall be deemed to refer to such statute as
amended from time to time and to any rules or regulations promulgated
thereunder.  References to any agreement
or contract shall be deemed to refer to such agreement or contract as amended,
modified or supplemented from time to time in accordance with the terms
thereof.  References to any Person
include the successors and permitted assigns of that Person.


 


[The remainder of this page has been intentionally left blank; the
next page is the signature page.]


 


16





















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.


 


	
   

  	
  iBASIS,
  INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark S. Flynn

  
	
   

  	
   

  	
  Name:
  Mark S. Flynn

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Legal Officer and Corporate Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KONINKLIJKE
  KPN N.V.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ad J. Scheepbouwer

  
	
   

  	
   

  	
  Name:
  Ad J. Scheepbouwer

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KPN
  B.V.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ad J. Scheepbouwer

  
	
   

  	
   

  	
  Name:
  Ad J. Scheepbouwer

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer,

  
	
   

  	
   

  	
   

  	
  Koninklijke
  KPN N.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CELTIC
  ICS INC.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michel Hoekstra

  
	
   

  	
   

  	
  Name:
  Michel Hoekstra

  
	
   

  	
   

  	
  Title:
  Secretary

  
					



 


17

















 


ANNEX I


 


Notwithstanding any other provision of this
Agreement, Purchaser shall not be required to accept for payment or pay for any
Shares pursuant to the Offer if:


 


(a)           this
Agreement shall have been terminated in accordance with its terms; or


 


(b)           at
expiration of the Offer,


 


(i)       there shall not have
been validly tendered and not withdrawn prior to the expiration of the Offer a
number of Shares representing at least a majority of the Shares outstanding
immediately prior to the expiration of the Offer, excluding Shares owned by
Parent and its Affiliates, the Company or any officer or director of Parent,
any of its Affiliates or the Company (the “Majority
of the Minority Condition”);


 


(ii)      any of the other
conditions to the Offer set forth in the Schedule TO (as amended by Amendment
Nos. 1 through 7 thereto) shall not have been satisfied;


 


(iii)     the Special Committee
shall have made an Adverse Recommendation Change; or


 


(iv)     the Company shall not
have (A) taken the actions necessary to cause the Specified Bylaw
Amendments to become effective, (B) delivered to Purchaser the
resignations contemplated by Section 4.03, which resignations shall be
valid, binding and effective or (C) otherwise performed in all material
respects the obligations, and complied in all material respects with the
agreements and covenants, required to be performed by, or complied with by, it
under Section 4.03 or 4.04 of this Agreement at or prior to the expiration
of the Offer.


 


The foregoing conditions to the Offer are for
the sole benefit of Parent, Purchaser and Merger Subsidiary and, subject to the
terms and conditions of this Agreement and the applicable rules and
regulations of the SEC, may be waived by Parent, Purchaser or Merger
Subsidiary, in whole or in part, at any time; provided, however,
that the Majority of the Minority Condition shall be nonwaivable.


 
















 


EXHIBIT A


 


IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


 


	
  iBASIS, INC.,

   

  Plaintiff,

   

  v.

   

  KONINKLIJKE KPN
  N.V., KPN B.V., CELTIC ICS INC., EELCO BLOK, JOOST FARWERCK, AD SCHEEPBOUWER,
  STAN MILLER, BAPTIEST COOPMANS, A.H.J. RISSEEUW, M. BISCHOFF, C.M. COLIJN-HOOIJMANS,
  D.I. JAGER, M.E. VAN LIER LELS, J.B.M. STREPPEL, R.J. ROUTS, D.J. HAANK,
  W.T.J. HAGEMAN, M.E. HOEKSTRA and M.N.A.J. VOGT,

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
  

  

  

  C.A. No. 4774-VCS

  
	
   

  	
  )

  	
   

  
	
  Defendants.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  KPN B.V. and
  KONINKLIJKE KPN N.V.,

   

  Counterclaim-Plaintiffs,

   

  v.

   

  iBASIS, INC.,
  ROBERT H. BRUMLEY, CHARLES N. CORFIELD, OFER GNEEZY, W. FRANK KING and GORDON
  J. VANDERBRUG,

   

  Counterclaim-Defendants.

  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

  



 


STIPULATION
AND ORDER OF DISMISSAL WITH PREJUDICE


 


IT IS HEREBY STIPULATED AND AGREED by and among the parties, through
their undersigned counsel, that the claims and counterclaims in the
above-captioned action are hereby dismissed with prejudice pursuant to Court of
Chancery Rule 41(a)(1)(ii), with each party to bear its own costs and
attorneys’ fees.


 

















 




	
  MORRIS,
  NICHOLS, ARSHT & TUNNELL LLP

   

  /s/ David J. Teklits

  	
   

  	
  RICHARDS,
  LAYTON & FINGER P.A.

   

  /s/ Raymond J.
  DiCamillo

  
	
   

  	
   

  	
   

  
	
  David J. Teklits
  (#3221)

  Jay N. Moffitt (#4742)

  Bradley D. Sorrels
  (#5233)

  1201
  N. Market Street

  P.O. Box
  1347

  Wilmington, DE 19899-1347

  (302) 658-9200

  Attorneys for Defendants and
  Counterclaim-Plaintiffs Koninklijke KPN N.V. and KPN B.V. and Defendants
  Celtic ICS Inc., Eelco Blok, Joost Farwerck, Ad Scheepbouwer, Stan Miller,
  Baptiest Coopmans, A.H.J. Risseeuw, M. Bischoff, C.M. Colijn-Hooijmans, D.I.
  Jager, M.E. Van Lier Lels, J.B.M. Streppel, R.J. Routs, D.J. Haank, W.T.J.
  Hageman, M.E. Hoekstra and M.N.A.J. Vogt

   

  	
   

  	
  Thomas A. Beck (#2086)

  Raymond J. DiCamillo
  (#3188)

  Margot F. Alicks
  (#5127)

  920 North King Street

  Wilmington, DE 19801

  (302) 651-7700

  Attorneys for Plaintiff and
  Counterclaim-Defendant iBasis, Inc. and Counterclaim-Defendants Robert
  H. Brumley, Charles N. Corfield, Ofer Gneezy, W. Frank King and Gordon J.
  VanderBrug

  
	
  OF COUNSEL:

   

  CRAVATH, SWAINE &
  MOORE LLP

  Julie A. North

  Darin P. McAtee

  Worldwide Plaza

  825 Eighth
  Avenue

  New York, NY
  10019

  (212) 474-1000

  	
   

  	
  OF COUNSEL:

   

  GIBSON,
  DUNN & CRUTCHER LLP

  Adam H. Offenhartz

  David J. Kerstein

  J. Ross Wallin

  200 Park Avenue

  New York, New
  York 10166-0193

  (212) 351-4000

  






 


SO ORDERED this       
day of November, 2009.


 




	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Vice
  Chancellor

  






 
















 


EXHIBIT B


 


	
  UNITED STATES
  DISTRICT COURT

  SOUTHERN DISTRICT OF NEW YORK

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  iBASIS, INC.,

   

  Plaintiff,

   

  -against-

   

  KONINKLIJKE KPN N.V., KPN B.V., CELTIC ICS INC., EELCO BLOK, JOOST
  FARWERCK,  MICHEL
  HOEKSTRA, W.T.J. HAGEMAN  and AD SCHEEPBOUWER,

   

  Defendants.

  	
   

  	
  09 Civ. 7288
  (AKH)

  ECF CASE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


STIPULATION
DISMISSING THE COMPLAINT WITH PREJUDICE


 


WHEREAS, on August 18,
2009, Plaintiff iBasis, Inc. filed a complaint in the above-referenced
action (the “Complaint”) against Defendants Koninklijke KPN N.V., KPN B.V., Celtic ICS Inc., Eelco
Blok, Joost Farwerck, Michel Hoekstra, W.T.J. Hageman and Ad Scheepbouwer (“Defendants”),
and


 


WHEREAS, on November 22, 2009, the parties executed and entered
into a Settlement Agreement providing for the dismissal with prejudice of all
claims brought in the Complaint;


 

















 


IT IS HEREBY STIPULATED AND AGREED by and among the parties, through
their undersigned counsel, that the Complaint and all claims brought therein are
hereby dismissed with prejudice pursuant to Rule 41(a)(1)(ii) of the Federal
Rules of Civil Procedure, with each party to bear its own costs and
attorneys’ fees.


 


 


	
   

  	
  CRAVATH, SWAINE & MOORE LLP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Julie A. North

  
	
   

  	
   

  	
  Julie A. North (jnorth@cravath.com)

  
	
   

  	
   

  	
  Darin P. McAtee (dmcatee@cravath.com)

  
	
   

  	
   

  
	
   

  	
  Worldwide Plaza

  
	
   

  	
  825 Eighth Avenue

  
	
   

  	
  New York, NY 10019

  
	
   

  	
  (212) 474-1000

  
	
   

  	
   

  
	
   

  	
   

  	
  Attorneys for Defendants Koninklijke KPN N.V., KPN B.V., Celtic ICS
  Inc., Eelco Blok, Joost Farwerck, Michel Hoekstra, W.T.J. Hageman and Ad
  Scheepbouwer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GIBSON, DUNN & CRUTCHER LLP

  
	
   

  	
   

  
	
   

  	
  By 

  	
  /s/ Adam H. Offenhartz

  
	
   

  	
   

  	
  Adam H.
  Offenhartz (aoffenhartz@gibsondunn.com)

  
	
   

  	
   

  	
  David J. Kerstein (dkerstein@gibsondunn.com)

  
	
   

  	
   

  	
  J. Ross Wallin
  (rwallin@gibsondunn.com)

  
	
   

  	
   

  
	
   

  	
  200 Park Avenue

  
	
   

  	
  New York, NY 10166

  
	
   

  	
  (212)
  351-4000

  
	
   

  	
   

  
	
   

  	
   

  	
  Attorneys for Plaintiff iBasis, Inc.

  



 


2
















 


EXHIBIT C


 


AMENDMENT TO RIGHTS AGREEMENT


 


THIS AMENDMENT TO RIGHTS
AGREEMENT (this “Amendment”) is entered into as of November [  ], 2009, between iBasis, Inc., a
Delaware corporation (the “Company”), and Computershare Trust Company, N.A., as
Rights Agent (the “Rights Agent”), with respect to the following:


 


A. The Company and the
Rights Agent entered into that certain Rights Agreement, dated as of July 30,
2009 (the “Rights Agreement”);


 


B. Pursuant to Section 27
of the Rights Agreement, the Company may, and the Rights Agent shall, if the
Company so directs, supplement or amend the Rights Agreement without the
approval of the holders of the Rights (as defined in the Rights Agreement); and


 


C. The Special Committee of
the Board of Directors of the Company has authorized the amendment of the Rights
Agreement to amend the Final Expiration Date (as defined in the Rights Agreement).


 


NOW, THEREFORE, in
consideration of the foregoing, the parties hereto agree as follows:


 


1.
Amendment of the Rights Agreement. Clause (i) of
Section 7(a) of the Rights Agreement is hereby amended and
restated in its entirety as follows:


 


“(i) the Close of
Business on November [  ],1 2009 (the “Final
Expiration Date”),”


 


2.
Amendment Controls. If this Amendment conflicts with or is inconsistent
with any provision contained in the Rights Agreement, this Amendment shall
control. This Amendment shall be considered a part of the Rights Agreement.


 


3.
Governing Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.


 


4.
Counterparts; Facsimile and PDFs. This Amendment may be executed
in any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. A facsimile or .pdf signature
delivered electronically shall constitute an original signature for all
purposes.


 






1      No later than November 27, 2009.


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to the Rights Agreement to be duly
executed as of the date first written above.


 


 


	
   

  	
  iBASIS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPUTERSHARE TRUST COMPANY, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: