Exhibit 4.1


 


FIRST AMENDED AND
RESTATED


CERTIFICATE OF
INCORPORATION


OF


IBASIS, INC.


 


iBasis, Inc. (the “CORPORATION”),
a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the “GENERAL CORPORATION LAW”),
hereby certifies as follows:


 


FIRST: The name of the
Corporation is iBasis, Inc. The Corporation’s original name was “Chip Chat, Inc.”
The original Certificate of Incorporation of the Corporation was filed by the
Corporation with the Secretary of State of Delaware on August 2, 1996.


 


SECOND: On December 30,
1996, the Corporation filed an amendment to its Certificate of Incorporation
that changed the name of the Corporation to “VIP Calling, Inc.” On July 29,
1999, the Corporation filed an amendment to its Certificate of Incorporation
that changed the name of the Corporation to iBasis, Inc.


 


THIRD: This First Amended
and Restated Certificate of Incorporation: (i) was duly adopted in
accordance with the provisions of Sections 242 and 245 of the General
Corporation Law; and (ii) was approved by written consent of a majority of
the stockholders of the Corporation given in accordance with the provisions of Section 228
of the General Corporation Law.


 


FOURTH: The text of the
Certificate of Incorporation of the Corporation, as heretofore amended, is
hereby further restated and amended to read in its entirety as follows:


 


ARTICLE I


NAME


 


The name of the
corporation (the “CORPORATION”) is iBasis, Inc.


 


ARTICLE II


REGISTERED AGENT


 


The address of the
Corporation’s registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent is The Corporation Trust Corporation.


 


ARTICLE III


PURPOSE


 


The nature of the business
or purposes to be conducted or promoted by the Corporation is as follows:


 


To engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.


 


ARTICLE IV


CAPITAL STOCK


 


The total number of
shares of all classes of stock which the Corporation shall have authority to
issue is 100,000,000 shares, consisting solely of:


 

















 


85,000,000              shares of common stock, par value
$0.001 per share


 


(“COMMON STOCK”); and


 


15,000,000              shares of preferred stock, par
value $0.001 per share


 


(“PREFERRED STOCK”).


 


The following is a
statement of the powers, designations, preferences, privileges, and relative
rights in respect of each class of capital stock of the Corporation.


 


A.            COMMON STOCK.


 


1.             GENERAL. The voting, dividend and liquidation rights of
the holders of Common Stock are subject to and qualified by the rights of the
holders of Preferred Stock.


 


2.             VOTING. The holders of Common Stock are entitled to one
vote for each share held at all meetings of stockholders. There shall be no
cumulative voting.


 


3.             DIVIDENDS. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor if, as and when determined
by the Board of Directors and subject to any preferential dividend rights of
any then outstanding shares of Preferred Stock.


 


4.             LIQUIDATION. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential rights of any then outstanding
shares of Preferred Stock.


 


B.            PREFERRED STOCK.


 


Shares of Preferred Stock
may be issued from time to time in one or more series, each of such series to have
such powers, designations, preferences, and relative, participating, optional,
or other special rights, if any, and such qualifications and restrictions, if
any, of such preferences and rights, as are stated or expressed in the
resolution or resolutions of the Board of Directors providing for such series
of Preferred Stock. Different series of Preferred Stock shall not be construed
to constitute different classes of shares for the purposes of voting by classes
unless expressly so provided in such resolution or resolutions.


 


Authority is hereby
granted to the Board of Directors from time to time to issue the Preferred
Stock in one or more series, and in connection with the creation of any such
series, by resolution or resolutions to determine and fix the powers,
designations, preferences, and relative, participating, optional, or other
special rights, if any, and the qualifications and restrictions, if any, of
such preferences and rights, including without limitation dividend rights,
conversion rights, voting rights (if any), redemption privileges, and liquidation
preferences, of such series of Preferred Stock (which need not be uniform among
series), all to the fullest extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
the resolution or resolutions providing for the creation or issuanceof any
series of Preferred Stock may provide that such series shall be superior to,
rank equally with, or be junior to the Preferred Stock of any other series, all
to the fullest extent permitted by law. No resolution, vote, or consent of the
holders of the capital stock of the Corporation shall be required in connection
with the creation or issuance of any shares of any series of Preferred Stock authorized
by and complying with the conditions of this Amended and Restated Certificate
of Incorporation, the right to any such resolution,vote, or consent being
expressly waived by all present and future holders of the capital stock of the
Corporation.


 


Any resolution or
resolutions adopted by the Board of Directors pursuant to the authority vested
in them by this Article IV shall be set forth in a certificate of
designation along with the number of shares of stock of such series as to which
the resolution or resolutions shall apply and such certificate shall be 


 

















 


executed, acknowledged,
filed, recorded, and shall become effective, in accordance with Section 103
of the General Corporation Law of the State of Delaware. Unless otherwise
provided in any such resolution or resolutions, the number of shares of stock
of any such series to which such resolution or resolutions apply may be
increased (but not above the total number of authorized shares of the class) or
decreased (but not below the number of shares thereof then outstanding) by a
certificate likewise executed, acknowledged, filed and recorded, setting forth
a statement that a specified increase or decrease therein has been authorized
and directed by a resolution or resolutions likewise adopted by the Board of
Directors. In case the number of such shares shall be decreased, the number of
shares so specified in the certificate shall resume the status which they had
prior to the adoption of the first resolution or resolutions. When no shares of
any such class or series are outstanding, either because none were issued or
because none remain outstanding, a certificate setting forth a resolution or
resolutions adopted by the Board of Directors that none of the authorized
shares of such class or series are outstanding, and that none will be issued
subject to the certificate of designations previously filed with respect to
such class or series, may be executed, acknowledged, filed and recorded in the
same manner as previously described and it shall have the effect of eliminating
from this Amended and Restated Certificate of Incorporation all matters set
forth in the certificate of designations with respect to such class or series
of stock. If no shares of any such class or series established by a resolution
or resolutions adopted by the Board of Directors have been issued, the voting
powers, designations, preferences and relative, participating, optional or
other rights, if any, with the qualifications, limitations or restrictions
thereof, may be amended by a resolution or resolutions adopted by the Board of
Directors. In the event of any such amendment, a certificate which (i) states
that no shares of such class or series have been issued, (ii) sets forth
the copy of the amending resolution or resolutions and (iii) if the
designation of such class or series is being changed, indicates the original
designation and the new designation, shall be executed, acknowledged, filed,
recorded, and shall become effective, in accordance with Section 103 of
the General Corporation Law of the State of Delaware.


 


ARTICLE V


BOARD OF DIRECTORS


 


The following provisions
are inserted for the management of the business and for the conduct of the
affairs of the Corporation and for defining and regulating the powers of the
Corporation and its directors and stockholders and are in furtherance and not
in limitation of the powers conferred upon the Corporation by statute:


 


(a) The Board
of Directors shall be divided into three classes of directors, such classes to
be as nearly equal in number of directors as possible, having staggered
three-year terms of office, the term of office of the directors of the first
such class to expire as of the first annual meeting of the Corporation’s
stockholders following the closing of the Corporation’s first public offering
of shares of Common Stock registered pursuant to the Securities Act of 1933, as
amended, those of the second class to expire as of the second annual meeting of
the Corporation’s stockholders following such closing, and those of the third
class as of the third annual meeting of the Corporation’s       stockholders following such closing,
such that at each annual meeting of stockholders after such closing, nominees
will stand for election to succeed those directors whose terms are to expire as
of such meeting. Any director serving as such pursuant to this paragraph (b) of
Article V may be removed only for cause and only by the vote of the
holders of a majority of the shares of the Corporation’s stock entitled to vote
for the election of directors.


 


(b) The Board
of Directors shall have the power and authority:  (i) to adopt, amend or repeal By-Laws of
the Corporation, subject only to such limitations, if any, as may be from time
to time imposed by other provisions of this Certificate, by law, or by the
By-Laws; and  (ii) to the full
extent permitted or not prohibited by law, and without the consent of or other
action by the stockholders, to authorize or create mortgage, pledges or other
liens or encumbrances upon any or all of the assets, real, personal or mixed,
and franchises of the Corporation, including after-acquired property, and to
exercise all of the powers of the Corporation in connection therewith.


 

















 


ARTICLE VI


LIMITATION OF
LIABILITY


 


No director of the
Corporation shall be personally liable to the Corporation or to any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability; PROVIDED,
HOWEVER, that to the extent required from time to time by applicable law, this Article VI
shall not eliminate or limit the liability of a director, to the extent such
liability is provided by applicable law, (i) for any breach of the
director’s duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of Title 8 of the
Delaware Code, or (iv) for any transactions from which the director
derived an improper personal benefit. No amendment to or repeal of this Article VI
shall apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director
occurring prior to the effective date of such amendment or repeal.


 


ARTICLE VII


INDEMNIFICATION


 


The Corporation shall, to
the fullest extent permitted by Section 145 of the General Corporation Law
of Delaware, as amended from time to time, indemnify each person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was, or has agreed to
become, a director or officer of the Corporation, or is or was serving, or has agreed
to serve, at the request of the Corporation, as a director, officer or trustee
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan), or by
reason of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys’ fees), judgements, fines and amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom.


 


Indemnification may
include payment by the Corporation of expenses in defending an action or
proceeding in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by the person indemnified to repay such payment
if it is ultimately determined that such person is not entitled to
indemnification under this Article VII, which undertaking may be accepted
without reference to the financial ability of such person to make such
repayment.


 


The Corporation shall not
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person unless the initiation
thereof was approved by the Board of Directors.


 


The indemnification
rights provided in this Article VII (i) shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any law,
agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall
inure to the benefit of the heirs, executors and administrators of such
persons. The Corporation may, to the extent authorized from time to time by its
Board of Directors, grant indemnification rights to other employees or agents
of the Corporation or other persons serving the Corporation and such rights may
be equivalent to, or greater or less than, those set forth in this Article VII.


 


ARTICLE VIII


COMPROMISES AND
ARRANGEMENTS


 


Whenever a compromise or
arrangement is proposed between the Corporation and its creditors or any class
of them and/or between the Corporation and its stockholders or any Class of
them, any court of equitable jurisdiction within the State of Delaware may, on
the application in a summary way of the 


 

















 


Corporation or of any
creditor or stockholder thereof or on the application of any receiver or
receivers appointed for the Corporation under the provisions of Section 391
of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in
such a manner as the said court directs. If a majority of the number
representing three-fourths (3/4ths) in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such compromise or
arrangement, the compromise or arrangement and the said reorganization shall,
if sanctioned by the court to which the said application has been made, be
binding on all creditors or class of creditors, and/or stockholders or class of
stockholders of the Corporation, as the case may be, and also on the
Corporation.


 


ARTICLE IX


CERTAIN
TRANSACTIONS


 


The Board of Directors,
when considering a tender offer or merger or acquisition proposal, may take
into account factors in addition to potential economic benefits to
stockholders, including without limitation (i) comparison of the proposed
consideration to be received by stockholders in relation to the then current
market price of the Corporation’s capital stock, the estimated current value of
the Corporation in a freely negotiated transaction, and the estimated future
value of the Corporation as an independent entity, (ii) the impact of such
a transaction on the employees, suppliers, and customers of the Corporation and
its effect on the communities in which the Corporation operates, and (iii) the
impact of such a transaction on the unique corporate culture and atmosphere of
the Corporation.


 


ARTICLE X


STOCKHOLDER ACTION


 


Any action required or
permitted to be taken by the stockholders of the Corporation may be taken only
at a duly called annual or special meeting of the stockholders, and not by
written consent in lieu of such a meeting, and special meetings of stockholders
may be called only by the Chairman of the Board of Directors, the President, or
a majority of the Board of Directors.


 


ARTICLE XI


AMENDMENTS


 


The affirmative vote of
the holders of at least 67% of the outstanding voting stock of the Corporation
(in addition to any separate class vote that may in the future be required
pursuant to the terms of any outstanding Preferred Stock) shall be required to
amend or repeal the provisions of Articles IV (to the extent it relates to the
authority of the Board of Directors to issue shares of Preferred Stock in one
or more series, the terms of which may be determined by the Board of
Directors), V, VII, IX, X, or XI of this Amended and Restated Certificate of
Incorporation or to reduce the numbers of authorized shares of Common Stock or
Preferred Stock.


 


IN WITNESS WHEREOF, the
undersigned has caused this First Amended and Restated Certificate of
Incorporation to be duly executed on its behalf as of Nov. 16, 1999.


 


	
   

  	
  IBASIS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ofer Gneezy

  	
   

  
	
   

  	
   

  	
  Ofer Gneezy

  
	
   

  	
   

  	
  President

  



 

















 


CERTIFICATE OF AMENDMENT

TO THE

FIRST AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

iBASIS, INC.


 


Pursuant to § 242 of
the Delaware General Corporation Law of the State of Delaware


 


iBasis, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the “Corporation”),
does hereby certify:


 


A.    The name of the Corporation is iBasis, Inc.
and (i) the original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of Delaware on August 2, 1996 and (ii) the
First Amended and Restated Certificate of Incorporation of the corporation was
filed with the Secretary of State of Delaware on November 16, 1999 (the “Restated Certificate”).


 


B.    The following amendment to the Restated Certificate
has been duly adopted in accordance with the provisions of § 242 of the General
Corporation Law of the State of Delaware:


 


1.             That Article IV of the
Restated Certificate be and hereby is amended to increase the total number of
shares of Common Stock that the Corporation shall have authority to issue from
85,000,000 shares to 170,000,000 shares. Therefore, the total number of shares
of all classes of capital stock that the Corporation shall have authority to
issue is 185,000,000, consisting solely of:


 


	
  170,000,000

  	
   

  	
  shares of common stock,
  par value $0.001 per share

  
	
   

  	
   

  	
  (“Common Stock”); and

  
	
   

  	
   

  	
   

  
	
  15,000,000

  	
   

  	
  shares of preferred
  stock, par value $0.001 per share

  
	
   

  	
   

  	
  (“Preferred Stock”).

  



 


IN WITNESS WHEREOF, this
Certificate of Amendment of the First Amended and Restated Certificate of
Incorporation, which amends certain provisions of the First Amended and
Restated Certificate of Incorporation of the Corporation, having been duly
adopted in accordance with Section 242 of the Delaware General Corporation
Law, has been duly executed by the Corporation’s Secretary,
this 18 day of June, 2004.


 


 


	
   

  	
  By: 

  	
  /s/ Jonathan D. Draluck

  	
   

  
	
   

  	
   

  	
  Name: Jonathan D.
  Draluck

  
	
   

  	
   

  	
  Title: Vice President
  Business Affairs, General Counsel and Secretary

  



 

















 


CERTIFICATE OF AMENDMENT

OF

THE FIRST AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

IBASIS, INC.


 


Pursuant to § 242
of the General Corporation Law

of the State of Delaware


 


iBasis, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the “Corporation”),
does hereby certify:


 


A.   The name of the
Corporation is iBasis, Inc. The original Certificate of Incorporation was
filed with the Secretary of State of Delaware on August 2, 1996, the First
Amended and Restated Certificate of Incorporation was filed with the Secretary
of State of Delaware on November 16, 1999, and a Certificate of Amendment
to the First Amended and Restated Certificate of Incorporation was filed with
the Secretary of State of Delaware on June 18, 2004.


 


B.    The following
amendment to the Restated Certificate of Incorporation, as amended (the “Restated Certificate”) of the Corporation
has been duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware:


 


1.           Article IV of the Restated
Certificate is hereby amended such that each of the paragraphs immediately
preceding Article (IV)(A)—“COMMON STOCK”—shall be deleted and replaced in
its entirety with the following:


 


“The
total number of shares of all classes of stock which the Corporation shall have
authority to issue is 185,000,000 shares, consisting solely of:


 


170,000,000 shares of
common stock, par value $0.001 per share (“Common
Stock”); and


 


15,000,000 shares of
preferred stock, par value $0.001 per share (“Preferred
Stock”).


 


Simultaneously
with the effective date of the filing of this amendment to the Restated
Certificate (the “Split Effective Date”),
each three shares of common stock, par value $0.001 per share, of the
Corporation issued and outstanding or held as treasury shares immediately prior
to the Split Effective Date (the “Old Common
Stock”) shall automatically without any action on part of the holder
thereof, be reclassified and changed into one share of common stock, par value
$0.001 per share, which the Corporation shall be authorized to issue
immediately subsequent to the Split Effective Date (the “New Common Stock”). Each holder of a
certificate or certificates which immediately prior to the Split Effective Date
represented outstanding shares of Old Common Stock (the “Old Certificates”) shall, from and after
the Split Effective Date, be entitled to receive upon surrender of such Old
Certificates to the Corporation’s transfer agent for cancellation, a
certificate or certificates (the “New Certificates”)
representing the shares of New Common Stock into which the shares of Old Common
Stock formerly represented by such Old Certificates so surrendered are
reclassified under the terms hereof. No fractional shares of New Common Stock
of the Corporation shall be issued. No shareholder of the Corporation shall
transfer any fractional shares of Common Stock of the Corporation. The
Corporation shall not recognize on its stock record books any purported
transfer of any fractional share of Common Stock of the Corporation. Instead,
any fractional share shall be rounded up to the nearest whole share.


 


The
following is a statement of the powers, designations, preferences, privileges,
and relative rights in respect of each class of capital stock of the Corporation.”


 

















 


IN WITNESS WHEREOF, this
Certificate of Amendment of the First Amended and Restated Certificate of
Incorporation, which amends certain provisions of the First Amended and
Restated Certificate of Incorporation of the Corporation, having been duly adopted
in accordance with Section 242 of the Delaware General Corporation Law,
has been duly executed by its Secretary, this  second  day
of  May, 2006.


 


	
   

  	
  /s/ Jonathan Draluck

  
	
   

  	
  Jonathan Draluck,
  Secretary