Exhibit 10.1
NOTE REPURCHASE, EXCHANGE AND TERMINATION AGREEMENT
by and among
iBASIS, INC.
and
THE NOTEHOLDER SIGNATORIES HERETO
Dated as of April 27, 2004
REPURCHASE OF $25,175,000 PRINCIPAL AMOUNT OF SENIOR SECURED NOTES
and
ISSUANCE OF WARRANTS TO PURCHASE
5,176,065 SHARES OF COMMON STOCK
This NOTE REPURCHASE, EXCHANGE AND AMENDMENT AGREEMENT, dated as of April 27,
2004 (this "Agreement"), is by and among iBASIS, INC., a Delaware corporation
(the "Company"), and the holders of the Notes (as defined below), identified on
the signature pages hereto (the "Noteholders").
WHEREAS, the Company desires to repurchase an aggregate principal amount of
$25,175,000 of the Company's 11.5% Senior Secured Notes due 2005 (the "Notes")
from the Noteholders, and the Noteholders desire to tender such Notes to the
Company in exchange for (i) payment in cash of the sum of (A) 100% of the
aggregate outstanding principal amount of the Notes being prepaid and (B)
accrued and unpaid interest on such prepaid principal amount to the prepayment
date, and (ii) warrants (the "Warrants") to purchase a number of shares of
Common Stock, $0.001 par value, of the Company (the "Common Stock") equal to (x)
the aggregate principal amount of the Notes being prepaid, multiplied by (y)
0.2056033.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
1.
DEFINITIONS; CERTAIN RULES OF
CONSTRUCTION.
CERTAIN CAPITALIZED TERMS ARE USED IN THIS AGREEMENT AND IN THE
OTHER DOCUMENTS WITH THE SPECIFIC MEANINGS DEFINED BELOW IN THIS SECTION 1.
EXCEPT AS OTHERWISE EXPLICITLY SPECIFIED TO THE CONTRARY OR UNLESS THE CONTEXT
CLEARLY REQUIRES OTHERWISE, (A) THE CAPITALIZED TERM "SECTION" REFERS TO
SECTIONS OF THIS AGREEMENT, (B) THE CAPITALIZED TERM "EXHIBIT" REFERS TO
EXHIBITS TO THIS AGREEMENT, (C) REFERENCES TO A PARTICULAR SECTION INCLUDE ALL
SUBSECTIONS THEREOF, (D) THE WORD "INCLUDING" SHALL BE CONSTRUED AS "INCLUDING
WITHOUT LIMITATION," (E) ACCOUNTING TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE
MEANING PROVIDED UNDER GAAP, (F) REFERENCES TO A PARTICULAR STATUTE OR
REGULATION INCLUDE ALL RULES AND REGULATIONS THEREUNDER AND ANY SUCCESSOR
STATUTE, REGULATION OR RULES, IN EACH CASE AS FROM TIME TO TIME IN EFFECT, (G)
REFERENCES TO A PARTICULAR PERSON INCLUDE SUCH PERSON'S SUCCESSORS AND ASSIGNS
TO THE EXTENT NOT PROHIBITED BY THIS AGREEMENT AND THE OTHER DOCUMENTS AND (H)
REFERENCES TO "DOLLARS" OR "$" MEAN UNITED STATES FUNDS.
REFERENCES TO "THE
DATE HEREOF" MEAN THE DATE FIRST SET FORTH ABOVE.
"Agreement" is defined in the preamble hereto.
"Book-Entry Security" is defined in Section 2.2 hereof.
"Closing" is defined in Section 2.4 hereof.
"Closing Date" means the date on which the transactions contemplated by the New
Financing are consummated.
"Code" means the Internal Revenue Code of 1986.
"Common Stock" is defined in the preamble hereto.
"Company" is defined the preamble to this Agreement.
"Control" means, with respect to any Person, the possession, directly or
indirectly, of the power to (a) vote 10% or more of the capital securities
ordinary voting power for the election of directors of such Person