AMENDMENT NO.2 TO SHARE PURCHASE AND SALE AGREEMENT
EXHIBIT
4
AMENDMENT
NO.2 TO SHARE PURCHASE AND SALE AGREEMENT
AMENDMENT
NO. 2 dated
as of April 26, 2007 (the “Amendment”), to the Share Purchase and
Sale Agreement dated as of June 21, 2006, as amended by Amendment No. 1 dated
as
of December 18, 2006 (the “Agreement”), between IBASIS, INC., a Delaware
corporation (“Seller”) and KPN B.V., (formerly KPN Telecom B.V.) a
private limited liability company with its registered office at Xxxxxxxxx
00,
Xxx Xxxxx, and incorporated under the laws of the Netherlands
(“Purchaser”). Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Agreement.
WHEREAS,
Seller and Purchaser entered into that certain Agreement on June 21,
2006;
WHEREAS,
Seller and Purchaser amended the Agreement on December 18, 2006, to confirm
access to certain information of Seller and extend the Outside Date of
the Agreement; and
WHEREAS,
pursuant to Section 10.13 of the Agreement, Seller and Purchaser desire to
further amend the Agreement and extend the Outside Date of the
Agreement.
NOW,
THEREFORE, the parties hereby agree as follows:
SECTION
1. Amendment to Article VI of the Agreement. Article VI of
the Agreement is hereby amended by inserting the following as Section 6.02(f)
of
the Agreement:
“(f)
No Seller Material Adverse Change. Since the date of
Amendment No. 2, dated as of April 26, 2007, to the Agreement (the “Second
Amendment”) and without limiting any other provision herein, there shall not
have occurred any change, event, circumstance or development that has had,
or
can reasonably be expected to have, a Seller Material Adverse
Change.
As
used
herein, “Seller Material Adverse Change” means a material adverse change
in (i) the investigation being conducted by the SEC related to the stock
option
practices including but not limited to related tax or accounting issues of
Seller as such investigation relates to the Seller or its Chief Executive
Officer and/or Executive Vice President, (ii) the review of the Listing on
Nasdaq by the Nasdaq Listing and Hearing Review Council resulting in the
delisting of Seller’s securities, or (iii) the information related to the stock
option practices including but not limited to related tax or accounting issues
and the related reviews or investigations of Seller disclosed in Seller SEC
filings or which have otherwise
been disclosed to Purchaser in each case, prior to the Second
Amendment.”
SECTION
2. Amendment to Section 7.01(iv) of the Agreement. Section
7.01(iv) of the Agreement is hereby amended and restated in its entirety
to read
as follows:
“(iv)
by Seller or
Purchaser, if the Closing does not occur
on
or prior to October 31, 2007 (the “Outside Date”);”.
SECTION
3. Waiver. Purchaser hereby waives any breach of the
representations, warranties and covenants of the Seller contained in Articles
III and V of the Agreement but only to the extent that the inaccuracy of
such
representations, warranties
and covenants arises out of the facts, circumstances and practices relating
to
the Seller’s historical stock option granting practices, including but not
limited to related tax and accounting issues, that have been previously
disclosed in Seller SEC filings or which have been otherwise disclosed to
Purchaser in each case prior to the Second Amendment.
SECTION
4. Agreement. Except as specifically amended hereby, the
Agreement shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. This Amendment is
without
prejudice to any other rights or claims by either Seller or Purchaser existing
prior to or after the date hereof under the Agreement. After the date hereof,
any reference to the Agreement shall mean the Agreement as amended hereby.
In
the event of any inconsistency or conflict between the terms and provisions
of
the Agreement and this Amendment, the terms and provisions of this Amendment
shall govern and be binding. The terms and provisions contained in this
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION
5. Governing Law. This Amendment and any disputes arising
under or related hereto (whether for breach of contract, tortious conduct
or
otherwise) shall be governed and construed in accordance with the laws of
the
State of New York,
without
reference to its conflicts of law principles.
SECTION
6. Counterparts. This Amendment may be executed in one or
more counterparts, all of which
shall
be considered one and the same agreement, and shall become effective when
one or
more counterparts have been signed by each of the parties hereto and delivered,
in person, by facsimile, or by electronic image scan.
2
IN
WITNESS WHEREOF, Seller and Purchaser have duly executed this Amendment as
of
the date first written above.
| IBASIS, INC., | |||
|
|
By:
|
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |||
| Title: President & CEO | |||
| KPN B.V., | |||
|
|
By:
|
/s/ Xxxxx Farwerck | |
| Name: Xxxxx Farwerck | |||
|
Title:
Director Wholesale & Operations,
by
virtue of Power of Attorney
|
|||
