AMENDMENT NO. l TO SHARE PURCHASE AND SALE AGREEMENT
EXHIBIT
3
AMENDMENT
NO. l TO SHARE PURCHASE AND SALE AGREEMENT
AMENDMENT
NO. 1 dated as of December 18, 2006 (the “Amendment”), to the Share Purchase and
Sale Agreement dated as of June 21, 2006 (the “Agreement”), between IBASIS,
INC., a Delaware corporation (“Seller”) and 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;
and
WHEREAS,
pursuant to Section 10.13 of the Agreement, Seller and Purchaser desire to
amend
the Agreement to confirm access to certain information of Seller and extend
the
Outside Date of the Agreement.
NOW,
THEREFORE, the parties hereby agree as follows:
SECTION
1. Amendment
to Article V of the Agreement. Article V of the Agreement is hereby amended
by inserting the following as Section 5.21 of the Agreement:
“SECTION
5.21. Seller Stock Option Review. (a) Without
limiting any other provision of the Agreement, Seller shall provide Purchaser
with regular and timely updates and information on its review related to
the
granting of stock options to the employees of Seller, the timing of such
grants.
their relating accounting and tax treatment and all regulatory and legal
proceedings and developments relating thereto (the “Stock Option Review”)
and shall cooperate with Purchaser in Purchaser’s efforts to conduct its due
diligence on the Stock Option Review.
(b) Seller
shall, and shall cause its affiliates to, afford to Purchaser and its
accountants, counsel and other representatives access, upon reasonable prior
notice during normal business hours during the period prior to the Closing,
to
the documents, records, correspondence and other material relating to the
Stock
Option Investigation. Nothing contained in this Section 5.21 shall obligate
Seller or any of its affiliates to breach any duty of confidentiality owed
to
any person whether such duty arises contractually, statutorily or otherwise,
or
to provide access to any documents, records, correspondence or other material
to
the extent that the provision of such access could cause the Seller or any
of
its officers,directors or employees to lose any attorney/client privilege
with
respect to such documents or the information contained therein.
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 April 30th,
2007 (the “Outside Date”);”.
SECTION
3. Agreement. Except
as specifically amended by this Amendment, 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 rights or
claims by either Seller or Purchaser existing prior to or arising after the
date
hereof under the Agreement. Afterthe 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.
This
Amendment and the Agreement shall constitute the entire agreement of the
parties
with respect to the subject matter hereof.
SECTION
4. 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
5. 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.
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 TELECOM B.V., | |||
|
|
By:
|
/s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | |||
| Title: Member of the Board | |||
