Schedule 13-D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T6vMbmJDXCcU5FjdIUyv0+oOeCh67qM5jh24Z3/GHjEt/6Ng3ZPrIdF2sLvhTA34 vmNI+8pTJxQqtqOMffpoOA== 0000950157-06-000650.txt : 20060629 0000950157-06-000650.hdr.sgml : 20060629 20060629154543 ACCESSION NUMBER: 0000950157-06-000650 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060629 DATE AS OF CHANGE: 20060629 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KONINKLIJKE KPN N V CENTRAL INDEX KEY: 0001001474 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: MAANPLEIN 55 CITY: THE HAGUE STATE: P7 ZIP: 2516 CK MAIL ADDRESS: STREET 1: P.O. BOX 30000 CITY: THE HAGUE STATE: P7 ZIP: 2500 GA FORMER COMPANY: FORMER CONFORMED NAME: ROYAL PTT NEDERLAND N V DATE OF NAME CHANGE: 19950927 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IBASIS INC CENTRAL INDEX KEY: 0001091756 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 043332534 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-57187 FILM NUMBER: 06933688 BUSINESS ADDRESS: STREET 1: 20 SECOND AVE CITY: BURLINGTON STATE: MA ZIP: 01803 BUSINESS PHONE: 7815057500 MAIL ADDRESS: STREET 1: 20 SECOND AVE CITY: BURLINGTON STATE: MA ZIP: 01803 SC 13D 1 sch13d.htm SCHEDULE 13-D Schedule 13-D

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(A)

(AMENDMENT NO. N/A)

IBASIS, INC.

(Name of Issuer)

COMMON STOCK

(Title of Class of Securities)

450732102

(CUSIP Number)

Michiel Roovers

Koninklijke KPN N.V.

Maanplein 55

2516 CK, The Hague, The Netherlands

+31 70 446 1161

Copy to:

Philip J. Boeckman, Esq.

Cravath, Swaine & Moore LLP

City Point, One Ropemaker Street

London EC2Y 9HR, United Kingdom

+44 20 7453 1000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 20, 2006

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f), 13d-1(g), check the following box. □

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §§240.13d−7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

(Continued on following pages)

(Page 1 of 8 Pages)

1	NAMES OF REPORTING PERSONS Koninklijke KPN N.V. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) N/A
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) □ (See Instructions) (b) ý*
3	SEC USE ONLY
4	SOURCE OF FUNDS (See Instructions) N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)or 2(e) o
6	CITIZENSHIP OR PLACE OF ORGANIZATION THE NETHERLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER	0
		8	SHARED VOTING POWER	12,030,926**
		9	SOLE DISPOSITIVE POWER	0
		10	SHARED DISPOSITIVE POWER	12,030,926**
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON				12,030,926**
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)				o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (See Instructions)				36.0%**
14	TYPE OF REPORTING PERSON				CO

	*	See Item 4.
	**	Pursuant to Rule 13d-4 of the Securities Act of 1933, as amended (the “Act”), the Reporting Person disclaims beneficial ownership of such shares, and this Schedule 13D shall not be construed as an admission that the Reporting Person is the beneficial owner of any securities covered by this Schedule 13D.

1	NAMES OF REPORTING PERSONS KPN TELECOM B.V. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) N/A
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) □ (See Instructions) (b) ý*
3	SEC USE ONLY
4	SOURCE OF FUNDS (See Instructions) N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d)or 2(e) o
6	CITIZENSHIP OR PLACE OF ORGANIZATION THE NETHERLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER	0
		8	SHARED VOTING POWER	12,030,926**
		9	SOLE DISPOSITIVE POWER	0
		10	SHARED DISPOSITIVE POWER	12,030,926**
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON			12,030,926**
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)			o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (See Instructions)			36.0%**
14	TYPE OF REPORTING PERSON			CO

	*	See Item 4.
	**	Pursuant to Rule 13d-4 of the Act, the Reporting Person disclaims beneficial ownership of such shares, and this Schedule 13D shall not be construed as an admission that the Reporting Person is the beneficial owner of any securities covered by this Schedule 13D.

ITEM 1. SECURITY AND ISSUER

This Schedule 13D relates to the common stock, par value $.001 per share (the “Common Stock”), of iBasis, Inc. (the “Issuer”), a corporation organized under the laws of the State of Delaware, whose principal executive office is at 20 Second Avenue, Burlington, MA 01803.

ITEM 2. IDENTITY AND BACKGROUND

This Schedule 13D is filed on behalf of Koninklijke KPN N.V. (“KPN”), a company incorporated under the laws of the Netherlands, and KPN Telecom B.V. (“KPN Telecom”), a Dutch limited liability company incorporated in the Netherlands. The registered offices of both KPN and KPN Telecom are located at Maanplein 5, The Hague, Netherlands. KPN Telecom is a wholly-owned subsidiary of KPN.

KPN and KPN Telecom are telecommunications companies with business network services and data transport throughout Western Europe.

During the last five years, neither KPN, nor KPN Telecom, nor, to their knowledge, any of their executive officers or directors (as set forth in Schedule A), has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

Each of Ofer Gneezy and Gordon VanderBrug and collectively LC Capital Master Fund, Ltd., Loeb Partners Corporation and Singer Children’s Management Trust (together, the “Stockholders”), on the one hand and solely in their capacity as a stockholder of the Issuer, and KPN Telecom, on the other hand, has entered into a Shareholder Voting Agreement (described in Item 4 of this Schedule) (collectively, the “Voting Agreements”) with respect to certain shares of Common Stock beneficially owned by the Stockholders. No shares of the Common Stock were purchased by KPN Telecom pursuant to the Voting Agreements, and thus no funds were used for such purpose.

ITEM 4. PURPOSE OF TRANSACTION

The purpose of KPN Telecom’s entering into the Voting Agreements covering the shares of Common Stock to which this Schedule 13D relates is to facilitate the transactions contemplated by the Share Sale and Purchase Agreement dated as of June 20, 2006, between the Issuer and KPN Telecom (the “Share Purchase Agreement”).

Pursuant to the Share Purchase Agreement, KPN Telecom agreed to acquire from the Issuer a number of newly issued shares (the "Share Issuance") of Common Stock such that after such issuance KPN Telecom will own 51.00% of the shares of Common Stock on a fully-diluted basis, in exchange for: (i) all of the issued and outstanding shares of a newly created subsidiary of KPN Telecom, which will be a private limited liability company organized under the laws of the Netherlands (the “New Subsidiary”), (ii) all of the issued and outstanding shares of a U.S. subsidiary of an affiliate of the New Subsidiary and (iii) U.S. $55,000,000 in cash. The stockholders of record of the Issuer immediately prior to the closing of the transactions will receive a dividend of $113,000,000 immediately following the closing of the transactions.

Consummation of the transactions is subject to various conditions, including, among other things: (a) approval of the Share Issuance by the stockholders of the Issuer and (b) the receipt and satisfaction of all required regulatory approvals, notices and applicable waiting periods.

The following is a description of the relationship among KPN Telecom and the Stockholders under the Voting Agreements, however, it is not an affirmation by KPN Telecom of the existence of a group for purposes of Section 13(d)(3) or Section 13(g)(3) of the Act, or Rule 13d-5(b)(1) thereunder. Pursuant to Rule 13d-4 of the Act, KPN and KPN Telecom disclaim beneficial ownership of the shares of Common Stock covered by this Schedule 13D.

In order to induce KPN Telecom to enter into the Share Purchase Agreement, the Stockholders entered into the Voting Agreements with KPN Telecom. Pursuant to the Voting Agreements, each of the Stockholders agreed, among other things and subject to certain restrictions, to vote (or cause to be voted) all of the shares of Common Stock owned by each Stockholder (a) in favor of the approval of the Share Issuance and (b) against any proposal, action or transaction involving the Issuer or any of its subsidiaries or any of its stockholders, which proposal, action or transaction would in any manner impede, frustrate, prevent or delay the consummation of the transactions contemplated by the Share Purchase Agreement or change in any manner the voting rights of the holders of the shares of capital stock of the Issuer.

Each of Mr. Gneezy and Mr. VanderBrug has also granted KPN Telecom an irrevocable proxy to vote their shares of Common Stock as provided for in the applicable Voting Agreement. Each proxy will automatically expire upon the termination of each Voting Agreement. Each Voting Agreement will terminate upon the earlier (subject to extension in certain circumstances) to occur of (i) the closing of the transactions contemplated by the Share Purchase Agreement and (ii) the termination of the Share Purchase Agreement in accordance with its terms.

The board of directors of the Issuer has adopted a resolution to amend the by-laws of the Issuer effective at the closing of the transactions contemplated by the Share Purchase Agreement. Such by-laws, once effective, will include certain agreed upon governance mechanics. The number of directors constituting the whole Board of Directors will be seven. The seven-member board of directors will consist of five of the current directors and KPN will appoint two non-executive directors.

The foregoing descriptions of the transactions contemplated by the Voting Agreements and the Share Purchase Agreement are qualified in their entirety by reference to the respective agreements.

Except as set forth in this Schedule 13D, the Voting Agreements and the Share Purchase Agreement, neither KPN, nor KPN Telecom, nor, to the knowledge of KPN and KPN Telecom, any of the executive officers and directors named on Schedule A attached hereto, has any plans or proposals that relate to or would result in or relate to any of the actions specified in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

ITEM 5. INTEREST IN THE SECURITIES OF THE ISSUER

(a) The Issuer has informed KPN and KPN Telecom that there were 33,439,279 shares of Common Stock outstanding as of the close of business on June 20, 2006. As a result of the Voting Agreements, KPN Telecom may be deemed to have beneficial ownership of 12,030,926 shares, or 36.0%, of the outstanding Common Stock. KPN, as the owner of 100% of the capital stock of KPN Telecom, may be deemed to be the beneficial owner of the 12,030,926 shares, or 36.0%, of the outstanding Common Stock deemed to be beneficially owned by KPN Telecom. KPN and KPN Telecom hereby disclaim beneficial ownership of the shares of Common Stock covered by this Schedule 13D, and this Schedule 13D shall not be construed as an admission that either KPN or KPN Telecom, for any or all purposes, is the beneficial owner of such shares of Common Stock.

To the knowledge of KPN and KPN Telecom, no executive officer or director named on Schedule A attached hereto beneficially owns any shares of Common Stock.

(b) Pursuant to the Voting Agreements, KPN Telecom may be deemed to have shared voting or dispositive power with respect to: (i) 4,199,975 shares with Mr. Ofer Gneezy (includes 50,000 shares held by The Ofer Gneezy 1999 Family Trust for the benefit of Mr. Gneezy’s children for which Mr. Gneezy disclaims beneficial ownership of the shares of Common Stock held by The Ofer Gneezy 1999 Family Trust, and 93,543 shares subject to stock options exercisable within 60 days of June 20, 2006); (ii) 1,661,188 shares with Dr. Gordon VanderBrug (includes 1,177,345 shares held by the G.J. & C.E. VanderBrug Family Limited Partnership for which Dr. VanderBrug disclaims beneficial ownership of the shares held by the G.J. & C.E. VanderBrug Family Limited Partnership, and 84,166 shares subject to stock options exercisable within 60 days of June 20, 2006); (iii) 2,270,161 shares with LC Capital Master Fund, Ltd. (excludes the number of shares issuable upon exercise of warrants within 60 days of June 20, 2006); (iv) 1,692,291 shares with Loeb Partners Corporation (excludes the number of shares issuable upon exercise of warrants within 60 days of June 20, 2006); and (v) 2,207,311 shares with Singer Chidren’s Management Trust (excludes the number of shares issuable upon exercise of warrants within 60 days of June 20, 2006). KPN and KPN Telecom (i) are not entitled to any rights as a stockholder of the Issuer as to the shares of Common Stock covered by this Schedule 13D, except pursuant to the proxies granted under the Voting Agreements, and (ii) disclaim any beneficial ownership of the shares of Common Stock covered by this Schedule 13D.

The information required by Item 2 relating to the Stockholders is set forth in Schedule B attached hereto and consists of information contained in the Proxy Statement on Schedule 14A filed by the Issuer on March 21, 2006. Although KPN and KPN Telecom have no reason to believe that such information was not reliable as of its date, KPN and KPN Telecom only accept responsibility for accurately reproducing such information and accept no further or other responsibility for such information. In addition, KPN and KPN Telecom make no representation or warranty with respect to the accuracy or completeness of such information or any representation or warranty, and the filing of this Schedule 13D shall not create any implication under any circumstances that there have been no events, or that there is no other information, including events or information not yet publicly disclosed by any of the Stockholders, which may affect the accuracy or completeness of such information.

(c) Other than as disclosed in this Schedule 13D, neither KPN, nor KPN Telecom, nor any executive officer or director named on Schedule A attached hereto, has effected any transaction in the Common Stock during the past 60 days. The descriptions of the transactions contemplated by the Voting Agreements and the Share Purchase Agreement are qualified in their entirety by reference to the respective agreements.

(d) Not Applicable.

(e) Not Applicable.

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

See “Item 4. Purpose of Transaction” for a description of the Voting Agreements and the Share Purchase Agreement, which are qualified in their entirety by reference to the respective agreements. Copies of the Voting Agreements are filed as Exhibits 2-4. Exhibits 2-4 are specifically incorporated herein by reference in answer to this Item 6.

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. The following are attached as exhibits:

Exhibit 1	Joint Filing Agreement as required by Rule 13d−1 under the Securities Exchange Act of 1934.
Exhibit 2	Shareholder Voting Agreement dated as of June 20, 2006, between KPN Telecom B.V. and Ofer Gneezy.
Exhibit 3	Shareholder Voting Agreement dated as of June 20, 2006, between KPN Telecom B.V. and Gordon VanderBrug.
Exhibit 4	Shareholder Voting Agreement dated as of June 20, 2006, between KPN Telecom B.V., LC Capital Master Fund, Ltd., Loeb Partners Corporation and Singer Children’s Management Trust.

SIGNATURE

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned hereby certify as of June 29, 2006, that the information set forth in this statement is true, complete and correct.

KONINKLIJKE KPN N.V.,
by
	/s/ Leon J. Merkun
	Name: L.J. Merkun
	Title: Treasurer, Director M&A

KPN TELECOM B.V.,
by: KONINKLIJKE KPN N.V., its sole director
	/s/ Leon J. Merkun
	Name: L.J. Merkun
	Title: Treasurer, Director M&A

SCHEDULE A

DIRECTORS AND EXECUTIVE OFFICERS

The name, position, principal business address and present principal occupation or employment of each of the directors and officers of Koninklijke KPN N.V. and KPN Telecom B.V. are set forth below. Each person identified is a Dutch citizen, with the exception of Mr. Eustace, who is a citizen of both of the United Kingdom and Canada, Mr. Bischoff, who is a citizen of Germany, and Mr. Jager, who is both a Dutch and a U.S. citizen.

Koninklijke KPN N.V.

Name	Position	Present Principal Occupation	Principal Business Address
A.H.J. Risseeuw	Chairman of Supervisory Board	Retired from Getronics in May 1999	Dijsselhofplantsoen 10, 1077 BL Amsterdam the Netherlands
D.G. Eustace	Vice-Chairman of Supervisory Board	Chairman of the Board of Smith & Nephew Plc.	Smith & Nephew Plc. 15 Adam Street London WC2 N6LA United Kingdom
M. Bischoff	Member of Supervisory Board	Chairman of the Board of EADS N.V.	EADS N.V. D-81663 Munich Germany
V. Halberstadt	Member of Supervisory Board	Professor of Economics at University of Leiden	Maanplein 55 2516 CK, The Hague the Netherlands
D.I. Jager	Member of Supervisory Board	Retired from Procter & Gamble Company	The Procter & Gamble Company 1 Procter & Gamble Plaza Cincinnati, Ohio 45202 USA
M.E. van Lier Lels	Member of Supervisory Board	Member of Supervisory Board (May 2001-present)	Maanplein 55 2516 CK, The Hague the Netherlands
J.B.M. Streppel	Member of Supervisory Board	Member of Executive Board and Chief Financial Officer of Aegon N.V.	Aegon N.V. P.O. Box 202 2501 CE The Hague the Netherlands

A.J. Scheepbouwer	Chief Executive Officer and Chairman of Management Board	Chairman of Management Board and Chief Executive Officer of KPN (November 2001-present)	Maanplein 55 2516 CK, The Hague the Netherlands
M.H.M. Smits	Chief Financial Officer and Member of Management Board	Chief Financial Officer of KPN (September 2004-present)	Maanplein 55 2516 CK, The Hague the Netherlands
E. Blok	Member of Management Board	June 2006-present	Maanplein 55 2516 CK, The Hague the Netherlands
S.P. Miller	Member of Management Board	June 2006-present	Maanplein 55 2516 CK, The Hague the Netherlands

KPN Telecom B.V.

Koninklijke KPN

N.V.*

Director

N.A.

*The sole director of KPN Telecom B.V. is Koninklijke KPN N.V. The directors of Koninklijke KPN N.V. are set forth above.

SCHEDULE B

CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF IBASIS, INC.

The name, position, principal business address and present principal occupation or employment of certain stockholders of iBasis, Inc. as required by Item 2 of Schedule 13D is set forth below. Each person identified is a U.S. citizen.

IBASIS, INC.

Name	Position (if applicable)	Present Principal Occupation (if applicable)	Principal Business Address
LC Capital Master Fund, Ltd.	n/a	n/a	c/o Trident Fund Services (B.V.I.) Limited P.O. Box 146 Waterfront Drive Wickhams Cay Road Town, Tortola British Virgin Islands
Singer Children’s Management Trust	n/a	n/a	c/o Romulus Holdings, Inc. 560 Sylvan Ave Englewood Cliffs, NJ 07632
Loeb Partners Corporation	n/a	n/a	61 Broadway New York, NY 10006
Ofer Gneezy	President and Chief Executive Officer	President and Chief Executive Officer	iBasis, Inc. 20 Second Avenue Burlington, Massachusetts 01803
Gordon J. VanderBrug	Executive Vice President, Assistant Secretary and Director	Executive Vice President, Assistant Secretary and Director	iBasis, Inc. 20 Second Avenue Burlington, Massachusetts 01803

To the knowledge of KPN and KPN Telecom, none of the Stockholders has during the last five years (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

EX-99.1 2 ex99-1.htm EXHIBIT 99.1 Exhibit 1 - Joint Filing Agreement

EXHIBIT 1

JOINT FILING AGREEMENT

The undersigned hereby consent to the joint filing by any of them of a Statement on Schedule 13D and any amendments thereto, whether heretofore or hereafter filed, relating to the securities of iBasis, Inc., and hereby affirm that this Schedule 13D is being filed on behalf of each of the undersigned.

Dated: June 29, 2006

KONINKLIJKE KPN N.V.,
by
	/s/ Leon J. Merkun
	Name: L.J. Merkun
	Title: Treasurer, Director M&A

KPN TELECOM B.V.,
by: KONINKLIJKE KPN N.V., its sole director
	/s/ Leon J. Merkun
	Name: L.J. Merkun
	Title: Treasurer, Director M&A

EX-99.2 3 ex99-2.htm EXHIBIT 99.2 Exhibit 2 -Shareholder Voting Agreement

EXHIBIT 2

SHAREHOLDER VOTING AGREEMENT

among

KPN TELECOM B.V.

and

THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO

Dated as of June 20, 2006

TABLE OF CONTENTS

Page

SECTION 1. Representations and Warranties of the Shareholders	1
SECTION 2. Representations and Warranties of Purchaser	2
SECTION 3. Covenants of the Shareholder	3
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy	4
SECTION 5. Further Assurances	4
SECTION 6. Certain Events	4
SECTION 7. Assignment	5
SECTION 8. Termination	5
SECTION 9. General Provisions	5
SECTION 10. Jurisdiction	7
SECTION 11. Service of Process	7
SECTION 12. Waiver of Jury Trial	7
SECTION 13. Headings	8

SHAREHOLDER VOTING AGREEMENT dated as of June 20, 2006 (this “Agreement”), among KPN TELECOM B.V., a private limited liability company with its registered office at The Maanplein 55, The Hague, and incorporated under the laws of the Netherlands (“Purchaser”), and THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO (such persons are individually referred to herein as a “Shareholder” and collectively as the “Shareholders”).

WHEREAS Purchaser and Volcano, a Delaware corporation (the “Company”), propose to enter into a Share Purchase and Sale Agreement dated as of the date hereof (as the same may be amended or supplemented, the “Share Purchase Agreement”), providing for the purchase by the Purchaser of newly issued ordinary shares of common stock, par value $0.001 per share (the “Shares”), that shall represent, immediately after issuance, 51% of the Fully Diluted number of shares of Common Stock of the Company at the close of business on the day before the Closing Date, in exchange for (i) all of the issued and outstanding shares of the newly created subsidiary of Purchaser that, together with its subsidiaries and WVS-I U.S., encompasses Purchaser’s international traffic trading business and (ii) $55,000,000 in cash, upon the terms and subject to the conditions set forth in the Share Purchase Agreement;

WHEREAS each Shareholder owns (of record and beneficially) the number of shares of capital stock of the Company set forth on Schedule A hereto (such shares of capital stock of the Company, together with any other shares of capital stock of the Company subsequently acquired (of record or beneficially) by such Shareholder, the “Subject Shares”); and

WHEREAS as a condition to its willingness to enter into the Share Purchase Agreement, Purchaser has required that the Shareholders enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein and in the Share Purchase Agreement, the parties hereto agree as follows. Terms used but not defined herein shall have the meaning set forth in the Share Purchase Agreement:

SECTION 1. Representations and Warranties of the Shareholders. Each Shareholder, severally and not jointly, hereby represents and warrants to Purchaser as follows:

(a) Execution and Delivery; Enforceability. This Agreement has been duly executed and delivered by such Shareholder and, assuming the due execution and delivery by Purchaser, this Agreement constitutes a legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and to general

equitable principles. The execution and delivery by such Shareholder of this Agreement and the consummation of the transactions contemplated by this Agreement and compliance by such Shareholder with the provisions of this Agreement do not and will not conflict with, or result in any breach of, or constitute default under, or result in the creation of any Lien upon any of the Subject Shares of such Shareholder under, any provision of (i) its organizational documents, if applicable, (ii) any Contract to which such Shareholder is a party or by which any of its properties or assets is bound or (iii) any Judgment or Applicable Law applicable to such Shareholder or its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect on the ability of such Shareholder to perform its obligations under this Agreement. No Consent of, or registration, declaration or filing with, any Governmental Entity is required to be obtained or made by or with respect to such Shareholder in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement, other than (A) such filings under the Exchange Act as may be required in connection with this Agreement and the transactions contemplated in this Agreement and (B) such other consents, approvals, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made individually or in the aggregate would not or would not reasonably be expected to impair in any material respect the ability of such Shareholder to perform his obligations under this Agreement or prevent the consummation of any of the transactions contemplated by this Agreement.

(b) The Subject Shares. Such Shareholder is the record and beneficial owner of, and has good and marketable title to, the Subject Shares set forth by the name of such Shareholder on Schedule A. Such Shareholder has the sole right to vote such Subject Shares, and such Subject Shares are not subject to any proxies, voting trust or other agreement, understanding, arrangement or restriction with respect to the voting of such Subject Shares, except as contemplated by this Agreement and arising under Federal or state securities laws.

SECTION 2. Representations and Warranties of Purchaser. Purchaser represents and warrants to each Shareholder as follows:

(a) Organization and Authority. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has full corporate power and authority to conduct its business as presently conducted.

(b) Authorization; Noncontravention. Purchaser has full corporate power and authority to execute this Agreement and to consummate the transactions contemplated to be consummated by it by this Agreement. Purchaser has duly executed and delivered this Agreement and, assuming the due execution and delivery by each Shareholder, this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and to general equitable principles. The execution and delivery by

Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated to be consummated by it by this Agreement do not and will not conflict with, or result in any breach of or constitute a default under, or result in the creation of any Lien upon any of the shares of Purchaser under, any provision of (i) its organizational documents, (ii) any Contract to which Purchaser is a party or by which any of its properties or assets is bound or (iii) any Judgment or Applicable Law applicable to Purchaser or its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such items that, individually or in the aggregate, have not had and could not reasonably be expected to have a material adverse effect on Purchaser.

SECTION 3. Covenants of the Shareholder. Each Shareholder, severally and not jointly, covenants and agrees as follows:

(a) At any meeting of the shareholders of the Company called to vote upon the Share Purchase Agreement, the Share Issuance or any of the other transactions or matters contemplated by the Share Purchase Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to the Share Purchase Agreement, the Share Issuance or any of the other transactions or matters contemplated by the Share Purchase Agreement is sought, such Shareholder shall vote (or cause to be voted) all of such Shareholder’s Subject Shares in favor of, and shall consent to (or cause to be consented to), the approval of the Share Purchase Agreement, the Share Issuance and the terms thereof and each of the other transactions and matters contemplated by the Share Purchase Agreement.

(b) At any meeting of the shareholders of the Company or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent) of the shareholders of the Company is sought, such Shareholder shall vote (or cause to be voted) all of such Shareholder’s Subject Shares against, and shall not consent to (and shall cause not to be consented to with respect to such Subject Shares) any proposal, action or transaction involving the Company or any of its subsidiaries or any of its shareholders, which proposal, action or transaction would in any manner impede, frustrate, prevent or delay the consummation of the transactions contemplated by the Share Purchase Agreement or this Agreement or change in any manner the voting rights of the holders of the shares of capital stock of the Company (collectively, “Frustrating Transactions”).

(c) Until the date of the Closing, such Shareholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, “Transfer”), or consent to or permit any Transfer of, any Subject Shares or any interest therein, or enter into any loan or credit agreement, bond, debenture, note, mortgage, indenture, lease or other contract, commitment, agreement, option, instrument, arrangement, understanding, obligation or undertaking, with respect to the Transfer (including any profit sharing or other derivative arrangement) of any Subject Shares or any interest therein, to any person, unless prior to any such Transfer the transferee of such Subject Shares enters into a shareholder voting agreement with Purchaser on terms substantially identical to the terms of this Agreement or (ii) enter into any voting

arrangement, whether by proxy, voting agreement or otherwise, with respect to any Subject Shares and shall not commit or agree to take any of the foregoing actions, other than pursuant to this Agreement. Such Shareholder shall not, nor shall such Shareholder permit any entity under such Shareholder’s control to, deposit any Subject Shares in a voting trust.

SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Each Shareholder hereby irrevocably grants to, and appoints, Purchaser and any individual designated in writing by Purchaser, such Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Shareholder, to vote all of the Subject Shares, or grant a consent or approval in respect of the Subject Shares, (i) in favor of the approval of the Share Purchase Agreement, the Share Issuance and each of the other transactions and matters contemplated by the Share Purchase Agreement, (ii) against any Frustrating Transaction and (iii) otherwise in accordance with Section 3 of this Agreement. Each Shareholder understands and acknowledges that Purchaser is entering into the Share Purchase Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement.

(b) Each Shareholder represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that all such proxies are hereby revoked.

(c) Each Shareholder hereby affirms that the irrevocable proxy set forth in this Section 4 is given in connection with the Share Purchase Agreement, the Share Issuance and each of the other transactions and matters contemplated by the Share Purchase Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Shareholder under this Agreement. Each Shareholder hereby further affirms that the irrevocable proxy is coupled with an interest and may under no circumstances be revoked. Each Shareholder hereby ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Each such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions of the Certificate of Incorporation, the By-laws and Section 212 of the Delaware General Corporation Law.

(d) The proxy granted in this Section 4 shall automatically expire upon the termination of this Agreement.

SECTION 5. Further Assurances. Each Shareholder shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as Purchaser may reasonably request for the purpose of effectuating the matters covered by this Agreement, including with respect to the grant of the proxy set forth in Section 4.

SECTION 6. Certain Events. Each Shareholder agrees that this Agreement and the obligations hereunder shall attach to the Subject Shares and shall be binding upon any person or entity to which legal or beneficial ownership of the Subject Shares shall pass, whether by operation of law or otherwise, including such Shareholder’s

heirs, guardians, administrators or successors. In the event of any stock split, stock dividend, reclassification, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the capital stock of the Company, the number of Subject Shares listed on Schedule A hereto shall be adjusted appropriately. In addition, in the event that any Shareholder acquires any additional shares of capital stock of the Company or other voting securities of the Company (including through the exercise of any warrants, stock options or similar instruments), the number of Subject Shares listed on Schedule A hereto shall be adjusted to include such additional shares of capital stock or other voting securities of the Company. This Agreement and the representations, warranties, covenants, agreements and obligations hereunder shall attach to any additional shares of capital stock of the Company or other voting securities of the Company issued to or acquired by any Shareholder (including through the exercise of any warrants, stock options or similar instruments).

SECTION 7. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by any of the parties hereto without the prior written consent of the other party hereto, except that Purchaser may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to any direct or indirect wholly owned subsidiary of Purchaser. Any purported assignment in violation of this Section 7 shall be null and void. Subject to the preceding sentences of this Section 7, this Agreement shall be binding upon, inure to the benefit of and be enforceable by, the parties hereto and their respective successors and assigns.

SECTION 8. Termination. This Agreement, other than Sections 3(b) and 3(c) and Sections 8 through 13, shall terminate upon the earlier of (i) the day that is one month after the date of this Agreement if the Share Purchase Agreement shall not have been signed by such date, (ii) the Closing and (iii) termination of the Share Purchase Agreement in accordance with its terms, other than with respect to the liability of any party for breach hereof prior to such termination. Sections 3(b) and 3(c) and Sections 8 through 13 shall terminate upon the earliest of (i) the Closing, (ii) the termination of the Share Purchase Agreement pursuant to Sections 7.01(a)(i), 7.01(a)(iii) and 7.01(a)(iv) and (iii) 3 months after the termination of the Share Purchase Agreement pursuant to Section 7.01(a)(vi). No termination of this Agreement shall relieve any party hereto from any liability for any breach of any provision of this Agreement prior to termination.

SECTION 9. General Provisions. (a) Amendments. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.

(b) Notices. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) five business days following sending by registered or certified mail, postage prepaid, (b) when sent, if sent by facsimile, provided that the facsimile transmission is promptly confirmed by telephone, (c) when delivered, if delivered personally to the intended recipient and (d) one business day following sending by overnight delivery via a

national courier service and, in each case, addressed to a party at the following address for such party:

if to the Purchaser:

Manhattan

Maanplein 1, 2516 CK

The Hague, The Netherlands

Attention: Craig Allwright

Facsimile: +31 70 446 0675

with a copy to:

Cravath, Swaine & Moore LLP

CityPoint

One Ropemaker Street

London EC2Y 9HR

Attention: Philip J. Boeckman, Esq.

Facsimile: +44 207 860 1150

if to the Shareholders:

c/o Jonathan Draluck

20 Second Avenue

Burlington, Massachusetts 01803

Facsimile: (781) 505-7304

with a copy to:

Bingham McCutchen LLP

c/o Johan V. Brigham, Esq.

150 Federal Street

Boston, Massachusetts 02110

Facsimile: (617) 951-8736

(c) Interpretation. The representations, warranties and covenants contained herein shall be deemed to be made severally, and not jointly, by each of the Shareholders.

(d) Counterparts; Effectiveness. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, all such respective counterparts shall together constitute one and the same instrument, and shall be delivered in person, by facsimile, or by electronic image scan. The effectiveness of this Agreement shall be conditioned upon the execution and delivery of the Share Purchase Agreement by each of the parties thereto.

(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof. This Agreement is for the sole benefit of the parties hereto, their permitted assigns (consistent with Section 7 of this Agreement) and the persons specified as proxies in Section 4, and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto and such assigns, any legal or equitable rights hereunder.

(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.

(g) Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect 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 determination that any term or other provision is invalid, illegal or incapable of being enforced, 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 to the end that transactions contemplated hereby are fulfilled to the extent possible.

SECTION 10. Jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding against them arising out of or in connection with this Agreement or the transactions contemplated by this Agreement or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the U.S. District Court for the Southern District of New York, or, if such court does not have subject matter jurisdiction, the state courts of New York located in New York County and hereby irrevocably accepts and submits to the exclusive jurisdiction and venue of the aforesaid courts in personam, with respect to any such action, suit or proceeding.

SECTION 11. Service of Process. Each of the parties agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any matters for which it has submitted to jurisdiction pursuant to Section 10.

SECTION 12. Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by Applicable Law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement or disputes relating hereto. Each party (a) certifies that no representative, agent or attorney of any other party

has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other party hereto have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 12.

SECTION 13. Headings. Section headings are used for convenience only and shall in no way affect the construction of this Agreement.

IN WITNESS WHEREOF, Purchaser has caused this Agreement to be signed by its officer thereunto duly authorized and each Shareholder has signed this Agreement, all as of the date first written above.

KPN TELECOM B.V.,
by
	/s/ KPN TELECOM B.V.
	Name:
	Title:

SHAREHOLDERS,
by
	/s/ OFER GNEEZY
	Ofer Gneezy

EX-99.3 4 ex99-3.htm EXHIBIT 99.3 Exhibit 3 -- Shareholder Voting Agreement

EXHIBIT 3

SHAREHOLDER VOTING AGREEMENT

among

KPN TELECOM B.V.

and

THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO

Dated as of June 20, 2006

TABLE OF CONTENTS

Page

SECTION 1. Representations and Warranties of the Shareholders	1
SECTION 2. Representations and Warranties of Purchaser	2
SECTION 3. Covenants of the Shareholder	3
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy	4
SECTION 5. Further Assurances	4
SECTION 6. Certain Events	4
SECTION 7. Assignment	5
SECTION 8. Termination	5
SECTION 9. General Provisions	5
SECTION 10. Jurisdiction	7
SECTION 11. Service of Process	7
SECTION 12. Waiver of Jury Trial	7
SECTION 13. Headings	8

WHEREAS as a condition to its willingness to enter into the Share Purchase Agreement, Purchaser has required that the Shareholders enter into this Agreement.

SECTION 1. Representations and Warranties of the Shareholders. Each Shareholder, severally and not jointly, hereby represents and warrants to Purchaser as follows:

SECTION 2. Representations and Warranties of Purchaser. Purchaser represents and warrants to each Shareholder as follows:

SECTION 3. Covenants of the Shareholder. Each Shareholder, severally and not jointly, covenants and agrees as follows:

(b) Each Shareholder represents that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that all such proxies are hereby revoked.

(d) The proxy granted in this Section 4 shall automatically expire upon the termination of this Agreement.

SECTION 9. General Provisions. (a) Amendments. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.

national courier service and, in each case, addressed to a party at the following address for such party:

if to the Purchaser:

Manhattan

Maanplein 1, 2516 CK

The Hague, The Netherlands

Attention: Craig Allwright

Facsimile: +31 70 446 0675

with a copy to:

Cravath, Swaine & Moore LLP

CityPoint

One Ropemaker Street

London EC2Y 9HR

Attention: Philip J. Boeckman, Esq.

Facsimile: +44 207 860 1150

if to the Shareholders:

c/o Jonathan Draluck

20 Second Avenue

Burlington, Massachusetts 01803

Facsimile: (781) 505-7304

with a copy to:

Bingham McCutchen LLP

c/o Johan V. Brigham, Esq.

150 Federal Street

Boston, Massachusetts 02110

Facsimile: (617) 951-8736

(c) Interpretation. The representations, warranties and covenants contained herein shall be deemed to be made severally, and not jointly, by each of the Shareholders.

(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.

SECTION 13. Headings. Section headings are used for convenience only and shall in no way affect the construction of this Agreement.

IN WITNESS WHEREOF, Purchaser has caused this Agreement to be signed by its officer thereunto duly authorized and each Shareholder has signed this Agreement, all as of the date first written above.

KPN TELECOM B.V.,
by
	/s/ KPN TELECOM B.V.
	Name:
	Title:

SHAREHOLDERS,
	/s/ GORDON VANDERBRUG
	Gordon VanderBrug

EX-99.4 5 ex99-4.htm EXHIBIT 99.4 Exhibit 4 -- Shareholder Voting Agreement

EXHIBIT 4

SHAREHOLDER VOTING AGREEMENT

among

MANHATTAN

and

THE INDIVIDUALS LISTED ON THE SIGNATURE PAGE HERETO

Dated as of June 20, 2006

TABLE OF CONTENTS

		Page
SECTION 1.	Representations and Warranties of the Shareholders	1
SECTION 2.	Representations and Warranties of Purchaser	2
SECTION 3.	Covenants of the Shareholder	3
SECTION 4.	Further Assurances	4
SECTION 5.	Assignment	4
SECTION 6.	Transfers	4
SECTION 7.	Termination	4
SECTION 8.	General Provisions	4
SECTION 9.	Jurisdiction	6
SECTION 10.	Service of Process	6
SECTION 11.	Waiver of Jury Trial	6
SECTION 12.	Headings	6