SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
(Amendment
No. 9)
iBASIS,
INC.
(Name of
Subject Company (Issuer))
KPN
B.V.
(Offeror)
KONINKLIJKE
KPN N.V.
(Parent
of Offeror)
CELTIC
ICS INC.
(Wholly
Owned Subsidiary of Offeror)
(Names of
Filing Persons (identifying status as offeror, issuer or other
person))
COMMON
STOCK, $0.001 PAR VALUE
(Title of
Class of Securities)
450732201
(CUSIP
Number of Class of Securities)
Michel
Hoekstra
Koninklijke
KPN N.V.
Maanplein
55
2516
CK, The Hague, The Netherlands
+31
70 446 2093
(Name,
address and telephone numbers of person authorized to receive
notices
and communications on behalf of filing persons)
Copies
to:
Mark
I. Greene, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, New York 10019
(212)
474-1000
CALCULATION
OF FILING FEE
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Transaction
Valuation(1)
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Amount
of Filing Fee(2)
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$93,327,384
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$5,208
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(1) Estimated
for purposes of calculating the filing fee only. This amount is
determined by multiplying 31,109,128 shares of common stock, par value $0.001
per share (the “Shares”), of iBasis, Inc. (the “Company”) by $3.00 per Share,
which is the offer price. Such number of Shares represents the
71,230,202 Shares issued and outstanding as of November
25, 2009, as reported in
the Company
’s
Information Statement filed under cover of Schedule 14f-1 on November 27, 2009,
less
the 40,121,074 Shares already owned by KPN B.V.
(2) The
filing fee was calculated in accordance with Rule 0-11 under the Securities
Exchange Act of 1934 and Fee Rate Advisory #5 for fiscal year 2009, issued March
11, 2009, by multiplying the transaction value by .0000558.
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ý
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Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its
filing.
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Amount Previously Paid:
$2,690
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Filing
Party: Koninklijke KPN N.V.,
KPN
B.V.,
Celtic ICS Inc.
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Form or Registration No.:
Schedule TO-T
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Date
Filed: July 28, 2009
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Amount Previously Paid:
$1,216
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Filing
Party: Koninklijke KPN N.V.,
KPN
B.V., Celtic ICS Inc.
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Form or Registration No.:
Schedule TO-T/A
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Date
Filed: October 5, 2009
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Amount Previously Paid:
$1,302
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Filing
Party: Koninklijke KPN N.V., KPN
B.V.,
Celtic ICS Inc.
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Form or Registration No.:
Schedule TO-T/A
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Date
Filed: November 23, 2009
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¨
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
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Check
the appropriate boxes below to designate any transactions to which the
statement relates:
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ý
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third-party
tender offer subject to Rule 14d-1.
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¨
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issuer
tender offer subject to Rule 13e-4.
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ý
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going-private
transaction subject to Rule 13e-3.
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¨
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amendment
to Schedule 13D under Rule 13d-2.
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Check the
following box if the filing is a final amendment reporting the results of the
tender offer.
¨
If
applicable, check the appropriate box(es) below to designate the appropriate
rule provision(s) relied upon:
¨
Rule
13e-4(i) (Cross-Border Issuer Tender Offer)
¨
Rule
14d-1(d) (Cross-Border Third-Party Tender Offer)
This
Amendment No. 9 amends and supplements the Tender Offer Statement and Rule 13e-3
Transaction Statement filed under cover of Schedule TO with the Securities and
Exchange Commission (the “SEC”) on July 28, 2009, as amended and supplemented
from time to time (the “Schedule TO”), by (i) KPN B.V., a private limited
liability company organized under the laws of The Netherlands (“Purchaser”) and
a wholly owned subsidiary of Koninklijke KPN N.V., a public company incorporated
under the laws of The Netherlands (“Parent”), (ii) Parent and (iii) Celtic
ICS Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of
Purchaser. The Schedule TO relates to the offer (the “Offer”) by
Purchaser to purchase all of the outstanding shares of common stock, par value
$0.001 per share (the “Shares”), of iBasis, Inc., a Delaware corporation (the
“Company”), that are not already owned by Purchaser at a purchase price of $3.00
per Share, net to the seller in cash, without interest and less any required
withholding taxes, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated July 28, 2009 (together with any amendments and
supplements thereto, the “Offer to Purchase”) and in the related Letter of
Transmittal.
Item
1. Summary Term Sheet; Item 4.
Terms of the Transaction.
(1) The
Expiration Date of the Offer is extended to 12:00 midnight, New York City time,
on Friday, December 18, 2009
(which is the
end of the day on December 18, 2009). The Depositary for the Offer has
indicated that, as of midnight on December 8, 2009,
approximately 23,112,954 Shares have been tendered in and not withdrawn
from the Offer (including 1,158,522 Shares pursuant to a Notice of Guaranteed
Delivery).
(2) The
press release announcing the extension of the Offer is attached hereto as
Exhibit
(a)(1)(xx)
and is incorporated herein by reference.
Item
11. Additional
Information.
Item 11
of the Schedule TO is hereby amended and supplemented by the following
information:
On
December 2, 2009, David Shutvet (“Plaintiff”), a shareholder of the Company,
filed an amended shareholder derivative and class complaint in the Superior
Court Department of Middlesex County, Commonwealth of Massachusetts, against
Parent, Purchaser, Merger Sub (together, the “KPN Defendants”), and certain
individual current and former officers and directors of the Company (together,
the “Individual Defendants”). This complaint is an amendment to a
complaint filed by Plaintiff on September 11, 2009 against certain of the
Individual Defendants. The September 11, 2009 complaint, which
alleged, inter alia, that certain of the Individual Defendants breached their
fiduciary duties in connection with improper stock option grants, did not name
the KPN Defendants as defendants and did not include any allegations relating to
the Offer.
In this
action (as amended by the December 2, 2009 complaint), captioned as David
Shutvet, et al. v. Ofer Gneezy, et al., Case No. 09-3577 (the “Shareholder
Massachusetts Action”), Plaintiff alleges that: (i) certain of the Individual
Defendants breached their fiduciary duties to the Company by (a) approving
improper stock option grants and (b) disseminating false and misleading
statements relating to the allegedly improper stock option grants; (ii) certain
of the Individual Defendants were unjustly enriched though the receipt of
improper stock option grants; (iii) all defendants wasted corporate assets in
connection with the Company’s efforts to correct for the improper stock option
grants; (iv) an accounting must be made of all stock option grants to certain of
the Individual Defendants and that all contracts which provided for such stock
option grants should be rescinded, with the proceeds of the improper stock
option grants held in constructive trust for the Company’s benefit; (v) the
members of the special committee of the Company established to evaluate the
Offer (the “SC Defendants”) and Parent breached their fiduciary duties of
loyalty, candor, due care, good faith, diligence and independence to the Company
and its shareholders by (a) on the part of the SC Defendants, recommending that
the Company's stockholders tender their shares pursuant to the Offer and (b) on
the part of both the SC Defendants and Parent, disseminating materially
misleading statements to the Company’s stockholders in connection with the
Offer; and (vi) Purchaser and Merger Sub aided and abetted the SC Defendants’
and Parent’s alleged breaches of fiduciary duty.
Plaintiff
seeks: (i) an award of damages against the Individual Defendants; (ii) judgment
directing the Company to take all necessary actions to reform its corporate
governance to protect the Company from a repeat of the damage alleged; (iii)
equitable and/or injunctive relief to restrict the proceeds of defendants’
trading activities, stock options, or other assets, to ensure Plaintiff an
effective remedy; (iv) an accounting of undisclosed stock option grants, the
cancellation of all of the unexercised options granted to certain of the
Individual Directors between 2000 and 2004, the return of financial gains
obtained via the exercise of such options, and a revision of the Company’s
financial statements; (v) a declaration that stock options issued to certain
Individual Defendants and illegally manipulated are void and all proceeds from
their exercise or sale are held in constructive trust for the Company; (vi) a
declaration that any improper stock options, all proceeds derived from the
exercise thereof, and any assets or other property acquired in connection
therewith, are held in constructive trust by the option recipients for the
Company’s benefit; (vii) an award of restitution for all profits, benefits and
other compensation obtained through the improper stock option grants; (viii) a
declaration that this action is properly maintainable as a class action as to
the breach of fiduciary duty and aiding and abetting claims asserted against
Parent, Purchaser, Merger Sub and the SC Defendants; (ix) a declaration that
certain terms and conditions of the Offer were entered into in breach of the
defendants’ fiduciary duties and are therefore unlawful and unenforceable; (x)
to the extent already implemented, an injunction or rescission of certain terms
of the Offer and any of the sub-parts thereof; (xi) an injunction against
exercising voting or other control over the tendered shares, and from otherwise
consummating the Offer until defendants have remedied their allegedly misleading
statements and omission through publication of corrective supplemental
disclosures; (xii) the imposition of a constructive trust, in favor of Plaintiff
and members of a class of all holders of the Company’s common stock which have
been or will be harmed by the conduct alleged in the Shareholder Massachusetts
Action, upon any benefits received by defendants as a result of their wrongful
conduct and in breach of any duty owed to the Company’s shareholders; (xiii) an
award to Plaintiff of the costs and disbursements of the Shareholder
Massachusetts Action, including reasonable attorneys’ fees, accountants’ and
experts’ fees, costs, and expenses; and (xiv) such other relief as the court may
deem just and proper.
The KPN
Defendants believe that the Shareholder Massachusetts Action is entirely without
merit and that they have valid defenses to all claims. The outcome of
this matter and the potential amount of any loss are uncertain and we express no
opinion as to the likelihood of an unfavorable outcome.
Item
12. Exhibits.
(1) The
following exhibits are filed herewith:
(a)(1)(xx)
Press
release issued by Parent on December 9, 2009.
SIGNATURES
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
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KPN
B.V.
by KONINKLIJKE KPN N.V., its sole director
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By
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/s/
Michel Hoekstra
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Name: Michel
Hoekstra
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Title: Corporate
Legal Officer & Attorney-in-Fact
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Date: December
9, 2009
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KONINKLIJKE KPN N.V.
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By
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/s/
Michel Hoekstra
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Name: Michel
Hoekstra
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Title: Corporate
Legal Officer & Attorney-in-Fact
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Date: December
9, 2009
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CELTIC
ICS INC.
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By
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/s/
Michel Hoekstra
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Name: Michel
Hoekstra
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Title: Secretary
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Date: December
9, 2009
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EXHIBIT
INDEX
Exhibit
No.
Description
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(a)(1)(i)
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Offer
to Purchase dated July 28, 2009*
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(a)(1)(ii)
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Letter
of Transmittal*
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(a)(1)(iii)
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Notice
of Guaranteed Delivery*
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(a)(1)(iv)
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Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees*
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(a)(1)(v)
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Letter
to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees*
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(a)(1)(vi)
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Summary
Advertisement published in the
Wall Street Journal
on
July 28, 2009*
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(a)(1)(vii)
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Letter
dated July 12, 2009 to the board of directors of iBasis, Inc.
(incorporated by reference to Exhibit D to the Schedule 13D amendment
filed by Purchaser, Parent and Merger Sub on July 13,
2009)*
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(a)(1)(viii)
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Press
release issued by Parent on July 13, 2009 (incorporated by reference to
Exhibit E to the Schedule 13D amendment filed by Purchaser, Parent and
Merger Sub on July 13, 2009)*
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(a)(1)(ix)
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Press
release issued by Parent on August 6,
2009*
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(a)(1)(x)
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Press
release issued by Parent on August 13,
2009*
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(a)(1)(xi)
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Press
release issued by Parent on August 21,
2009*
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(a)(1)(xii)
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Press
release issued by Parent on October 5,
2009*
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(a)(1)(xiii)
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Press
release issued by Parent on October 20,
2009*
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(a)(1)(xiv)
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Supplement
to Offer to Purchase, dated November 23,
2009.*
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(a)(1)(xv)
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Amended
and Restated Letter of
Transmittal.*
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(a)(1)(xvi)
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Amended
and Restated Notice of Guaranteed
Delivery.*
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(a)(1)(xvii)
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Revised
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
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(a)(1)(xviii)
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Revised
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
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(a)(1)(xix)
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Press
release issued by Parent and the Company, dated November 23,
2009.*
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(a)(1)(xx)
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Press
release issued by Parent, dated December 9,
2009.
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(a)(2)(i)
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Solicitation/Recommendation
Statement on Schedule 14D-9, dated July 30,
2009.*
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(a)(2)(ii)
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Solicitation/Recommendation
Statement (Amendment No. 1) on Schedule 14D-9, dated July 31,
2009.*
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(a)(2)(iii)
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Solicitation/Recommendation
Statement (Amendment No. 2) on Schedule 14D-9, dated August 4,
2009.*
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(a)(2)(iv)
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Solicitation/Recommendation
Statement (Amendment No. 3) on Schedule 14D-9, dated August 6,
2009.*
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(a)(2)(v)
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Solicitation/Recommendation
Statement (Amendment No. 4) on Schedule 14D-9, dated August 7,
2009.*
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(a)(2)(vi)
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Solicitation/Recommendation
Statement (Amendment No. 5) on Schedule 14D-9, dated August 12,
2009.*
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(a)(2)(vii)
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Solicitation/Recommendation
Statement (Amendment No. 6) on Schedule 14D-9, dated August 14,
2009.*
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(a)(2)(viii)
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Solicitation/Recommendation
Statement (Amendment No. 7) on Schedule 14D-9, dated August 17,
2009.*
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(a)(2)(ix)
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Solicitation/Recommendation
Statement (Amendment No. 8) on Schedule 14D-9, dated August 18,
2009.*
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(a)(2)(x)
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Solicitation/Recommendation
Statement (Amendment No. 9) on Schedule 14D-9, dated August 24,
2009.*
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(a)(2)(xi)
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Solicitation/Recommendation
Statement (Amendment No. 10) on Schedule 14D-9, dated September 14,
2009.*
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(a)(2)(xii)
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Solicitation/Recommendation
Statement (Amendment No. 11) on Schedule 14D-9, dated October 5,
2009.*
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(a)(2)(xiii)
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Solicitation/Recommendation
Statement (Amendment No. 12) on Schedule 14D-9, dated October 9,
2009.*
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(a)(2)(xiv)
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Solicitation/Recommendation
Statement (Amendment No. 13) on Schedule 14D-9, dated October 15,
2009.*
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(a)(2)(xv)
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Solicitation/Recommendation
Statement (Amendment No. 14) on Schedule 14D-9, dated October 20,
2009.*
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(a)(2)(xvi)
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Solicitation/Recommendation
Statement (Amendment No. 15) on Schedule 14D-9, dated November 5,
2009.*
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(a)(2)(xvii)
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Solicitation/Recommendation
Statement (Amendment No. 16) on Schedule 14D-9, dated November 23,
2009.*
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(a)(5)(i)
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Complaint
filed by the Company on August 3, 2009 in action captioned as
iBasis, Inc. v.
Koninklijke KPN N.V., et al.
, Civil Action No. 4774-VCS, in the
Court of Chancery of the State of Delaware (incorporated by reference to
Exhibit (a)(9) to Amendment No. 2 to the Company’s
Solicitation/Recommendation Statement on Schedule 14D-9 filed on August 4,
2009)*
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(a)(5)(ii)
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Answer
and Counterclaims filed by Parent on August 13, 2009 in action captioned
as
iBasis, Inc.
v. Koninklijke KPN N.V., et al.
, Civil Action No. 4774-VCS, in the
Court of Chancery of the State of
Delaware*
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(a)(5)(iii)
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Complaint
filed by the Company on August 18, 2009 in action captioned as
iBasis, Inc. v.
Koninklijke KPN N.V., et al.
, No. 09 CV 7288, in the United States
District Court for the Southern District of New York (incorporated by
reference to Exhibit (a)(18) to Amendment No. 8 to the Company’s
Solicitation/Recommendation Statement on Schedule 14D-9 filed on August
18, 2009)*
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(a)(5)(iv)
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Email
dated October 24, 2008 attaching KPN Presentation
(JX51a).*
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(a)(5)(v)
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KPN
Presentation dated November 2008 (incorrectly dated “November 2009”)
(JX162).*
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(a)(5)(vi)
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Email
dated April 6, 2009 attaching KPN Presentation
(JX230).*
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(a)(5)(vii)
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Email
dated April 6, 2009 attaching KPN Presentation
(JX193a).*
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(a)(5)(viii)
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Email
dated April 7, 2009 attaching KPN Presentation
(JX240).*
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(a)(5)(ix)
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Email
dated April 7, 2009 attaching KPN Presentation
(JX192).*
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(a)(5)(x)
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Email
dated April 7, 2009 attaching KPN Presentation
(JX85).*
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(a)(5)(xi)
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KPN
Presentation dated April 9, 2009
(JX195).*
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(a)(5)(xii)
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KPN
Presentation dated April 9, 2009
(JX243).*
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(a)(5)(xiii)
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Email
dated April 14, 2009 attaching KPN Presentation
(JX246a).*
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(a)(5)(xiv)
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KPN
Presentation dated April 16, 2009
(JX247).*
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(a)(5)(xv)
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Email
dated April 21, 2009 attaching KPN Presentation
(JX1278).*
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(a)(5)(xvi)
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Email
dated April 29, 2009 attaching KPN Presentation
(JX96).*
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(a)(5)(xvii)
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KPN
Presentation dated May 28, 2009
(JX197).*
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(a)(5)(xviii)
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Email
dated June 2, 2009 attaching KPN Presentation
(JX103).*
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(a)(5)(xix)
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KPN
Presentation dated June 4, 2009
(JX105).*
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(a)(5)(xx)
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Email
dated June 10, 2009 attaching KPN Presentation
(JX261).*
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(a)(5)(xxi)
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Email
dated June 11, 2009 attaching KPN Presentation
(JX1280a).*
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(a)(5)(xxii)
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Email
dated June 12, 2009 attaching KPN Presentation
(JX115a).*
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(a)(5)(xxiii)
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Email
dated July 7, 2009 attaching KPN Presentation
(JX198a).*
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(a)(5)(xxiv)
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KPN
Presentation dated July 8, 2009
(JX124).*
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(a)(5)(xxv)
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Stipulation
Dismissing with Prejudice By Counsel to the Company, Parent, Purchaser,
Merger Sub, and individual members of the board of directors of the
Company and individual officers and members of the Supervisory Board and
Board of Management of Parent, filed in
iBasis, Inc. v. Koninklijke
KPN N.V., et al.,
Civil Action No. 4774-VCS (in the Court of
Chancery of the State of Delaware) and dated November 23,
2009.*
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(a)(5)(xxvi)
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Stipulation
Dismissing with Prejudice By Counsel to the Company, Parent, Purchaser,
Merger Sub, and individual members of the board of directors of the
Company and individual officers and members of the Board of Management of
Parent, filed in
iBasis,
Inc. v. Koninklijke KPN N.V., et al.,
No. 09 CV 7288 (in the United
States District Court for the Southern District of New York) and dated
November 23, 2009.*
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(b)
|
Euro
1,500,000,000 Syndicated Revolving Credit Agreement dated as of August 16,
2006 among Parent, ABN AMRO Bank N.V., as facility agent, an original
lender, a mandated lead arranger, euro swingline agent and dollar
swingline agent, and the other financial institutions party thereto
(incorporated by reference to Exhibit C to the Schedule 13D amendment
filed by Purchaser, Parent and Merger Sub on July 13,
2009)*
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(c)(i)
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Presentation
of Morgan Stanley dated July 8,
2009*
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(c)(ii)
|
Presentation
of Morgan Stanley dated June 3,
2009*
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(c)(iii)
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Presentation
of Morgan Stanley dated May 13,
2009*
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(c)(iv)
|
Morgan
Stanley Discussion Materials dated May 22,
2009*
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(c)(v)
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Morgan
Stanley Discussion Materials dated June 2,
2009*
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(d)(i)
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Share
Purchase and Sale Agreement dated as of June 21, 2006 between the Company
and Purchaser (incorporated by reference to Exhibit 2 to the Schedule 13D
amendment filed by Purchaser and Parent on October 11,
2007)*
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(d)(ii)
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Amendment
No. 1 dated as of December 18, 2006 to Share Purchase and Sale Agreement
between the Company and Purchaser (incorporated by reference to Exhibit 3
to the Schedule 13D amendment filed by Purchaser and Parent on October 11,
2007)*
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(d)(iii)
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Amendment
No. 2 dated as of April 26, 2007 to Share Purchase and Sale Agreement
between the Company and Purchaser (incorporated by reference to Exhibit 4
to the Schedule 13D amendment filed by Purchaser and Parent on October 11,
2007)*
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(d)(iv)
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Amendment
No. 3 dated as of August 1, 2007 to Share Purchase and Sale Agreement
between the Company and Purchaser (incorporated by reference to Exhibit 5
to the Schedule 13D amendment filed by Purchaser and Parent on October 11,
2007)*
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(d)(v)
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Registration
Rights Agreement dated as of October 1, 2007 between the Company and
Purchaser (incorporated by reference to Exhibit 4.01 to the Current Report
on Form 8-K filed by the Company on
October
5, 2007)*
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(d)(vi)
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Second
Amended and Restated By-laws of the Company (incorporated by reference to
Exhibit 3.01 to the Current Report on Form 8-K filed by the Company on
October 5, 2007)*
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(d)(vii)
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Amendment
No. 1 to the Second Amended and Restated By-laws of the Company
(incorporated by reference to Exhibit 3.1 to the Current Report on Form
8-K filed by the Company on November 14,
2007)*
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(d)(viii)
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Settlement
Agreement dated as of November 22, 2009 among Parent, Purchaser, Merger
Sub and the Company.*
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(f)
|
Section
262 of the General Corporation Law of the State of Delaware (included as
Schedule II to the Offer to
Purchase)*
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(f)(ii)
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Amended
Section 262 of the General Corporation Law of the State of Delaware,
effective as of August 1, 2009 (included as Schedule I to the
Supplement)*
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(i)
|
Power
of Attorney dated as of July 11,
2009*
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__________________
*
Previously filed
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