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As filed with the Securities and Exchange Commission on February 17, 2000.
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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IBASIS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
04-3332534
(I.R.S. EMPLOYER IDENTIFICATION NO.)
20 SECOND AVENUE, BURLINGTON, MASSACHUSETTS 01803
(Address of Principal Executive Offices) (Zip Code)
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1997 STOCK INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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OFER GNEEZY
President
and Chief Executive Officer
iBasis, Inc.
20 Second Avenue
Burlington, MA 01803
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(781) 505-7500
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE
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Copy to:
DAVID L. ENGEL, ESQ.
JOHAN V. BRIGHAM, ESQ.
BINGHAM DANA LLP
150 Federal Street
Boston, Massachusetts 02110
(617) 951-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------- -------------------- --------------- ------------------- -------------------
- ------------------------------------- -------------------- --------------- ------------------- -------------------
Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered Share (1) Price Fee
- ------------------------------------- -------------------- --------------- ------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value per share 6,200,000 $68.53 $424,886,000 $112,170
- ------------------------------------- -------------------- --------------- ------------------- -------------------
- ------------------------------------- -------------------- --------------- ------------------- -------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h) under the Securities Act of 1933, as amended, based on the
average of the high and low prices of the Registrant's Common Stock, $0.001 par
value per share, reported by the Nasdaq National Market on February 15, 2000.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by iBasis, Inc. (the "REGISTRANT") with
the Securities and Exchange Commission (the "SEC") are hereby incorporated by
reference into this Registration Statement: (1) the Registrant's prospectus
filed pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended
(the "SECURITIES ACT"); (2) all other reports filed by the Registrant pursuant
to Sections 13(a) or 15(d) of the Exchange Act since December 31, 1998; and (3)
the description of the common stock of the Registrant, $0.001 par value per
share (the "COMMON STOCK"), contained in the Registrant's registration statement
on Form 8-A filed with the SEC on August 24, 1999 pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), including
any amendment or report filed for the purpose of updating such description.
In addition, all documents filed pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities registered hereby have been sold or which deregisters all of
such securities then remaining unsold shall be incorporated by reference into
this Registration Statement as of the filing date of each.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The form of the Amended and Restated Certificate of Incorporation of
the Registrant and the Amended and Restated By-Laws of the Registrant, as
amended to date, provide for indemnification of officers and directors of the
Registrant and certain other persons against liabilities and expenses incurred
by any of them in certain stated proceedings and under certain stated
conditions.
The Registrant may maintain insurance for the benefit of its directors,
officers, employees, agents and certain other persons, insuring such persons
against any expense, liability, or loss, including liability under the
securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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The following exhibits are filed as part of this Registration
Statement:
EXHIBIT NO. DESCRIPTION OF DOCUMENTS
4.1 Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to Exhibit No. 3.1 to
the Registrant's Registration Statement on Form S-1
(file No. 333-85545), filed on November 9, 1999.
4.2. Amended and Restated By-Laws of the Registrant, incorporated
by reference to Exhibit No. 3.2 to the Registrant's
Registration Statement on Form S-1 (No. 333-85545).
4.3 1997 Stock Incentive Plan, incorporated by reference to
Exhibit No. 10.8 to the Registrant's Registration Statement
on Form S-1 (No. 333-85545).
4.4 1999 Employee Stock Purchase Plan, as amended, incorporated
by reference to Exhibit No. 10.26 to the Registrant's
Registration Statement on Form S-1 (No. 333-96533), filed
February 10, 2000.
5 Opinion of Bingham Dana LLP as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, independent accountants.
23.2 Consent of Bingham Dana LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement.
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
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PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii)
do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(B) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(C) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Burlington, Commonwealth of Massachusetts, as of
the 16th day of February 2000.
iBASIS, INC.
By: /S/ OFER GNEEZY
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Ofer Gneezy
President and Chief
Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Ofer Gneezy,
Michael Hughes, and each of them severally, his true and lawful attorney-in-fact
with the authority to execute in the name of each such person, and to file with
the Securities and Exchange Commission, together with any exhibits thereto and
other documents therewith, any and all amendments (including without limitation
post-effective amendments) to this Registration Statement on Form S-8 necessary
or advisable to enable the Registrant to comply with the Securities Act of 1933,
as amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other
changes in the Registration Statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated as of the 16th day of February 2000.
SIGNATURE TITLE
/S/ OFER GNEEZY President, Chief Executive Officer and
- --------------------- Director (Principal Executive Officer)
Ofer Gneezy
/S/ GORDON VANDERBRUG Executive Vice President and Director
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Gordon J. VanderBrug
/S/ MICHAEL J. HUGHES Vice President, Finance and Chief
- --------------------- Financial Officer (Principal Financial
Michael Hughes and Accounting Officer)
/S/ ROBERT MAGINN Director
- ---------------------
Robert Maginn
Director
- ---------------------
Charles S. Houser
/S/ IZHAR ARMONY Director
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Izhar Armony
/S/ JOHN JARVE Director
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John Jarve
/S/ CHARLES N. CORFIELD Director
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Charles N. Corfield
/S/ CHARLES M. SKIBO Director
- ---------------------
Charles M. Skibo
Director
- ---------------------
Carl Redfield
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENTS
4.1 Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to Exhibit No. 3.1 to
the Registrant's Registration Statement on Form S-1 (file No.
333-85545), filed on November 9, 1999.
4.2. Amended and Restated By-Laws of the Registrant, incorporated
by reference to Exhibit No. 3.2 to the Registrant's
Registration Statement on Form S-1 (No. 333-85545).
4.3 1997 Stock Incentive Plan, incorporated by reference to
Exhibit No. 10.8 to the Registrant's Registration Statement on
Form S-1 (No. 333-85545).
4.4 1999 Employee Stock Purchase Plan, as amended, incorporated
by reference to Exhibit No. 10.26 to the Registrant's
Registration Statement on Form S-1 (No. 333-96533), filed
February 10, 2000.
5 Opinion of Bingham Dana LLP as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, independent accountants.
23.2 Consent of Bingham Dana LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature page of this
Registration Statement).
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Exhibit 5
BINGHAM DANA LLP
150 Federal Street
Boston, MA 02110
Tel: 617-951-8000
Fax: 617-951-8736
February 16, 2000
iBasis, Inc.
20 Second Ave.
Burlington, MA 01803
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for iBasis, Inc., a Delaware corporation (the
"COMPANY"), in connection with the preparation of the Company's Registration
Statement on Form S-8 proposed to be filed with the Securities and Exchange
Commission on or about February 17, 2000 (the "REGISTRATION STATEMENT").
The Registration Statement covers the registration of 6,200,000 shares
of common stock, $.001 par value per share, of the Company (the "SHARES"), which
are issuable by the Company pursuant to its 1997 Stock Incentive Plan or 1999
Employee Stock Purchase Plan (the "PLANS").
We have reviewed the corporate proceedings of the Company with respect
to the authorization of the Plans and the issuance of the Shares thereunder. We
have also examined and relied upon originals or copies of such corporate
records, instruments, agreements or other documents of the Company, and
certificates of officers of the Company as to certain factual matters, as we
have deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form and the legal competence of each individual
executing any document.
This opinion is limited solely to the Delaware General Corporation Law,
as applied by courts located in Delaware, the applicable provisions of the
Delaware Constitution and the reported judicial decisions interpreting those
laws.
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Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options or awards
pursuant to the Plans and against the payment of the purchase price therefor, as
specified in such Plans or documents governing such awards, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BINGHAM DANA LLP
BINGHAM DANA LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
February 2, 2000 in iBasis, Inc.'s Registration Statements on Form S-1, as
filed with the Securities and Exchange Commission on February 10, 2000, and
to all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
February 17, 2000
