SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
---------------------------
Date of report (Date of earliest event reported): September 24, 1999
IXNET, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 000-26959 13-4060000
- -------------------------- ---------------------- -------------------
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
WALL STREET PLAZA, 88 PINE STREET, NEW YORK, NEW YORK 10005
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (212) 412-6400
NONE
(Former name or former address, if changed since last report)
<PAGE>
ITEM 5. OTHER EVENTS
IXnet, Inc. ("IXnet") and its wholly owned subsidiary, International
Exchange Networks, Ltd. ("IEXN"), entered into a Strategic Agreement, dated as
of September 24, 1999, with TIBCO Finance Technology Inc. ("TIBCO"). IEXN and
TIBCO had previously entered into the "TIBONLINE DIRECT" License, Development,
Embedding, Support and Royalty Agreement, dated June 25, 1999, as amended (the
"License Agreement"), relating to the license, development, embedding and
support of certain proprietary TIBCO software products. Under the Strategic
Agreement, TIBCO and IEXN entered into Contract Addendum Four to the License
Agreement ("CA Four"), modifying the grant of certain perpetual licenses and the
associated cost and mechanism of payment thereunder, and Contract Addendum Five
to the License Agreement ("CA Five") relating to certain enhancements to be
provided by TIBCO. In addition, TIBCO and IEXN entered into a Network and
Services and Joint Solutions Agreement relating to the evaluation of joint
integrated vertical market solutions and the sale by TIBCO of certain network
and hosting services offered by IEXN. The Strategic Agreement provides that
under CA Four and CA Five, IEXN will pay TIBCO $20,000,000, (i) $10,000,000 of
which was paid by the issuance of 500,000 shares of IXnet common stock, (ii)
$9,400,000 of which is payable in installments beginning on October 30, 1999,
with the final installment payable on April 1, 2000 and (iii) $600,000, half of
which is payable upon delivery of enhancements, and the balance of which is
payable upon acceptance, of said enhancements.
A copy of the press release further describing the transaction is
attached hereto as Exhibit 99.1.
IXnet hereby incorporates by reference the Strategic Agreement attached
hereto as Exhibit 10.24 and the press release attached hereto as Exhibit 99.1,
each made a part hereof, into this Item 5.
ITEMS 1 THROUGH 4, 6, 8 AND 9
Not applicable.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) The following Exhibits are filed as part of this report:
EXHIBIT NO. DESCRIPTION
----------- -----------
10.24 Strategic Agreement dated as of September 24, 1999
by and among IXnet, Inc., International Exchange
Networks, Ltd. and TIBCO Finance Technology Inc.
99.1 Press Release issued on September 28, 1999.
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
By: /s/ David A. Walsh
----------------------------
David A. Walsh
Chief Executive Officer
Dated: October 13, 1999
-3-
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
------- -----------
10.24 Strategic Agreement dated as of September 24, 1999
by and among IXnet, Inc., International Exchange
Networks, Ltd. and TIBCO Finance Technology Inc.
99.1 Press Release issued on September 28, 1999
-4-
Exhibit 10.24
EXECUTION VERSION
-----------------
- --------------------------------------------------------------------------------
STRATEGIC AGREEMENT
- --------------------------------------------------------------------------------
THIS STRATEGIC AGREEMENT (this "Agreement") is entered into as of
September 24, 1999, by and between TIBCO Finance Technology Inc., a Delaware
corporation with offices at 3375 Hillview Avenue, Palo Alto, California
94304-1213, U.S.A. (hereinafter "TIBCO"), on the one hand, and IXnet, Inc., a
Delaware corporation with its principal place of business at Wall Street Plaza,
88 Pine Street, New York, NY 10005 (hereinafter "IXnet Holdings") and
International Exchange Networks, Ltd., a Delaware corporation with its principal
place of business at Wall Street Plaza, 88 Pine Street, New York, New York 10005
and a wholly owned subsidiary of IXnet Holdings (hereinafter "IXnet"), on the
other hand.
R E C I T A L S
WHEREAS, the parties are aware of their respective and complimentary
strengths in the business of data distribution to the financial services
community and view a strategic relationship as an attractive opportunity;
WHEREAS, TIBCO and IXnet have entered into that certain "TIBONLINE
DIRECT" LICENSE, DEVELOPMENT, EMBEDDING, SUPPORT & ROYALTY AGREEMENT, dated June
25, 1999 (as supplemented by any related work orders and addenda, the "License
Agreement") relating to the license, development, embedding and support of
certain proprietary TIBCO software products (the "TIBCO Products");
WHEREAS, the parties wish to establish a strategic relationship by
entering into certain contract addenda under the License Agreement, in
particular CONTRACT ADDENDUM FOUR ("CA Four") relating to the grant of perpetual
licenses for a specified amount of TIBCO Products, and CONTRACT ADDENDUM FIVE
("CA Five") relating to certain enhancements and specified TIBCO Product license
rights, a copy of each of which contract addenda has been identified by TIBCO
and IXnet by their respective initials thereon;
WHEREAS, further to such strategic relationship and in connection with
Contract Addendum Four, IXnet Holdings wishes to issue to TIBCO, and TIBCO
wishes to receive from IXnet Holdings, an equity interest in IXnet Holdings;
WHEREAS, further to such strategic relationship, TIBCO and IXnet wish to
enter into that certain NETWORK AND SERVICES AND JOINT SOLUTIONS AGREEMENT (the
"Network Agreement") relating to the evaluation of joint integrated vertical
market solutions and the sale by TIBCO of certain network and hosting services
offered by IXnet, a copy of
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which Network Agreement has been identified by TIBCO and IXnet by their
respective initials thereon; and
WHEREAS, in contemplation of the overall strategic relationship expressed
in the License Agreement, CA Four, CA Five and the Network Agreement, certain
consideration payable under certain of said agreements and the effectiveness and
payment terms therefor shall be as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants hereinafter set forth, it is agreed by and between the
parties hereto as follows:
1. CLOSING. On and subject to the terms and conditions of this Agreement, TIBCO
and IXnet have, concurrently with the execution and delivery of this Agreement,
entered into and delivered CA Four, CA Five and the Network Agreement
(collectively, the "Ancillary Agreements") at a closing (the "Closing") at the
offices of Thacher Proffitt and Wood, Two World Trade Center, New York, New York
10048, on the date hereof (the "Closing Date"). In partial consideration for the
foregoing executions and deliveries by TIBCO, IXnet Holdings has also,
concurrently with the execution and delivery of this Agreement, delivered to
TIBCO an opinion of its counsel with respect to the issuance of Common Stock by
IXnet Holdings (as described in Section 2(a)(ii)).
2. CERTAIN SCHEDULED PAYMENT TERMS. As contemplated by CA Four and CA Five,
IXnet shall pay to TIBCO a total of $20,000,000.00 as follows:
a. In respect of CA Four, IXnet shall pay to TIBCO Nineteen Million Four
Hundred Thousand Dollars ($19,400,000) in cash and common stock of IXnet
Holdings, as follows:
(i) On October 30, 1999, Two Million Dollars ($2,000,000); on
November 30, 1999, One Million Dollars ($1,000,000); on
January 1, 2000, Two Million Dollars ($2,000,000); on
February 1, 2000, Two Million Dollars ($2,000,000); on
March 1, 2000, Two Million Dollars ($2,000,000); and on
April 1, 2000, Four Hundred Thousand Dollars ($400,000);
each due and payable as of such date (or, if not a business
day in New York City, on the first following business day
in New York City) and invoiced by TIBCO thirty days prior
to each such due date; and
(ii) At the Closing, IXnet Holdings has issued to TIBCO Five
Hundred Thousand (500,000) shares of common stock of IXnet
Holdings, par value $0.01 per share ("Common Stock"),
represented by a stock certificate registered in the name
of TIBCO (the "Certificate"). This reflects a value of $20
per share, which represents the average closing price on
the National Association of Securities Dealers Automated
Quotations System
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<PAGE>
of IXnet Holdings' common stock from September 1, 1999 to
the date hereof.
The foregoing payments shall constitute, INTER ALIA, payment in full of the
$1,100,000 in minimum License Fees (as defined in the License Agreement)
contained in the License Agreement. The parties further agree and acknowledge
that delivery of the Certificate representing the Common Stock shall be deemed
to satisfy in full Ten Million Dollars ($10,000,000) of the aforesaid payment
obligation.
b. In respect of CA Five, IXnet shall pay to TIBCO Six Hundred Thousand
Dollars ($600,000) as follows:
(i) upon delivery by TIBCO to IXnet of all of the relevant
Enhancements (as described in CA Five) - i.e., all the
Enhancements to the Developed Software on the one hand and
the port to certain Embedded Software on the other - under
CA Five, 50% of the payment allocated to such Enhancement
as the Total Charge (as defined in CA Five) therefor; and
(ii) upon IXnet's acceptance of each such Enhancement, the
remaining 50% of the payment allocated to such Enhancements
as the Total Charge therefor. IXnet shall nonetheless be
permitted to separately accept each Enhancement to the
Developed Software and pay the proportionate share with
respect thereto.
Each of the payments described in this Section 2(b) shall be due and payable
upon delivery or acceptance, as the case may be, and TIBCO shall invoice IXnet
in respect thereof.
c. Each such cash payment under this Section 2 shall be in U.S. dollars
by wire transfer of immediately available funds to an account designated by
TIBCO reasonably in advance of such respective dates and shall be net of any
Taxes (as defined in the License Agreement).
d. Each of such CA Four and CA Five shall constitute a separate Work
Order (as defined in the License Agreement) and no further obligations of TIBCO
with respect to such Work Orders shall arise by virtue of this Agreement.
e. The cash payments to be made hereunder by IXnet to TIBCO in accordance
with this Section 2 shall be unsecured.
f. To the extent the terms of payments described in this Section 2 are
inconsistent with the terms of payment described in the License Agreement or any
Ancillary Agreement, this Section 2 will control.
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3. MUTUAL REPRESENTATIONS AND WARRANTIES. TIBCO on the one hand and each of
IXnet Holdings and IXnet on the other hand represent and warrant to the other as
follows:
a. Organization. It is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation.
b. Authorization of Transaction. It has full corporate power and
corporate authority to execute and deliver this Agreement and the Ancillary
Agreements to which it is a party and to perform its obligations hereunder and
thereunder. The execution and delivery by it of this Agreement and the Ancillary
Agreements to which it is a party, and the performance of its obligations
hereunder and thereunder, have been duly authorized by any requisite corporate
action on its part, and the Agreement and each Ancillary Agreement to which it
is a party has been executed and delivered by it. This Agreement and each
Ancillary Agreement to which it is a party constitutes the valid and legally
binding obligation of it, enforceable in accordance with its terms and
conditions, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
c. Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of it and its subsidiaries is subject
or any provision of the charter or bylaws of any of it and its subsidiaries or
(ii) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which any of it and its
subsidiaries is a party or by which it is bound or to which any of its assets is
subject ( or result in the imposition of any security interest upon any of its
assets), which violation, conflict, breach, default, acceleration, right to
accelerate, terminate, modify or cancel, or notice would have a material effect
on the transactions contemplated hereunder. None of it and its subsidiaries
needs to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order for the
parties to consummate the transactions contemplated by this Agreement, except
such notices, filings, authorizations, consents or approvals that have already
been given, made or obtained.
4. REPRESENTATIONS BY TIBCO. TIBCO represents and warrants to IXnet Holdings and
IXnet that:
a. TIBCO is acquiring the Common Stock for TIBCO's own account and not
with a view to, or for sale in connection with, any distribution thereof in
violation of the Securities Act of 1933, as amended (the "Securities Act"), and
any sale, transfer or other disposition of the Common Stock by TIBCO will be
made in compliance with all applicable provisions
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of the Securities Act and the rules and regulations promulgated thereunder.
TIBCO consents to the placement of the following legend (or a substantially
similar legend) on each certificate representing the Common Stock:
THE SHARES OF COMMON STOCK EVIDENCED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW.
NEITHER THE SHARES OF COMMON STOCK EVIDENCED HEREBY NOR
ANY INTEREST OR PARTICIPATION THEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, SUCH REGISTRATION REQUIREMENTS;
b. TIBCO understands and acknowledges that the Common Stock has not been
registered under the Securities Act and that the sale provided for in this
Agreement is being made pursuant to exemptions provided in the Securities Act or
the rules and regulations promulgated thereunder and that the reliance of IXnet
Holdings and IXnet on such exemption is predicated in part on TIBCO's
representations set forth herein;
c. TIBCO further represents that TIBCO has received all the information
that it has requested in connection with its decision to receive the Common
Stock. TIBCO acknowledges that it has received a Prospectus dated August 12,
1999 with respect to the registered offering of 6,500,000 shares of IXnet
Holdings common stock (the "Prospectus");
d. TIBCO further represents that TIBCO is experienced in evaluating
companies such as IXnet Holdings, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment, and has the ability to bear the economic risks of such investment
for an indefinite period. TIBCO further represents that it has conducted its own
independent review and analysis of the business, assets, condition, operation
and prospects of IXnet Holdings and acknowledges that it has had access during
the course of discussions and negotiations relating to this Agreement and the
Ancillary Agreements and prior to the receipt of the Common Stock to such
information (including audited financial statements) relating to IXnet Holdings
as it has desired and that it has had the opportunity to ask questions of and
receive answers from IXnet Holdings concerning the business, management and
financial affairs of IXnet Holdings and to obtain additional information (to the
extent IXnet Holdings possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the accuracy of any
information furnished to TIBCO or to which TIBCO has had access;
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e. TIBCO further represents that TIBCO is an "accredited investor" within
the meaning of subparagraph (a) of Rule 501 under the Securities Act;
f. TIBCO understands and agrees that the Common Stock may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act or an exemption therefrom and that in the absence of an effective
registration statement covering the Common Stock or an available exemption from
registration under the Securities Act, the Common Stock must be held
indefinitely. TIBCO understands that, because the required holding period
condition has not yet been satisfied, the benefits of Rule 144 promulgated under
the Securities Act are not presently available to TIBCO (and that all other
conditions of Rule 144 must also be satisfied before TIBCO can then sell the
Common Stock under Rule 144); and
g. TIBCO's true and correct federal tax identification number is
indicated below on the signature page hereto.
5. NO ADDITIONAL REPRESENTATIONS. In entering into this Agreement, TIBCO
acknowledges that neither IXnet Holdings nor IXnet has made any representations
or warranties of any kind whatsoever regarding the business, financial
condition, operations, results of operations or future prospects of IXnet
Holdings or IXnet, except as expressly provided in this Agreement. TIBCO
acknowledges that, except for the representations and warranties of IXnet
Holdings contained herein and the legal opinion referred to in Section 1, TIBCO
has relied solely upon its own investigation and analysis in determining to
receive the Common Stock, and acknowledges that neither IXnet Holdings nor IXnet
nor any of their respective directors, officers, employees, affiliates, agents
or representatives makes any representation or warranty, either express or
implied, as to IXnet Holdings or the accuracy or completeness of any of the
information regarding IXnet Holdings provided or made available to TIBCO or its
agents or representatives.
6. IXNET HOLDINGS REPRESENTATIONS AND WARRANTIES. IXnet Holdings represents and
warrants to TIBCO as follows:
a. Since the date of the Prospectus, there has not been any material
adverse change in the business or financial condition of IXnet Holdings;
b. Since the date of the Prospectus, IXnet Holdings has made all filings
with the Securities and Exchange Commission that it has been required to make
under the Securities Act and the Securities Exchange Act of 1934, as amended
("Exchange Act") (collectively, the "Public Reports"). Each of the Public
Reports has complied with the Securities Act and Exchange Act and the rules and
regulations promulgated thereunder in all material respects;
c. The shares of Common Stock subject to this Agreement have been duly
authorized, validly issued, fully paid and nonassessable under the General
Corporation Law of the State of Delaware; and
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d. TIBCO has received good, valid and marketable title to the Common
Stock, free and clear of all liens, claims, restrictions and encumbrances,
except for those under applicable securities law and except for those, if any,
resulting from TIBCO's own acts.
THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT AND IN CA FOUR ARE LIMITED
WARRANTIES AND ARE THE ONLY REPRESENTATIONS AND WARRANTIES MADE BY IXNET
HOLDINGS, IXNET AND TIBCO IN RESPECT OF THE CERTIFICATE AND THE DELIVERY TO AND
ACCEPTANCE BY TIBCO THEREOF. NEITHER PARTY MAKES OR RECEIVES ANY ADDITIONAL
REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, OR STATUTORY. NO AGENT, CONTRACTOR
OR EMPLOYEE OF A PARTY, EXCEPT SUCH PARTY'S DULY AUTHORIZED REPRESENTATIVE, IS
AUTHORIZED TO ALTER OR EXCEED THE REPRESENTATION OR WARRANTY OBLIGATIONS OF SUCH
PARTY AS SET FORTH ABOVE.
7. LIMITATIONS OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER
TIBCO NOR IXNET SHALL BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, SPECIAL,
PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS
OR REVENUES OR SIMILAR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, WARRANTY, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OF ANY KIND,
WHETHER ACTIVE OR PASSIVE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES; EXCEPT, HOWEVER, THAT TIBCO OR IXNET, AS THE CASE MAY BE, SHALL BE
LIABLE TO THE OTHER TO THE EXTENT THAT SUCH DAMAGES ARISE FROM THIRD PARTY
CLAIMS FOR WHICH SUCH OTHER PARTY IS ENTITLED TO BE INDEMNIFIED BY SUCH PARTY.
Each party releases the other from all obligations, liability, claims, or
demands relating to this Agreement in excess of the limitations provided for in
this Section 7. The parties acknowledge that the limitations set forth in this
Section are integral to the consideration provided in connection with this
Agreement and that, were any party to assume any further liability other than as
set forth herein, such consideration would of necessity be set substantially
higher or lower, as the case may be.
b. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE
LIABILITY LIMITATIONS IN THE LICENSE AGREEMENT AND THE NETWORK AGREEMENT SHALL
CONTINUE TO GOVERN WITH RESPECT TO ALL MATTERS ADDRESSED THEREBY.
c. The obligations and liabilities of IXnet Holdings under this Agreement
shall be limited to those representations and warranties and covenants made by
it hereunder. IXnet Holdings shall have no obligations or liabilities hereunder
with respect to representations, warranties or covenants made by IXnet.
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8. NOTICES
a. All notices given under this Agreement must be in writing and will be
effective if delivered by hand, dispatched by facsimile, or sent by airmail,
postage prepaid, or by courier service, addressed as follows:
If to TIBCO:
TIBCO Finance Technology Inc.
3375 Hillview Avenue
Palo Alto, CA 94304-1213
Attention: Chief Financial Officer
with a copy to General Counsel, at the same address.
----------------------------------------------------
If to IXnet Holdings or IXnet:
c/o IXnet, Inc.
Wall Street Plaza
88 Pine Street
New York, NY 10005
Attention: Chief Financial Officer
with a copy to General Counsel, at the same address.
----------------------------------------------------
or to such other address as either party may substitute by prior notice.
b. Notices dispatched by facsimile shall be deemed to have been received
on the date of dispatch; notices sent by courier shall be deemed to have been
received within three days from the date sent; and notices sent by registered
airmail shall be deemed to have been received ten business days from the date
sent.
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9. MISCELLANEOUS
a. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. No party
may assign or transfer this Agreement in whole or in part or any of the rights
or responsibilities set forth herein without the express written consent of the
other parties (which consent shall not be unreasonably withheld or unduly
delayed); PROVIDED, HOWEVER, that either party may assign any and all of its
rights and obligations hereunder without such written consent but upon written
notice thereof to the other party (i) to any Affiliate (as defined in the
License Agreement), (ii) to any joint venture in which the assignor owns at
least 50% of the equity interest, (iii) pursuant to any sale or transfer of all
or substantially all of its business or assets, (iv) pursuant to any merger or
reorganization of such party or (v) as part of a bona fide pledge to a third
party lending institution or syndicate of collateral of the assignor's rights
hereunder. In the event of any assignment, the assignor shall remain liable for
the performance of the obligations of the assignee; PROVIDED, HOWEVER, that, in
the event of any assignment for which written consent is not required hereunder,
assignor shall not be responsible for assignee's performance if (i) together
with the written notice required hereunder, the assignor provides reasonable
documentation and other support to the other party that the assignee is at least
as capable as assignor to perform all of assignor's obligations hereunder and
(ii) the other party does not reasonably object. Any attempted assignment in
violation hereof will be null and void. The penultimate sentence of Section 24
of the License Agreement is hereby amended to read as the third sentence of this
Section 9(a) reads.
b. This Agreement, together with the Ancillary Agreements and the License
Agreement, constitutes the complete and exclusive statement of the agreement
between the parties as relates to the subject matter hereof and thereof and
supersedes all proposals, oral or written, and all other representations,
statements, negotiations and undertakings relating to the subject matter
c. No change in, addition to, or waiver of any of the provisions of this
Agreement shall be binding upon any party unless in writing signed by an
authorized representative of such party. No waiver by any party of any breach by
the other party of any of the provisions hereof or thereof shall be construed as
a waiver of that or any other provision on any other occasion.
d. In the event any one or more of the provisions of this Agreement shall
be held by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in effect
and this Agreement shall be read as though the offending provision had not been
written.
e. The captions used in this Agreement are inserted for the convenient
reference of the parties and in no way define, limit or describe the scope or
intent of this Agreement or any part hereof.
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f. Notwithstanding anything to the contrary contained in this Agreement,
the prevailing party in a controversy or claim shall have the right to collect
its reasonable expenses incurred in enforcing this Agreement, including
reasonable attorneys' fees.
g. EXCEPT TO THE EXTENT THE GENERAL CORPORATE LAW OF THE STATE OF
DELAWARE SHALL APPLY, THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY THE
LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE EXCLUSIVE
PERSONAL JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN NEW YORK
COUNTY, NEW YORK, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT,
EXCEPT THAT IN ACTIONS SEEKING TO ENFORCE ANY ORDER OR ANY JUDGMENT OF SUCH
COURTS SUCH PERSONAL JURISDICTION SHALL BE NONEXCLUSIVE. The United Nations
Convention on Contracts for the International Sale of Goods is excluded from
application hereto.
h. This Agreement is solely for the benefit of the parties hereto and no
third parties shall have any express or implied rights as a third-party
beneficiary hereunder; except, however, that the provisions of this Agreement,
the License Agreement and the Ancillary Agreements are intended for the benefit
of, and to be enforceable by, IPC Information Systems, Inc., a Delaware
corporation and currently the owner of more than 80% of the outstanding common
stock of IXnet Holdings.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first set forth above.
ACCEPTED BY:
INTERNATIONAL EXCHANGE TIBCO FINANCE TECHNOLOGY, INC.
NETWORKS, LTD. [Federal ID Number 77-036885]
By: /s/ Charles F. Auster By: /s/ Mark E. Palmer
--------------------------- -------------------------------
Name: Charles F. Auster Name: Mark E. Palmer
Title: Chief Operating Officer and Title: Senior Vice President, General
Executive Vice President Counsel and Company Secretary
IXNET, INC. and
By: /s/ Charles F. Auster By: /s/ Michael Parlapiano
--------------------------- -------------------------------
Name: Charles F. Auster Name: Michael Parlapiano
Title: Chief Operating Officer and Title: Senior Vice President, Americas
Executive Vice President
and
By: /s/ Simon Yencken
-------------------------------
Name: Simon Yencken
Title: Chief Executive Officer
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Exhibit 99.1
[IXnet LOGO]
IXNET PRESS CONTACT: IXNET INVESTOR CONTACT:
Procter Lippincott Ron Corwin
Spring, O'Brien & Co. IXnet
212-620-7100 x228 212-412-6450
[email protected] [email protected]
-------------------------
TIBCO FINANCE PRESS CONTACT:
Jeff Wenker
Edelman Worldwide
650-968-4033
[email protected]
-----------------------
FOR IMMEDIATE RELEASE
---------------------
IXNET AND TIBCO FINANCE TECHNOLOGY
ANNOUNCE STRATEGIC RELATIONSHIP
TO CREATE
AN INTELLIGENT GLOBAL FINANCIAL EXTRANET
- MOVE ACCELERATES CONTENT DELIVERY ON SEAMLESS GLOBAL PLATFORM -
NEW YORK, September 28th - IXnet, Inc. (Nasdaq NMS: EXNT) and TIBCO
Finance Technology, Inc. today announced a series of strategic
initiatives and agreements aimed at creating the world's first
"Intelligent Global Financial Extranet" by combining and leveraging the
advantages of IXnet's global network with TIBCO's Internet and enterprise
infrastructure and data distribution software.
As part of the transaction, TIBCO Finance will take an equity interest in
IXnet, Inc. IXnet provides a high-performance global extranet designed
exclusively for the financial community, serving more than 500 financial
services firms in 34 countries. TIBCO Finance Technology is a global
leader in financial solutions that are enabling the world's E-Finance.
IXnet will use its highly scalable, reliable and fault-tolerant network
to deliver normalized applications and data to its customers by embedding
TIBCO's multicasting "publish/subscribe" technology. The combination will
create a unique network infrastructure with embedded intelligence,
delivering band-
<PAGE>
width, subject-based addressing, trading turret integration, and
application management capabilities.
Among the key features of this new relationship are:
o A channel partner agreement whereby IXnet will offer TIBCO products,
including information distribution (TIBOnline Direct(TM)), API messaging
(TIB(R)/Rendezvous(TM)) and Application Management (TIB/Hawk(TM)) to
IXnet's clients;
o A related channel partner agreement whereby TIBCO Finance will offer
IXnet's network and hosting services to its clients as part of an overall
technology solution;
o Added support from TIBCO for the VxWorks Operating System that powers the
trading turrets of IPC Information Systems, Inc., IXnet's parent company,
further enhancing the number of operating systems that TIB/Rendezvous runs
on;
o The integration of multiple, disparate services and applications through a
single access point, using TIBCO Finance's technology to enable the
development of a robust IXnet interface;
o A centrally managed, event-driven infrastructure (TIBCO's enterprise-wide
network delivery product, TIBOnline Direct) that allows user firms to
access internal and external information sources in multiple formats so,
instead of having to build their own infrastructure, these firms can now
"tap into" IXnet's TIBOnline Direct-enabled delivery platform;
o End-to-end network and application monitoring offered by IXnet to its
clients with TIB/Hawk as its centerpiece management system;
o A "Joint Solutions" program combining TIBCO products with IXnet's network
technology services to deliver next generation solutions to the market
place.
This technology will significantly expand IXnet's ability to allow its customers
to exchange all forms of content over the IXnet global extranet platform.
"We are delighted to partner with TIBCO Finance to create a truly innovative and
integrated solution that meets our customers' growing needs for easy and
efficient normalized data access," David Walsh, CEO of IXnet, said. "Through a
common access point, the community of financial services professionals around
the globe will now be able to communicate seamlessly with each other. Together
with TIBCO Finance, we are creating leading-edge communications channels for the
financial industry. When users such as exchanges, ECNs, market data providers,
applications services providers, trading firms and end-users tap into our
next-generation information delivery infrastructure, they will find a much more
efficient means to communicate with each other," he added.
"IXnet has a state-of-the-art global extranet that enables access without
elaborate connections," said Simon Yencken, CEO of TIBCO Finance Technology Inc.
"Likewise, TIBCO has a state-of-the-art suite of products and
<PAGE>
services. By combining our event-driven infrastructure tools with IXnet's global
reach, we will be able to rapidly deploy significant solutions to those clients
regardless of where they are located. IXnet is a natural choice. This is an
important next step not just for our two companies, but for the entire
industry."
ABOUT IXNET: IXnet (Nasdaq: EXNT), a network services company, provides a
high performance global extranet designed exclusively for the financial
community. Through a single connection, IXnet delivers end-to-end
multiple data and voice communications solutions around the world, 24
hours a day. Customers get voice and data connectivity, plus financial
content and transactional capabilities, through the IXnet extranet
without having to access multiple disparate public networks or rely on
multiple customer service organizations. IXnet's customers comprise more
than 500 financial services firms located in 34 countries.
For more information about IXnet, please visit www.ixnet.com.
ABOUT TIBCO FINANCE TECHNOLOGY, INC: TIBCO Finance Technology Inc.
enables the world's E-Finance. As a global leader in financial solutions
and technologies, the company has developed a broad spectrum of
mission-critical offerings that include financial enterprise integration,
electronic trading, exchange automation, market data, and finance portal
solutions. TIBCO Finance has a worldwide client base of more than 400
blue chip customers. The TIBCO patented publish/subscribe methodology and
real-time event-driven e-commerce applications enable customers to
respond to rapidly changing markets and business events anywhere in the
world. Headquartered in Palo Alto, California, TIBCO Finance operates as
an independent subsidiary of Reuters Group, PLC. TIBCO Finance is the
exclusive reseller of TIBCO Software products in the financial services
industry. For more general information about TIBCO Finance's product
offerings, visit the company's Website at www.tibcofinance.com.
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