-----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, TXkOLkLjtvVh7uDcoEBXixyfDVMuQwnqgcb/76uDfdTDunFprLwjNdayMBkdjReM 6SO3YWrP/TMVOIob+BWvqQ== 0000898822-06-001152.txt : 20061103 0000898822-06-001152.hdr.sgml : 20061103 20061103102044 ACCESSION NUMBER: 0000898822-06-001152 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20061103 DATE AS OF CHANGE: 20061103 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IMPSAT FIBER NETWORKS INC CENTRAL INDEX KEY: 0001022329 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 521910372 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60701 FILM NUMBER: 061185047 BUSINESS ADDRESS: STREET 1: ELVIRA RAWSON DE DELLEPIANE 150 STREET 2: PISO 8 CITY: BUENOS AIRES STATE: C1 ZIP: C1107BCA BUSINESS PHONE: 54115170000 MAIL ADDRESS: STREET 1: ELVIRA RAWSON DE DELLEPIANE 150 STREET 2: PISO 8 CITY: BUENOS AIRES STATE: C1 ZIP: C1107BCA FORMER COMPANY: FORMER CONFORMED NAME: IMPSAT CORP DATE OF NAME CHANGE: 19960905 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MORGAN STANLEY CENTRAL INDEX KEY: 0000895421 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 363145972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 212-761-4000 MAIL ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: MORGAN STANLEY DEAN WITTER & CO DATE OF NAME CHANGE: 19980326 FORMER COMPANY: FORMER CONFORMED NAME: DEAN WITTER DISCOVER & CO DATE OF NAME CHANGE: 19960315 SC 13D/A 1 schedule13d.txt ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D (Rule 13d-101) 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. 6) IMPSAT Fiber Networks, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, Par Value $0.01 per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 45321T202 - -------------------------------------------------------------------------------- (CUSIP Number) Amy Kim Morgan Stanley 1585 Broadway NY, NY 10036 Tel: (212) 761-4416 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 25, 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) or 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 Rule 13d-7 for other parties to whom copies are to be sent. ================================================================================ CUSIP No. 45321T202 - ------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) MORGAN STANLEY - ------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [X] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER -0- NUMBER OF ------------------------------------------------- SHARES 8. SHARED VOTING POWER BENEFICIALLY 3,110,144 OWNED BY ------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER REPORTING -0- PERSON WITH ------------------------------------------------- 10. SHARED DISPOSITIVE POWER 3,110,144 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,110,144 - SEE ITEM 5 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.74% - SEE ITEM 5 - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! CUSIP No. 45321T202 - ------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) MORGAN STANLEY & CO. INCORPORATED - ------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [X] - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER -0- NUMBER OF ------------------------------------------------- SHARES 8. SHARED VOTING POWER BENEFICIALLY 3,110,144 OWNED BY ------------------------------------------------- EACH 9. SOLE DISPOSITIVE POWER REPORTING -0- PERSON WITH ------------------------------------------------- 10. SHARED DISPOSITIVE POWER 3,110,144 - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,110,144 - SEE ITEM 5 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.74% - SEE ITEM 5 - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! -3- AMENDMENT NO. 6 TO SCHEDULE 13D This Amendment No. 6 amends the Report on Schedule 13D of Morgan Stanley ("MS") and Morgan Stanley & Co. Incorporated ("MS&Co," collectively, the "Reporting Persons"), originally filed on April 3, 2003, as amended by Amendment No. 1 of Schedule 13D, filed on November 3, 2003, Amendment No. 2 of Schedule 13D, filed on January 14, 2004, Amendment No. 3 of Schedule 13D, filed on March 30, 2004, Amendment No. 4 of Schedule 13D, filed on November 22, 2004, and Amendment No. 5 of Schedule 13D, filed on November 24, 2004 (collectively, the "Schedule 13D"). Unless indicated otherwise, all items left blank remain unchanged and any items which are reported are deemed to amend and supplement the existing items in the Schedule 13D. Capitalized terms used without definitions in this Amendment No. 6 shall have the respective meanings ascribed to them in the Schedule 13D. ITEM 1. SECURITY AND ISSUER. ITEM 2. IDENTITY AND BACKGROUND. Item 2(e) is amended and supplemented by adding the following: During the last five years, none of the Reporting Persons, and to the knowledge of the Reporting Persons, none of the persons listed on Schedules A-B, has (1) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (2) has been a 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, other than, in the case of clause (2), as described in EXHIBIT C hereto. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended and supplemented by adding the following: On October 25, 2006, IMPSAT Fiber Networks, Inc., a Delaware corporation (the "Company"), entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated as of such date, by and among the Company, Global Crossing Limited, a Bermuda corporation ("GCL"), and GC Crystal Acquisition, Inc., a Delaware corporation and an indirect wholly owned subsidiary of GCL ("MergerCo"). Pursuant to the Merger Agreement, MergerCo will merge with and into the Company, the separate existence of MergerCo will cease, and the Company will be the surviving corporation (the "Merger"). Also on October 25, 2006, GCL and MS&Co entered into a Support Agreement (the "Support Agreement"), dated as of such date, pursuant to which MS&Co agreed to vote all of the Company securities over which it has beneficial ownership in favor of the transactions contemplated by the Merger Agreement, including the Merger, and to tender all of the Company's 6% Senior Guaranteed Convertible Notes due 2011--Series B (the "Series B Notes") owned by MS&Co pursuant to and in accordance with the terms of the Offer to Purchase contemplated by the Merger Agreement. The Support Agreement also provides for, among other things, restrictions on the ability of MS&Co to seek alternative transactions with respect to the Company as well as restrictions on the ability of MS&Co to transfer Company securities pending the completion of the transactions contemplated by the Merger Agreement, subject to limited exceptions. -4- A copy of the Support Agreement is filed as Exhibit 99.1 hereto and the information set forth therein is incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 of the Schedule 13D is hereby replaced in its entirety as follows: (a) For the purposes of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), MS may be deemed to beneficially own 3,110,144 shares of common stock, par value $0.01 per share of the Company ("Common Stock") or approximately 30.74% of the outstanding shares of Common Stock, based on 10,116,100 shares of Common Stock outstanding as of June 30, 2006, as reported in the Company's Form 10-Q for the quarterly period ended June 30, 2006, consisting of 2,563,465 shares of Common Stock, 424,133 shares of Common Stock issuable upon conversion of the Series B Notes beneficially owned by MS (convertible based on a price per share of $20.78) and 122,546 shares of Common Stock issuable upon the exercise of options to acquire shares of Common Stock (with a weighted average exercise price of $8.565 per share). For the purposes of Rule 13d-3 promulgated under the Exchange Act, MS&Co may be deemed to beneficially own 3,110,144 shares of common stock, par value $0.01 per share of the Company ("Common Stock") or approximately 30.74% of the outstanding shares of Common Stock, based on 10,116,100 shares of Common Stock outstanding as of June 30, 2006, as reported in the Company's Form 10-Q for the quarterly period ended June 30, 2006, consisting of 2,563,465 shares of Common Stock, 424,133 shares of Common Stock issuable upon conversion of the Series B Notes beneficially owned by MS&Co (convertible based on a price per share of $20.78) and 122,546 shares of Common Stock issuable upon the exercise of options to acquire shares of Common Stock (with a weighted average exercise price of $8.565 per share). Reporting Persons do not affirm the existence of a group and are filing this statement jointly pursuant to Rule 13d-1(k)(1) promulgated under the Exchange Act. (b) By virtue of the relationship previously reported under Item 2 of this statement, MS may be deemed to have shared voting and dispositive power with respect to the shares of Common Stock owned by MS&Co. (c) None of the Reporting Persons has effected any transaction in the Common Stock during the past 60 days. None of the Reporting Persons are aware of any information that indicates that any other Reporting Person has effected any such transaction. (d) By virtue of the relationships described in Item 2 of this statement, MS may be deemed to have the power to direct the receipt of dividends declared on the shares of Common Stock held by MS&Co and the proceeds from the sale of the shares of Common Stock. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. The information included under Item 4 above is incorporated by reference herein. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 99.1 Support Agreement, dated as of October 25, 2006, by and between Global Crossing Limited and Morgan Stanley & Co. Incorporated. 99.2 Joint Filing Agreement, by and between Morgan Stanley & Co. Incorporated and Morgan Stanley, dated as of November 2, 2006. -5- SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: November 2, 2006 MORGAN STANLEY By: /s/ Jill Ostergaard -------------------------------------- Name: Jill Ostergaard Title: Authorized Signatory MORGAN STANLEY & CO. INCORPORATED By: /s/ Jill Ostergaard -------------------------------------- Name: Jill Ostergaard Title: Authorized Signatory -6- SCHEDULE A EXECUTIVE OFFICERS AND DIRECTORS OF MORGAN STANLEY The names of the Directors and the names and titles of the Executive Officers of Morgan Stanley ("MS") and their principal occupations are set forth below. The business address of each of the Directors or Executive Officers is that of MS at 1585 Broadway, New York, New York 10036. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MS and each individual is a United States citizen. NAME TITLE - ---- ----- *John J. Mack Chairman of the Board and Chief Executive Officer *Roy J. Bostock Chairman of the Partnership for a Drug-Free America *Erskine B. Bowles President of the University of North Carolina *Howard J. Davies(1) Director, The London School of Economics and Political Science *C. Robert Kidder Principal of Stonehenge Partners, Inc. *Donald T. Nicolaisen Director *Charles H. Noski Director *Hutham S. Olayan President, Chief Executive Officer and Director of Olayan America Corporation *Charles E. Phillips, Jr. President and Director of Oracle Corporation *O. Griffith Sexton Adjunct professor of finance at Columbia Business School *Laura D'Andrea Tyson Dean of the London Business School *Klaus Zumwinkel(2) Chairman of the Board of Management of Deutsche Post AG Walid Chammah Head of Investment Banking Jonathan Chenevix-Trench(3) Chairman, Morgan Stanley International Zoe Cruz Co-President Thomas V. Daula Chief Risk Officer James P. Gorman President and COO, Global Wealth Management Group David W. Heleniak Vice Chairman Roger C. Hochschild President and COO, Discover Financial Services Jerker M. Johansson(4) Co-Head of Institutional Sales and Trading Gary G. Lynch Chief Legal Officer Alasdair Morrison(5) Chairman and CEO, Morgan Stanley Asia Eileen K. Murray Head of Global Operations and Technology David W. Nelms Chairman and CEO, Discover Financial Services Thomas R. Nides Chief Administrative Officer and Secretary Linda Riefler Chief Talent Officer Robert W. Scully Co-President Neal A. Shear Co-Head of Institutional Sales and Trading David H. Sidwell Executive Vice President and Chief Financial Officer Cordell G. Spencer(6) Deputy Head of Investment Banking Owen D. Thomas President and COO, Investment Management 1 Howard Davies is an English citizen 2 Klaus Zumwinkel is a German citizen 3 Jonathan Chenevix-Trench is an English citizen 4 Jerker Johansson is a Swedish citizen 5 Alasdair Morrison is an English citizen 6 Cordell Spencer is a Canadian citizen * Director SCHEDULE B EXECUTIVE OFFICERS AND DIRECTORS OF MORGAN STANLEY & CO. INCORPORATED The names of the directors and the names and titles of the executive officers of Morgan Stanley & Co. Incorporated ("MS&Co") and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of MS&Co at 1585 Broadway, New York, New York 10036. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MS&Co. and each individual is a United States citizen. Name Present Principal Occupation - ---- ---------------------------- *Walid A. Chammah Managing Director of MS&Co and Head of Investment Banking of MS *Charles Chasin Managing Director of MS&Co and Chief of Staff to the Co-Presidents of MS *Zoe Cruz Managing Director, Chief Executive Officer and President of MS&Co and Co-President of MS *Richard Portogallo Managing Director of MS&Co and Head of U.S. Equity Division of MS *Neal A. Shear Managing Director of MS&Co and Co-Head of Institutional Sales and Trading of MS *Cordell G. Spencer(1) Managing Director of MS&Co and Deputy Head of Investment Banking of MS John H. Faulkner Managing Director, General Counsel and Secretary of MS&Co Paul C. Wirth Managing Director and Chief Financial Officer of MS&Co and Controller and Principal Accounting Officer of MS Jill W. Ostergaard Managing Director and Chief Compliance Officer of MS&Co David K. Wong Managing Director and Treasurer of MS&Co Alexander C. Frank Managing Director and Chief Operations Officer of MS&Co 1 Cordell G. Spencer is a Canadian citizen * Director SCHEDULE C Unless the context otherwise requires, the term "Morgan Stanley" means Morgan Stanley and its consolidated subsidiaries. (a) In April 2003, Morgan Stanley & Co. Incorporated ("MS&Co"), along with nine other financial services firms operating in the U.S., reached a settlement with the Securities and Exchange Commission ("SEC"), the New York State Attorney General's Office, the New York Stock Exchange ("NYSE"), the National Association of Securities Dealers, Inc. ("NASD"), and the North American Securities Administrators Association (on behalf of state securities regulators) to resolve their investigations relating to alleged research conflicts of interest. Without admitting or denying allegations with respect to violations of certain rules of the NYSE and NASD relating to investment research activities (there were no allegations of fraud or federal securities law violations made against MS&Co), Morgan Stanley agreed, among other things, to (1) pay $25 million as a penalty, (2) pay $25 million as disgorgement of commissions and other monies, (3) provide $75 million over five years to make available independent third-party research to clients and (4) be permanently enjoined from violating certain rules of the NYSE and NASD relating to investment research activities. (b) In November 2003, Morgan Stanley DW Inc. ("MSDWI") consented, without admitting or denying the findings, to an entry of an order (the "Order") that resolved the SEC's and NASD's investigations into certain practices relating to MSDWI's offer and sale of certain mutual funds from January 1, 2000 to the date of the Order. Pursuant to the Order, MSDWI was ordered to (1) cease and desist from committing any violations and any future violations of Section 17(a)(2) of the Securities Act of 1933, as amended, and Rule 10b-10 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (2) distribute for the benefit of certain customers who purchased funds through MSDWI pursuant to marketing arrangements between MSDWI and certain mutual fund complexes the amount of $50 million and (3) make certain disclosures and take certain other actions with respect to proprietary mutual funds. (c) In November 2004, Morgan Stanley reached a settlement with the SEC to resolve an informal accounting investigation by executing an offer of settlement and agreeing to entry of a cease-and-desist order. The SEC found that Morgan Stanley valued certain impaired aircraft in its aircraft leasing business in late 2001, late 2002 and early 2003, and certain bonds in its high-yield bond portfolio in late 2000, in a manner that did not comply with generally accepted accounting principles, and thus violated financial reporting, recordkeeping and internal control provisions of the federal securities laws. The resolution did not involve any restatement of past financial statements, any monetary penalty or any allegation of fraud. (d) In December 2004, MS&Co and MSDWI reached a settlement with the NYSE under which Morgan Stanley executed two stipulations of facts and consent to penalty. The first stipulation was with respect to Morgan Stanley's failure to comply with certain prospectus delivery requirements, operational deficiencies and other matters, and included a fine of $13 million. The second stipulation was with respect to employee defalcations, and included a fine of $6 million. (e) In January 2005, the SEC announced a settlement with MS&Co and Goldman Sachs & Co. resolving the SEC's investigation relating to initial public offering ("IPO") allocation practices. The SEC filed a settled civil injunction action in the United States District Court for the District of Columbia against MS&Co relating to the allocation of stock to institutional customers in IPOs underwritten during 1999 and 2000. Under the terms of the settlement, Morgan Stanley agreed, without admitting or denying the allegations, to the entry of a judgment enjoining it from violating Rule 101 of Regulation M and the payment of a $40 million civil penalty. The court approved the settlement on February 4, 2005. The complaint alleges that MS&Co violated Rule 101 of Regulation M by attempting to induce certain customers who received allocations of IPOs to place purchase orders for additional shares in the aftermarket. (f) In May 2006, MS&Co reached a settlement with the SEC, NYSE and NASD relating to its production of email in the research analyst and IPO investigations from December 2000 through at least July 2005. The complaint alleges that Morgan Stanley did not timely produce emails in response to requests in those matters because it did not diligently search for back-up tapes containing responsive emails until 2005, and because it over-wrote back-up tapes potentially containing responsive email until at least December 2002. Without admitting or denying the allegations of the complaint, Morgan Stanley consented to (1) a permanent injunction barring future violations of Section 17(b) of the Exchange Act (which requires, among other things, that Morgan Stanley respond promptly to SEC subpoenas and requests) and the relevant regulations promulgated thereunder and (2) the payment of a $15 million civil penalty, $5 million of which will be paid to NASD and the NYSE. In addition, MS&Co and MSDWI have been involved in a number of civil proceedings which concern matters arising in connection with the conduct of its business. Certain of such proceedings have resulted in findings of violation of federal or state securities laws. Each of these proceedings was settled by MS&Co and MSDWI consenting to the entry of an order without admitting or denying the allegations in the complaint. All of such proceedings are reported and summarized in the MS&Co Form BD and the MSDWI Form BD filed with the SEC, which descriptions are hereby incorporated by reference. EX-99.1 2 supportagreement.txt EXECUTION VERSION =============================================================================== SUPPORT AGREEMENT by and among GLOBAL CROSSING LIMITED, and MORGAN STANLEY & CO., INCORPORATED DATED AS OF OCTOBER 25, 2006 =============================================================================== SUPPORT AGREEMENT SUPPORT AGREEMENT, dated as of October 25, 2006 (this "AGREEMENT"), by and among Global Crossing Limited, a Bermuda corporation ("PARENT"), and Morgan Stanley & Co., Incorporated, a Delaware corporation (the "STOCKHOLDER"). WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, IMPSAT Fiber Networks, Inc., a Delaware corporation (the "COMPANY"), and GC Crystal Acquisition, Inc., a Delaware corporation and indirect wholly owned subsidiary of Parent ("MERGERCO"), are entering into an Agreement and Plan of Merger (as the same may be amended, varied, novated, modified supplemented or restated from time to time, the "MERGER AGREEMENT") (terms used but not defined herein shall have the meanings set forth in the Merger Agreement) pursuant to which MergerCo will be merged with and into the Company with the Company as the surviving corporation (the "MERGER"); WHEREAS, as of the date hereof, the Stockholder is the record and beneficial owner (for purposes of this Agreement, "beneficial owner" (including "beneficially own" and other correlative terms) shall have the meaning set forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "EXCHANGE ACT")) of the number and type of shares of Company Stock, Company Options, Company Notes and Company Warrants set forth opposite Stockholder's name on Schedule I hereto (such shares of Company Stock, Company Options, Company Notes and Company Warrants, together with any other equity securities of the Company, the power to dispose or the voting power over which is acquired by Stockholder during the period from and including the date hereof through and including the date on which this Agreement is terminated in accordance with its terms, collectively, the "SUBJECT SHARES"); WHEREAS, as a condition to and as an inducement to Parent's willingness to enter into the Merger Agreement, Stockholder is entering into this Agreement concurrently with the execution and delivery of the Merger Agreement. NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements contained in this Agreement and intending to be legally bound, the parties agree as follows: ARTICLE I VOTING MATTERS Section 1.1 AGREEMENT TO VOTE. Stockholder hereby agrees that, from and after the date hereof until the termination of this Agreement, at any meeting of the stockholders of the Company and at any postponement or adjournment thereof, and in any action by written consent of the stockholders of the Company, Stockholder shall vote or consent (or cause to be voted or consented), in person or by proxy, all the Subject Shares beneficially owned by Stockholder (i) in favor of (a) the approval and adoption of the Merger Agreement and (b) any actions necessary to consummate the Merger on the terms and subject to the conditions of the Merger Agreement or necessary to consummate any of the other transactions contemplated by the Merger Agreement, (ii) against any action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or of the Stockholder or under this Agreement, and (iii) except as otherwise agreed in writing by Parent, against any action, agreement, transaction or proposal that would reasonably be expected to result in any of the conditions to the Company's obligations under the Merger Agreement not being fulfilled or that is intended, or would reasonably be expected to prevent, impede, interfere with, delay or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement. Section 1.2 PROXIES. If, and only if, Stockholder fails to comply with the provisions of Section 1.1, the Stockholder agrees that such failure shall result, without any further action by the Stockholder and effective as of the date of any such failure, in the appointment of Parent and each of its executive officers from and after the date of determination of such failure until the termination of this Agreement as the Stockholder's attorney, agent and proxy, with full power of substitution, to vote and otherwise act with respect to all of the Stockholder's Subject Shares, at any meeting of the Stockholders of the Company, however called, and in any action by consent of the Stockholders of the Company, on the matters and in the manner specified in Section 1.1 hereof. This power of attorney and proxy is irrevocable during the term of this Agreement and coupled with an interest and, to the extent permitted under applicable Law, shall be valid and binding on any Person to whom the Stockholder may transfer any of its Subject Shares in breach of, or in accordance with, this Agreement. Stockholder hereby revokes any and all previous proxies granted that may conflict or be inconsistent with the matters set forth in Section 1.1 above and Stockholder agrees not to, directly or indirectly, grant any proxy or power of attorney with respect to the matters set forth in Section 1.1 above. Section 1.3 COMPANY NOTE. Stockholder hereby agrees to validly tender pursuant to and in accordance with the terms of the Offer to Purchase (as contemplated in the Merger Agreement), as soon as practicable after commencement but in no event later than the scheduled expiration date of the Offer to Purchase, all of the outstanding Company Notes beneficially owned by the Stockholder; provided in any event that the total consideration received by the Stockholder for each such Company Note (but, for the avoidance of doubt, not any related consent) is no less than the total consideration received by any other holder of Company Notes in respect of such Company Notes (excluding any related consents). Section 1.4 WAIVER OF APPRAISAL RIGHTS AND CLAIMS. Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger and the transactions contemplated by the Merger Agreement that the Stockholder may have. At the Effective Time, other than in the case of fraud, Stockholder hereby releases and discharges Parent, the Company, and each of their respective Subsidiaries from any and all claims, fees, demands, costs, damages, liabilities, obligations, expenditures, remedies, liens, rights to arbitration, rights of action and/or causes of action of any nature whatsoever, whether known or unknown, foreseeable or unforeseeable, that Stockholder has, may have or might assert against Parent, the Company or any of their respective Subsidiaries arising prior to the Effective Time as a result of being a shareholder of the Company or any of its Subsidiaries or a creditor of the Company or its Subsidiaries, or in connection with the Offer to Purchase, the execution and delivery of the Merger Agreement or the consummation of the Merger and the transactions contemplated thereby. ARTICLE II REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER Stockholder hereby represents and warrants to the Company as follows with respect to itself only: Section 2.1 EXISTENCE; AUTHORIZATION. Stockholder, if not an individual, is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the laws of the jurisdiction of its organization or formation. Stockholder has all requisite capacity, power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Stockholder and assuming due execution and delivery by Parent, this Agreement constitutes a legal, valid and binding obligation of Stockholder enforceable against Stockholder in accordance with its terms. Section 2.2 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder will not, (i) conflict with or violate the certificate of incorporation, limited liability company agreement or equivalent organizational documents, as the case may be, of Stockholder, (ii) conflict with or violate any applicable Law by which Stockholder is bound or affected or (iii) result in any breach of, or constitute a default (or event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any Subject Shares (other than pursuant to this Agreement) pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation of Stockholder (including any trust agreement, voting agreement, stockholders agreement or voting trust), except for any such conflicts, violations, breaches, defaults or other occurrences that would not reasonably be expected to prevent or materially delay the ability of Stockholder to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement. (b) The execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder shall not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Entity by Stockholder, except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not reasonably be expected to prevent or materially delay the ability of Stockholder to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement, and except for any items referred to in Section 2.3 of the Merger Agreement or Schedule 2.3(b) of the Disclosure Letter. Section 2.3 OWNERSHIP OF SUBJECT SHARES. Stockholder is the record and beneficial owner of, and has good, valid and marketable title to, the Subject Shares set forth opposite its name on Schedule I. Stockholder has sole voting power, and sole power of disposition, with respect to all of its Subject Shares. The Subject Shares owned by Stockholder are all of the equity securities of the Company and Company Notes beneficially owned by Stockholder as of the date hereof. The Subject Shares owned by Stockholder are free and clear of all Liens, other than any Liens created by this Agreement. The Stockholder has not appointed or granted any proxy inconsistent with this Agreement, which appointment or grant is still effective, with respect to the Subject Shares. ARTICLE III COVENANTS OF THE STOCKHOLDERS Stockholder hereby covenants and agrees as follows: Section 3.1 RESTRICTION ON TRANSFER OF SHARES. Stockholder shall not, directly or indirectly: (i) offer for sale, sell (including short sales), transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift) or enter into any Contract, option, derivative, hedging or other arrangement or understanding (including any profit-sharing arrangement) with respect to or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of (any of the foregoing, a "TRANSFER"), any or all of the Subject Shares or any interest therein, except to any Affiliate of Stockholder who agrees in writing to be bound by the terms of this Agreement and except for Transfers of the Company Notes pursuant to the Offer to Purchase contemplated by the Merger Agreement, (ii) grant any proxies or powers of attorney, deposit any of the Subject Shares into a voting trust or enter into any other voting arrangement or permit to exist any Lien of any nature whatsoever with respect to the Subject Shares (other than any Liens created by or arising under this Agreement or existing by operation of law) or (iii) commit or agree to take any of the foregoing actions. Section 3.2 INCONSISTENT AGREEMENTS. Stockholder agrees that it shall not enter into any agreement or understanding or make any commitment with any Person that would violate any provision or agreement contained in this Agreement. Section 3.3 Certain Events. To the extent permitted by applicable Law, Stockholder agrees that this Agreement and the obligations hereunder are intended to 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 the Stockholder's administrators, successors or receivers. Section 3.4 COOPERATION WITH TRANSACTION. Stockholder agrees to provide any information concerning Stockholder reasonably requested by the Company or Parent that is required in any regulatory application or filing made, or approval sought, in connection with the Merger. Section 3.5 ADDITIONAL PURCHASES. Stockholder agrees that in the event (a) any shares of Company Stock or other equity securities of the Company are issued pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of capital stock of the Company on, of or affecting the Subject Shares of Stockholder or otherwise; (b) Stockholder purchases or otherwise acquires beneficial ownership of any shares of Company Stock or other equity securities of the Company after the execution of this Agreement; or (c) Stockholder acquires the right to vote or share in the voting of any shares of Company Stock or other equity securities of the Company after the execution of this Agreement (such Company Stock or other equity securities of the Company, collectively, the "NEW SHARES"), Stockholder agrees to vote such New Shares in the same manner as the Subject Shares and agrees that any such New Shares shall be subject to the same restrictions as the Subject Shares as set forth in this Agreement. Stockholder also agrees that any New Shares acquired or purchased by Stockholder shall be subject to the terms of this Agreement to the same extent as if they constituted Subject Shares. Notwithstanding the foregoing, Stockholder agrees that it will not acquire beneficial ownership of any Company Notes following the date of this Agreement. Section 3.6 NON-SOLICITATION. The Stockholder hereby agrees to be bound by and subject to the provisions set forth in Sections 4.8(a), (c) and (d) of the Merger Agreement as such provisions apply to the Company. Notwithstanding the foregoing, this provision shall not restrict any employee of the Stockholder or of any of its affiliates that is an officer or director of the Company from acting in such Person's capacity as an officer or director of the Company. ARTICLE IV MISCELLANEOUS Section 4.1 TERMINATION. Except with respect to Section 4.15 and this Article IV, this Agreement shall automatically terminate, and none of the Company or any Stockholder shall have any rights or obligations hereunder and this Agreement shall become null and void and have no further effect, upon the earliest to occur of (a) the Effective Time and (b) the date of termination of the Merger Agreement in accordance with its terms. Notwithstanding the foregoing, no such termination shall relieve any party hereto of any liability for damages resulting from any breach of this Agreement (which breach, and liability therefor, shall not be affected by termination of this Agreement). Section 4.2 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the representations and warranties in this Agreement shall survive the termination of this Agreement. Section 4.3 NOTICES. All notices and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or delivered by a nationally recognized overnight courier service to the parties hereto at the following addresses (or at such other address for a party hereto as shall be specified by like notice): If to the Parent, Global Crossing Limited 200 Park Avenue Florham Park, New Jersey 07932 Attention: John McShane Office of the General Counsel Fax: (973) 360-0538 Telephone: (973) 937-0100 with a copy to: Latham & Watkins LLP 885 Third Avenue Suite 1000 New York, New York 10022 Attention: David S. Allinson, Esq. James Gorton, Esq. Fax: (212) 751-4864 Telephone: (212) 906-1200 If to the Stockholder, to the address listed on Schedule I. Section 4.4 HEADINGS. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Section 4.5 SEVERABILITY. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of 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 hereto 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 4.6 ENTIRE AGREEMENT. This Agreement and the Merger Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof and thereof. Section 4.7 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto, in whole or in part (whether by operation of Law or otherwise), without the prior written consent of the other parties, and any attempt to make any such assignment without such consent shall be null and void. Section 4.8 PARTIES IN INTEREST. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Section 4.9 MUTUAL DRAFTING. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing this Agreement to be drafted. Section 4.10 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF TRIAL BY JURY. (a) This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law rules of such state. All Actions arising out of or relating to this Agreement shall be heard and determined in any state or federal court sitting in the State of Delaware (b) Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any Action arising out of or relating to this Agreement, and each of the parties hereto irrevocably agrees that all claims in respect to such Action may be heard and determined exclusively in any Delaware state or federal court sitting in the State of Delaware. Each of the parties hereto agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (c) Each of the parties hereto irrevocably consents to the service of any summons and complaint and any other process in any other Action relating to the Merger, on behalf of itself or its property, by the personal delivery of copies of such process to such party. Nothing in this Section 4.10 shall affect the right of any party hereto to serve legal process in any other manner permitted by law. Section 4.11 AMENDMENT: WAIVER. No provision of this Agreement may be waived unless in writing signed by all of the parties to this Agreement, and the waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision. This Agreement may be amended, supplemented or otherwise modified only by a written agreement executed by all of the parties to this Agreement. Section 4.12 FURTHER ASSURANCES. From time to time, at any other party's reasonable request and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to carry out and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. Section 4.13 SPECIFIC PERFORMANCE. The transactions contemplated by this Agreement are unique. Accordingly, each of the parties hereto acknowledges and agrees that, in addition to all other remedies to which it may be entitled, each of the parties hereto is entitled to seek a decree of specific performance; PROVIDED, that such party hereto was not in material breach of its representations, warranties, covenants and agreements hereunder at the time of the other party's material breach of its representations, warranties, covenants and agreements under this Agreement. The parties hereto agree that if any party shall have failed to perform its obligations under this Agreement, then the party hereto seeking to enforce this Agreement against such nonperforming party under this Agreement shall be entitled to seek specific performance and injunctive and other equitable relief, and the parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief. This provision is without prejudice to any other rights that any party hereto may have against another party hereto for any failure to perform its obligations under this Agreement. Section 4.14 COUNTERPARTS. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Section 4.15 WIRE TRANSFER. Parent shall (and shall instruct the Company to) take all action necessary to ensure that Stockholder has a reasonable opportunity to complete a Letter of Transmittal prior to Closing and to deliver such Letter of Transmittal to the Paying Agent at the Closing. Subject to the delivery by Stockholder of a completed Letter of Transmittal, Parent shall instruct the Company to instruct the Paying Agent to deliver to the Stockholder the Merger Consideration to which it is entitled, as well as the payment for any Company Notes tendered by it, by wire transfer on the Closing Date. [Signature page follows.] IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement as of the date first above written. GLOBAL CROSSING LIMITED By: /s/ Mitchell Sussis ----------------------- Name: Mitchell Sussis Title: SVP MORGAN STANLEY & CO., INCORPORATED By: /s/ James E. Bolin ----------------------- Name: James E. Bolin Title: Managing Director [SIGNATURE PAGE TO SUPPORT AGREEMENT] EX-99.2 3 ex992.txt JOINT FILING AGREEMENT EXHIBIT 99.2 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, each of the persons named below agrees to the joint filing of a Statement on Schedule 13D (including amendments thereto) with respect to the Common Stock, par value $0.01, of IMPSAT Fiber Networks, Inc., a Delaware corporation, and further agrees that this Joint Filing Agreement be included as an exhibit to such filings provided that, as contemplated by Section 13d-1(k)(ii), no person shall be responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. Dated as of November 2, 2006. MORGAN STANLEY By: /s/ Jill Ostergaard -------------------------------------- Name: Jill Ostergaard Title: Authorized Signatory MORGAN STANLEY & CO. INCORPORATED By: /s/ Jill Ostergaard -------------------------------------- Name: Jill Ostergaard Title: Authorized Signatory -----END PRIVACY-ENHANCED MESSAGE-----